NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1405-19
IN THE MATTER OF CLINTON BLOOMFIELD, CITY OF NEWARK. _______________________
Submitted April 28, 2021 – Decided May 28, 2021
Before Judges Vernoia and Enright.
On appeal from the New Jersey Civil Service Commission, Docket No. 2018-2466.
Fusco & Macaluso Partners, LLC, attorneys for appellant Clinton Bloomfield (Giovanna Giampa, on the brief).
Chasan Lamparello Mallon & Cappuzzo, PC, attorneys for respondent City of Newark (Cheyne R. Scott, of counsel and on the brief; Cindy Nan Vogelman, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Debra A. Allen, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Petitioner Clinton Bloomfield appeals from an October 24, 2017 Civil
Service Commission final agency decision upholding his removal from his
conditional employment as a police officer with respondent City of Newark,
Department of Public Safety, based on disciplinary charges related to
petitioner's failure to appear for, and unavailability to appear for, required
assignments and work shifts because of his religious beliefs. Petitioner contends
we should reverse the Commission's determination because: (1) respondent
violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-50, by failing to offer petitioner reasonable accommodations to allow him to
observe his sincerely held religious beliefs; (2) the Administrative Law Judge
(ALJ) upheld petitioner's removal under an incorrect legal standard; and (3) the
Commission's determination is arbitrary, capricious, and unreasonable because
it is not supported by substantial credible evidence. Unconvinced, we affirm.
I.
Respondent conditionally hired petitioner as a Newark police officer on
or about July 31, 2017. Petitioner's employment was contingent upon his
successful completion of training at the New Jersey State Police Academy
(academy). He testified he practices Judaism and is a member of The Church of
A-1405-19 2 God and Saints of Christ. The tenets of his religion do not permit him to work
on the Sabbath—sundown on Friday nights to sundown on Saturday nights.
At all times pertinent to this appeal, the City of Newark and the Fraternal
Order of Police, Newark Lodge No. 12 (FOP) were parties to a collective
negotiations agreement (CNA), which governed the terms and conditions of
employment for Newark police officers and prospective officers, including
petitioner.1 The CNA mandates a "4/2 schedule" for officers, meaning officers
are required to work four days on and two days off each week, "which is no t
limited to just having Monday through Friday schedules or weekends off." The
morning shifts for "[t]he 4/2 schedules . . . can range from 7:00 [a.m.] to 3:00
[p.m.], [or] 8:00 [a.m.] to 4:00 [p.m.]"; the afternoon schedules range "from 3:00
[p.m.] to 11:00 [p.m.] or 4:00 [p.m.] to 12:00 [a.m.]"; and "the first
shifts . . . would be 11:00 [p.m.] until 7:00 [a.m.] or 12:00 [a.m.] until 8:00
[a.m.]"
Lieutenant James Byrd of the Newark Police Department (department) is
a twenty-six-year veteran of the department and is assigned as the Executive
Officer and Associate Director of the Essex County Police Academy. He
1 The FOP is the collective negotiations "representati[ve] for . . . police officers in the City of Newark." A-1405-19 3 testified that approximately twenty to thirty officers are assigned on each of the
department's shifts. He also testified "each of those shifts [would absolutely]
require [an officer] to work on a Friday night or a Saturday before sunset." He
explained that when the department needs to fill a shift or does not have enough
officers on a given shift and "no one volunteers" to work, the department
chooses officers to work "mandatory . . . overtime."
The CNA also includes a "traditional" seniority system amongst officers,
which, among other things, governs the department's grant of officers' requests
to use vacation days. The CNA provides, "Vacation shall be chosen by all police
officers . . . in order of seniority in rank of their unit," and "each employee shall
be entitled to designate up to five . . . vacation days as single[-]use vacation
days[,] which shall be taken within that calendar year with the approval of the
Commanding Officer."
Prior to the commencement of his training at the academy, petitioner
signed an "Acknowledgment of Work Schedule" form and a "Statement of
Understanding." By executing the "Acknowledgment of Work Schedule,"
petitioner recognized and agreed his duties as a police officer required his
availability to work on all "days, afternoons, nights, weekends[,] and/or holidays
as required by" respondent; and by executing the "Statement of Understanding,"
A-1405-19 4 petitioner confirmed his understanding of respondent's employment policies,
including its training and graduation requirements for officers.
Petitioner first requested an accommodation based on his religious beliefs
in late November or early December 2016, prior to his conditional hire by
respondent. Petitioner requested that the Commission allow him to reschedule
his Entry Level Law Enforcement Exam—originally scheduled on a Saturday—
because he was not "able to participate in Saturday testing for religious reasons."
The Commission requested a letter from petitioner's "rabbi or other official from
[his] temple verifying [his] request for non-Saturday testing." Petitioner
provided the letter, and the Commission granted his request. 2
Petitioner next requested an accommodation based on his religious beliefs
in response to an order from respondent directing "all . . . recruits [to] respond
to Atlantic Uniform [(AU)] . . . either on Saturday," October 21, 2017,
"or . . . Saturday," October 28, 2017, "between" 10 a.m. and 6 p.m. Petitioner
testified he was unable to attend the ordered October 21 fitting because it
conflicted with religious services at his church, which he attends each Saturday
2 The letter is not included in the record on appeal.
A-1405-19 5 from "10:00 or 11:00 [a.m.]" until "the sun sets."3 Petitioner explained he went
to AU the next day and the owner informed him if he returned the following
Saturday, the owner would ensure he was the first one fitted, and "it would only
take five minutes." Petitioner arrived on Saturday, October 28, at approximately
9 a.m., and was fitted before attending services. 4
Petitioner first requested an accommodation based on his religious beliefs
from respondent in early December 2017, in response to a directive ordering all
recruits to attend mandatory academy graduation training on Saturday,
December 9, from 6:45 a.m. to 1:00 p.m. On December 3, petitioner sent an
Administrative Submission to Captain Donald M. Robertella, Commander of the
Police Training Division, acknowledging the training was "deemed mandatory"
but "request[ing]" to be "excuse[d]" from the training because he was unable to
work on the Sabbath due to his religious practice. Petitioner sent a second
Administrative Submission to Robertella that day "request[ing]" to be excused
3 Petitioner advised the beginning of the services is "depend[ent] on [whether it is] daylight savings time." 4 Petitioner testified he was not "violating any of the laws of [his] church" by attending the fitting, because his religion only prevents working on the Sabbath, and the fitting was "just . . . putting on a jacket," which is not considered "working." He advised "[i]f the . . . fitting was to . . . interfere with the service," he "would [not] . . . have been able to go."
A-1405-19 6 from work from January 4 through January 10, 2018, because working on those
dates would conflict with his "annual religious observation" of the "Holy
Convocation."
In addition to his Administrative Submissions, petitioner also sent
Robertella: (1) a letter dated June 28, 2017 from Elder Clement Bloomfield—
the pastor of petitioner's church—confirming petitioner's religion did not permit
him to work "from [sunset] on Friday until [sunset] on Saturday"; and (2) a
December 2017 letter from pastor Bloomfield stating petitioner's religious
beliefs "required" him to be "actively involved in full worship" in observance of
the "Holy Convocation" from January 4 to January 10, 2018, and he was not
permitted "to work . . . during these days." 5 Although petitioner did not inform
respondent at this time, petitioner later testified he was also unvailable to work
during Passover—"[a]round April 13 . . . to April 20"—but that he would "just
take it as vacation."
On December 7, 2017, petitioner emailed Robertella confirming petitioner
"underst[ood] . . . the meeting on [December 9, 2017 was] deemed mandatory,"
and reiterating that he would "not be able to attend" due to his "religious
5 The parties stipulated before the ALJ that Elder Clement Bloomfield is petitioner's father. A-1405-19 7 practice." On December 8, 2017, Robertella denied petitioner's requests,
advising petitioner via email:
We have made every effort to accommodate your request, [but] unfortunately we cannot excuse you.
As a [r]ecruit, you must complete ALL mandatory training to graduate from the [a]cademy. Mandatory training includes the meeting on Saturday, December 9, 2017.
When you accepted employment with the Newark Police Division, you acknowledged in writing . . . that you understood and accepted that as a Newark [p]olice [o]fficer you are required to be available for a [twenty- four-]hour [seven] day a week work schedule and that your work schedule will include, "working days, afternoons, nights, weekends, and/or holidays as required by [respondent]." You signed the Acknowledgement of Work Schedule on May 25, 2017[,] and a copy was made a part of your Candidate Investigation File.
At the time that you signed the Acknowledgement of Work Schedule, you failed to notify the Newark Police Candidate Investigation [p]ersonnel, the Newark Police Division [t]raining [s]taff, and the . . . [a]cademy of your request for excusal from duty. Moreover, you participated in the . . . [a]cademy each Friday from August 4 through to December 1 and were released from duty after sundown on Fridays on many occasions.
[Respondent] has a duty to protect the safety and wellbeing of the public [twenty-four] hours a day [seven] days a week.
A-1405-19 8 In his reply to Robertella's email, petitioner stated that if he was not granted the
accommodations, he did "not see [him]self having a future with" respondent.
Petitioner did not attend the mandatory graduation training on December
9, 2017. Two days later, petitioner sent an Administrative Submission to
Robertella explaining he was absent from mandatory graduation training "based
on [his] religious practice." The next day, respondent issued a "[p]reliminary
[n]otice of [d]isciplinary [a]ction" suspending petitioner without pay and
charging him with: "[c]hronic [i]nefficiency or [i]ncompetency," claiming "his
unwillingness to work [the department's] mandatory schedule clearly
demonstrates an unwillingness and/or inability to meet, obtain or produce results
necessary for a satisfactory performance"; and failure to "[o]be[y] . . . [o]rders"
and "[a]bsence [w]ithout [l]eave" because he did not appear for, or participate
in, the mandatory graduation training despite Robertella's order.6 On December
13, 2017, Byrd recommended a departmental hearing on the charges.
Respondent held a hearing on January 23, 2018. Petitioner appeared with
counsel, waived his right to the hearing, and indicated he intended to appeal
6 Of the three charges against petitioner, the notice only specifies "[c]hronic [i]nefficiency or [i]ncompetency . . . shall . . . subject [an employee] to dismissal."
A-1405-19 9 respondent's decision to the Commission. Respondent issued a "[f]inal [n]otice
of [d]isciplinary [a]ction," finding petitioner "guilty" on all charges. The notice
further stated petitioner was "remov[ed]" from his position effective December
12, 2017.7
Petitioner appealed to the Commission, and the matter was referred to the
Office of Administrative Law as a contested case. An ALJ conducted a two-day
trial. Petitioner argued "he did not violate the department's rules and regulations
because he requested accommodations for his religious beliefs," and he
"claim[ed] religious discrimination based on [respondent's] failure to
accommodate" in violation of the LAD. Respondent argued petitioner "violated
its rules and regulations," and "the . . . accommodation[s petitioner] requested
would cause [respondent] undue hardship."
Respondent called two witnesses during its case at the hearing: Byrd, and
Newark Police Department Deputy Chief Arthur Jorge. Byrd testified that, after
receiving petitioner's requests for accommodations, he considered the
circumstances of the requests, including the department's required "schedule and
rotation," the CNA's seniority system and requirements, and the potential use of
7 The notice incorrectly states the effective date of petitioner's removal was December 12, 2018. A-1405-19 10 petitioner's vacation time to accommodate his requests. Byrd explained granting
the accommodations would be "in conflict with the seniority provisions of the
[CNA]"; "would violate [the CNA] with regard to single[-]use [vacation] days";
and would otherwise "lead to staffing shortages," compromising respondent's
operational efficiency and posing a "safety" concern "for the public [and] . . . the
officers." He reasoned "there are numerous tasks that come along within a day
that are [unforeseen]," and "[m]inimal staffing is [only] based on what
[respondent] can foresee." He testified respondent "require[s] . . . not
only . . . minimal staff[,] but [it needs] to have additional people staffed or the
people who have their assignments remain and call in for their position so
[respondent does not] have to backtrack for the other positions that are absent."
He explained that granting petitioner's "accommodation would produce an
undue hardship on" respondent.
Jorge is a twenty-one-year veteran of the department and serves as Deputy
Chief of Operations, a position that entails overseeing all of the department's
operations, including "proper staffing" of officers. Jorge testified that to ensure
respondent is prepared to address "[c]ritical incidents [that] happen throughout
the [c]ity on a[ny] given shift," officers are often required to work overtime due
to sickness, vacation, training, and other mandatory requirements, in addition to
A-1405-19 11 their regular shifts. He testified the department requires "sufficient [manpower]
to stabilize a neighborhood based on what happens," and there "are things that
unfortunately [respondent] just can't predict." He explained Newark is different
from other cities because "[i]t's a very dynamic city," and "[a] lot of population
comes in and out . . . . A lot of tourists, a lot of workers." He also testified the
city often has "rallies, . . . demonstrations, . . . raids," and "multiple festivals
that are going on . . . [with] thousands of people in a small geographical grid[,]
and these areas have to be secured," requiring respondent "to accommodate
according to need."
Like Byrd, Jorge testified granting petitioner's requested accommodations
"would lead to operational inefficiency." When asked "why one individual['s
accommodations] would make a difference," Jorge explained respondent "lost
1/3" of its officers since a large layoff in 2010, "and the attrition rate is still
continuing." He testified respondent is "losing officers faster than [it]
can . . . hire" them due to retirement and disability. According to Jorge, as a
result, "when an officer . . . call[s] out sick[, respondent has] to backfill [the
officer's shift with] overtime" because respondent does not "have extra officers
available to just plop into these areas [to] save on overtime." He also explained
A-1405-19 12 officers are often required to work beyond the end of their scheduled shifts due
to sickness, vacation, and other mandatory requirements within the department.
During the presentation of his case, petitioner testified to the sincerity of
his religious beliefs and that respondent's mandatory work schedule conflicted
with those beliefs. He argued granting his requested accommodations would
impose merely a "[de minimis]" burden on respondent. When asked why he
signed the "Acknowledgment of Work Schedule" stating his duties as a police
officer required that he be available for work on all "days, afternoons, nights,
weekends[,] and/or holidays as required by" respondent, petitioner explained :
Because I can work seven days of the week. . . . The only thing that I asked was that on Friday[s] I could either do the 7:00 [a.m.] to 3:00 [p.m.] tour or the 8:00 [a.m.] to 4:00 [p.m.], . . . and then in the overnight on Saturday I could do either the 11:00 [p.m.] to 7:00 [a.m.] or the 12:00 [a.m.] to 8:00 [a.m.] In those time frames it doesn't conflict with the Sabbath and so that's seven days . . . and I can work every holiday.
Petitioner acknowledged that when he executed the form, he "understood" the
department is "a 24/7 operation," but he stated he believed if he submitted his
requests and documentation to respondent, it would accommodate him.
Petitioner also called the president of the Newark FOP, Detective James
Stewart, Jr., who testified not "everybody is ordered to work" during rallies and
festivals, but rather the scheduling for these events is first made on a "volunteer
A-1405-19 13 basis." He explained an officer could work multiple days if he or she
volunteered, but "[n]obody would be ordered to work multiple days of that
event." Further, he stated that even if the department was short on personnel for
a given event, officers required to work mandatory overtime are able to pick
their own shifts, "whether it would be Friday, Saturday[,] or Sunday." He also
testified an officer who is unable to work an assigned shift can "swap shifts"
with other officers, and officers typically do not get held over from one shift to
another. Finally, he testified that although an officer working a shift not
specified in the CNA constitutes a violation of the agreement, the FOP would
not "make an issue of" the violation, and it would not "stand in the way of
a[n] . . . [o]fficer coming on a job that has an obstacle because of a schedule."
He asserted the FOP may work out a different schedule in certain circumstances,
and it had done so previously within different units of respondent.8
In a September 27, 2019 initial decision, the ALJ recommended upholding
respondent's termination of petitioner's employment. However, rather than
8 Petitioner also called Charesse Forbes, who is a member of the same church as petitioner. Forbes testified concerning the church's tenet of honoring the Sabbath from sunset on Friday to sunset on Saturday and that no work may be performed during that period. Petitioner also called Brian Funchess, who is petitioner's manager at petitioner's employment as a security supervisor at a hospital. Funchess described petitioner's duties and explained the hospital has never required petitioner to work during the Sabbath. A-1405-19 14 characterizing respondent's action as a disciplinary "removal," the ALJ deemed
it a "release[] . . . at the end of [petitioner's] working test period."
The ALJ determined petitioner "was extremely sincere in his testimony
regarding the importance of his religious beliefs." She also found the following:
(1) petitioner's "ability to use vacation days is restricted by the [CNA], where
he would only be able to rely on this method five times"; (2) due to the CNA's
seniority provision, respondent "would be unable to accommodate [petitioner]'s
requests for a week off for the Holy Convocation and another week off for
Passover if senior officers requested those days off"; (3) petitioner's
"proposition to shift swap is unreliable due to provisions set forth in the [CNA]
and the frequency of transfers of the officers"; (4) "[e]ven if [petitioner] found
an officer to consistently swap shifts with, [respondent] would be burdened to
find a replacement if that officer called out sick, took vacation time, or was
transferred to another shift"; and (5) "due to the[] dynamics [of the
city], . . . every officer counts[,] and the absence of [petitioner] could negatively
affect [respondent]'s operations."
The ALJ was also "persuaded that [respondent]'s policies are reasonable,
and that [respondent proved], by a preponderance of the credible evidence, that
[it] will be unable to accommodate [petitioner] based upon his religious beliefs
A-1405-19 15 and for the safety of its officers." The ALJ then concluded petitioner did not
sustain his burden of demonstrating respondent "released him at the end of his
working test period" "in bad faith." See N.J.A.C. 4A:2-4.3(b).
Petitioner filed exceptions to the ALJ's decision with the Commission. In
its final decision, the Commission noted "the ALJ inexplicably treated this
matter as a release at the end of the working test period appeal pursuant to
N.J.A.C. 4A:2-4.1 [to -4.3]," see N.J.S.A. 11A:2-6(a)(4), instead of as a
disciplinary "[r]emoval," see N.J.S.A. 11A:2-6(a)(1). The Commission found
petitioner, "as a [p]olice [o]fficer who had not yet fully completed his academy
training, had not yet even started his working test period." The Commission
noted "[t]he implication of [the] error [was] potentially significant" due to the
different burdens of proof associated with the two disciplinary actions, see
N.J.S.A. 11A:2-21, but it determined the "error [was] not fatal" because the ALJ
also found respondent "satisfied its burden of proof" for disciplinary removal by
proving its "policies are reasonable, . . . [that it] will be unable to accommodate
[petitioner] based upon his religious beliefs and for the safety of its officers,"
and that "the proffered disciplinary charges have been sustained by a
preponderance of the evidence," see ibid.; see also In re Polk, 90 N.J. 550, 560
(1982) ("[T]he usual burden of proof for establishing claims before state
A-1405-19 16 agencies in contested administrative adjudications is a fair preponderance of the
evidence.").
The Commission accepted the ALJ's factual findings and, despite the
ALJ's treatment of the matter "as a release at the end of the working test period,"
accepted the ALJ's conclusions. "Accordingly, the Commission reject[ed] any
findings or conclusions in the initial decision relating to [the] matter being
considered a working test period appeal"; found respondent "prove[d], by a
preponderance of the evidence, that [it] will be unable to accommodate
[petitioner] based upon his religious beliefs and for the safety of its officers";
and "uph[eld] . . . [petitioner]'s removal." 9 This appeal followed.
II.
"Our scope of review of an administrative agency's final determination is
limited." In re Adoption of Amends. to Ne., Upper Raritan, Sussex Cnty., 435
N.J. Super. 571, 582 (App. Div. 2014). When reviewing an administrative
agency's decision, our limited standard of review is guided by three inquiries:
(1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains
9 An administrative "agency head may reject or modify [an ALJ's] findings of fact, conclusions of law[,] or interpretations of agency policy in [its] decision," as long as he or she "state[s] clearly the reasons for doing so." N.J.S.A. 52:14B- 10(c). A-1405-19 17 substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238 (App. Div. 2019) (alteration in original) (quoting In re Carter, 191 N.J. 474, 482 (2007)).]
The burden of demonstrating that a final agency decision should be
reversed falls on the party challenging the decision. Adoption of Amends., 435
N.J. Super. at 582. "[W]here there is substantial evidence in the record to
support more than one regulatory conclusion, it is the agency's choice which
governs," id. at 583 (alteration in original) (quoting Murray v. State Health
Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)), and we "may not
substitute [our] . . . judgment for the agency's, even though [we] might have
reached a different result," In re Stallworth, 208 N.J. 182, 194 (2011) (quoting
Carter, 191 N.J. at 483). However, we are "in no way bound by an
agency's . . . determination of a strictly legal issue." K.K. v. Div. of Med.
Assistance & Health Servs., 453 N.J. Super. 157, 161 (App. Div. 2018) (quoting
L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 204 (2015)).
Petitioner first claims the Commission's decision should be reversed
because the ALJ mistakenly analyzed the case as a termination at the end of a
A-1405-19 18 working test period instead of as a disciplinary removal. Petitioner correctly
argues those separate and different actions involve different burdens of proof.
In a disciplinary removal case, "the employer shall have the burden of proof[,]
while in [cases of termination at the end of an employee's working test period],
the employee shall have the burden of proof." N.J.S.A. 11A:2-21; see also
N.J.S.A. 11A:2-6(a)(1) to (4); N.J.A.C. 4A:2-4.3(b) (providing in cases of
termination at the conclusion of the working test period, the burden falls on the
employee to prove the employer's "action was in bad faith"); Polk, 90 N.J. at
560 (explaining an appointing authority has the burden of establishing the truth
of disciplinary charges by a preponderance of the evidence for the removal of a
civil service employee). We agree with petitioner's claim the ALJ erred by
finding respondent terminated petitioner's employment at the end of his working
test period, rather than considering respondent's action as the disciplinary
removal respondent acknowledges it was.
We are not persuaded the ALJ's error requires a reversal of the
Commission's decision. The Commission recognized the ALJ's error but did not
repeat the error in rendering its final decision. The Commission instead
"considered the record and the ALJ's initial decision," made "an independent
evaluation of the record," accepted the ALJ's findings of fact, and applied the
A-1405-19 19 burden of proof applicable to a disciplinary removal. The Commission then
determined respondent "satisfied its burden of proof" by establishing its
"policies are reasonable, . . . [that it] will be unable to accommodate [petitioner]
based upon his religious beliefs and for the safety of its officers," and "that the
proffered disciplinary charges have been sustained by a preponderance of the
evidence." Based on those findings, the Commission determined respondent
sustained its burden of proof of establishing the disciplinary charges against
petitioner.
We review the Commission's final decision on appeal, see Silviera-
Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 136-37 (2016); R. 2:2-
3(a)(2) (providing, in pertinent part, "appeals may be taken to the Appellate
Division as of right . . . to review final decisions or actions of any state
administrative agency" (emphasis added)), and the record establishes the
Commission applied the correct burden of proof standard in making its final
determination, and properly placed the burden on respondent, see N.J.S.A.
11A:2-21. The ALJ's initial error therefore provides no basis to reverse the
Commission's final decision.
Petitioner also argues the Commission's determination respondent was
"unable to accommodate" petitioner and its resulting decision to uphold
A-1405-19 20 petitioner's termination are not supported by credible record evidence. He
further contends the decision should be reversed because he presented a prima
facie case of religious discrimination.
"Under the LAD, employers cannot impose any condition upon employees
that 'would require a person to violate . . . sincerely held religious practice or
religious observance,'" Tisby v. Camden Cnty. Corr. Facility, 448 N.J. Super.
241, 248 (App. Div. 2017) (alteration in original) (quoting N.J.S.A. 10:5-
12(q)(1)), "including but not limited to the observance of any particular day or
days or any portion thereof as a Sabbath or other holy day in accordance with
the requirements of the religion or religious belief," N.J.S.A. 10:5 -12(q)(1).
"However, an exception exists if an employer cannot [reasonably] accommodate
'the employee's religious observance or practice without undue hardship on the
conduct of the employer's business' after putting forth a 'bona fide effort' to
accommodate." 10 Tisby, 448 N.J. Super. at 248 (quoting N.J.S.A. 10:5-
12(q)(1)). "An 'undue hardship' is defined as 'an accommodation requiring
unreasonable expense or difficulty, unreasonable interference with the safe or
10 "An accommodation is reasonable if it 'eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully.'" EEOC v. Geo Grp., Inc., 616 F.3d 265, 291 (3d Cir. 2010) (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986)).
A-1405-19 21 efficient operation of the workplace or a violation of a bona fide seniority system
or a violation of any provision of a bona fide [CNA].'" Ibid. (quoting N.J.S.A.
10:5-12(q)(3)(a)); see also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,
79 (1977) ("Without a clear and express indication from Congress, we cannot
agree . . . that an agreed-upon seniority system [in a CNA] must give way when
necessary to accommodate religious observances.").
"To analyze claims under the LAD, New Jersey has adopted the
'procedural burden-shifting methodology articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 [(1973)].'"11 Tisby, 448 N.J. Super. at 248 (quoting
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)). Under this analytical
paradigm, petitioner has the burden to "first demonstrate a prima facie case of
employment discrimination." Ibid. To establish a prima facie case of religious
discrimination, petitioner must demonstrate: "(1) [he] belongs to a protected
11 "In LAD cases, we 'frequently look to federal precedent . . . as "a key source of interpretive authority,"' unless 'that law sharply diverges from prior authority construing the LAD [or does not] further[] the objectives of the LAD [or] comport[] with our prior holdings.'" Crisitello v. St. Theresa Sch., 465 N.J. Super. 223, 228 n.2 (App. Div. 2020) (second, third, fourth, and fifth alterations in original) (quoting Aguas v. State, 220 N.J. 494, 510 n.4 (2015)); see also Turner v. Wong, 363 N.J. Super. 186, 210 (App. Div. 2003) (finding "[i]n interpreting the LAD, the federal law has consistently been considered for guidance").
A-1405-19 22 class; (2) []he was performing [his] job at a level that met [his] employer's
legitimate expectations; (3) []he suffered an adverse employment action; and (4)
others not within the protected class did not suffer similar adverse employment
actions."12 Ibid. (quoting El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.
145, 167 (App. Div. 2005)).
"Once a [petitioner] establishes a prima facie case [of discrimination], an
'inference of discrimination' is created." Ibid. (quoting Zive, 182 N.J. at
449). The burden then shifts to the employer to "combat the inference
of discrimination by articulating a 'legitimate, nondiscriminatory reason for the
employer's action.'" Id. at 248-49 (quoting Zive, 182 N.J. at 449). Where a
12 Petitioner claims that to support a prima facie case of "failure to accommodate based on religious beliefs, [an] employee must show[:] . . . [(1)] they hold a sincere religious belief that conflicts with a job requirement, . . . [(2)] they informed their employer of the conflict, and . . . [(3)] they were disciplined for failing to comply with the conflicting requirement." To support this proposition, petitioner cites to Webb v. City of Philadelphia, 562 F.3d 256, 259 (3rd Cir. 2009). However, the standard proffered by petitioner differs from the standard we articulated in Tisby v. Camden County Correctional Facility, 448 N.J. Super. 241, 248 (App. Div. 2017) and El-Sioufi v. St. Peter's University Hospital, 382 N.J. Super. 145, 167 (App. Div. 2005)—two cases concerning alleged failures to accommodate employees' religious beliefs—in which we found the standard to prove a prima facie claim of discrimination based on a failure to accommodate is the same standard we use to analyze all employment-related religious discrimination claims under the LAD. Because the standard articulated in Webb does not "comport with [these] prior holdings," we do not apply it here. Crisitello, 465 N.J. Super. at 228 n.2 (quoting Aguas, 220 N.J. at 510 n.4). A-1405-19 23 petitioner alleges a failure to accommodate, the employer must provide a
"legitimate[,] non-discriminatory reason[] why" it "cannot accommodate 'the
employee's religious observance or practice without undue hardship on the
conduct of the employer's business' after putting forth a 'bona fide effort' to
accommodate." Ibid. (quoting N.J.S.A. 10:5-12(q)(1)).
"If the employer can meet its burden, the burden again shifts back to the
employee to prove the reason provided by the employer is 'merely a pretext for
discrimination and not the true reason for the employment decision.'" Id. at 249
(quoting Zive, 182 N.J. at 449). "A plaintiff can prove pretext by using either
circumstantial or direct evidence that 'discrimination was more likely than not a
motivating or determinative cause of the action' or [the] plaintiff can discredit
the legitimate reason provided by the employer." Ibid. (quoting El-Sioufi, 382
N.J. Super. at 173).
Here, it is undisputed petitioner established a prima facie case of religious
discrimination. Petitioner's arguments focus on the second prong of the
McDonnell Douglas paradigm. He contends respondent failed to satisfy its
burden of demonstrating it could not reasonably accommodate his religious
beliefs without undue hardship after making a bona fide effort to accommodate.
In other words, petitioner contends the Commission erred because the record
A-1405-19 24 lacks substantial credible evidence supporting a determination respondent made
a bona fide effort to accommodate petitioner's religious beliefs and that
respondent will suffer an undue hardship if it grants petitioner's requested
accommodations. See id. at 248; see also N.J.S.A. 10:5-12(q)(1). In his brief
on appeal, petitioner asserts that "not only did [respondent] not
offer . . . reasonable accommodation[s], . . . [it] did not make a good faith effort
to accommodate him."
We reject petitioner's argument because there is substantial credible
evidence supporting the Commission's findings. See Adoption of Amends., 435
N.J. Super. at 582 (quoting J.D. ex rel. D.D.H. v. N.J. Div. of Developmental
Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000)). Petitioner
acknowledges "Byrd testified as to the lengths [respondent] went to attempt to
accommodate [petitioner]." Byrd considered the department's required
"schedule and rotation"; examined the CNA's seniority system; reviewed
respondent's overtime policies and requirements; and assessed the potential for
petitioner to use vacation time to accommodate his requests for the purpose of
determining whether petitioner's religious beliefs and practices could be
accommodated.
A-1405-19 25 Petitioner argues respondent did not establish a bona fide effort to
accommodate him because "at no point was [he] actually privy to [respondent's
efforts] or even asked whether an accommodation would be amenable to him
and his religious practices." Petitioner contends respondent "did not even give
[him] the opportunity to be accommodated," and that respondent "could
have . . . put [him] on a probationary period, or 'working test period' to see how
his need for an accommodation would work." He argues "no individual has ever
been accommodated by the [d]epartment for religious reasons, [and
respondent]'s denial of [his] accommodation is based purely on conjecture or
speculation." See Miller v. Port Auth. of N.Y. & N.J., 351 F. Supp. 3d 762, 789
(D.N.J. 2018) ("An analysis of undue hardship may not be based on mere
speculation or conjecture.").
We are unpersuaded by petitioner's contentions. Petitioner requested
accommodations that were specific, well-defined, and known to respondent. He
sent two letters unequivocally advising respondent he: (1) could not work during
the Sabbath; (2) could not attend mandatory graduation practice because it fell
on the Sabbath; and (3) could not work the week of January 4 to 10, 2018, due
A-1405-19 26 to his religion. 13 Petitioner offers no reason respondent's failure to request his
participation in its efforts to determine whether it could grant the requested
accommodations caused him any prejudice or requires a finding respondent's
efforts, as described in detail by Byrd, were not bona fide. Again, the
accommodation petitioner required was clear and unequivocal. Indeed, he
informed respondent that if the accommodation he requested was not granted—
which did not yet include his inability to work during the week of Passover—he
did "not see [him]self having a future with" respondent. Petitioner does not
suggest there were any other reasonable accommodations—other than those he
specifically requested, and respondent considered and rejected—that respondent
may have provided without imposing the undue hardship described by Byrd and
Jorge. See EEOC v. Geo Group, Inc., 616 F.3d 265, 291 (3d Cir. 2010) (defining
a reasonable accommodation as one which "eliminates the conflict between
13 We do not address respondent's denial of petitioner's request to be excused from mandatory graduation training, nor do we address the charges of failure to "[o]be[y] . . . [o]rders" and "[a]bsence [w]ithout [l]eave" issued to petitioner subsequent to his absence from the training. Petitioner's disciplinary charge of "[c]hronic [i]nefficiency or [i]ncompetency" due to his purported "unwillingness to work [the department's] mandatory schedule . . . [and resulting] unwillingness and/or inability to meet, obtain[,] or produce results necessary for a satisfactory performance" subjected him to termination if sustained, and respondent did not tether that charge to petitioner's absence from graduation training. See N.J.A.C. 4A:2-2.3(a). A-1405-19 27 employment requirements and religious practices by allowing the individual to
observe fully" (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70
(1986))).
Petitioner also claims respondent "did not . . . give [him] the opportunity
to be accommodated" by "put[ting him] on a probationary period, or 'working
test period' to see how his need for an accommodation would work," and
"[s]ince no individual has ever been accommodated by the [d]epartment for
religious reasons," Byrd's and Jorge's testimony concerning the safety and
efficiency concerns associated with granting petitioner's accommodations
constitutes "pure[] . . . conjecture or speculation." See Miller, 351 F. Supp. 3d
at 789. We disagree.
"[A]n employer is not required 'to wait until it [feels] the effects' of [a]
proposed accommodation before determining its reasonableness." Ibid. (second
alteration in original) (quoting EEOC v. Firestone Fibers & Textiles Co., 515
F.3d 307, 317 (4th Cir. 2008)). Rather, "[e]mployers must be given leeway to
plan their business operations and possible accommodative options in advance,
relying on an accommodation's predictable consequences along the way." Ibid.
(quoting Firestone Fibers, 515 F.3d at 317). Thus, the fact respondent did not
grant, or "test," the accommodation petitioner requested did not preclude
A-1405-19 28 respondent from reasonably determining it could not provide the necessary
accommodations without undue hardship.
Further, respondent's determination that provision of the requested
accommodation would cause undue hardship was not based on either speculation
or conjecture. It was instead founded on the testimony, which the ALJ and
Commission found credible, of two experienced officers charged with
overseeing various operations within the department. Byrd and Jorge testified:
(1) concerning the unique nature and needs of the city; (2) that, due to the
circumstances extant in the city, the department "require[s] . . . not
only . . . minimal staff[,] but [also] to have additional people staffed"; (3) that
respondent is "losing officers faster than [it] can actually hire" and it thus does
not "have extra officers available" to cover the shifts petitioner requested off;
and (4) that granting petitioner's accommodations would therefore "lead to" the
department suffering from further "staffing shortages."
Petitioner requested to be excused for multiple weeks throughout the year
when respondent otherwise mandates all officers be available to ensure it is
prepared to handle whatever public safety issues may arise in the city. Byrd and
Jorge explained the department's staffing needs, the existence of staffing
shortages, the manner in which filling staffing needs is governed and limited by
A-1405-19 29 the CNA, and the need for officers to be available to work at all times due to the
normal and unique safety concerns presented daily in Newark. In addition, they
explained that permitting petitioner to use vacation time to accommodate his
religious observance "would violate" the CNA's seniority and vacation
provisions.14 See N.J.S.A. 10:5-12(q)(3)(a) (explaining an accommodation
which results in the violation of a CNA provision constitutes an undue hardship).
Their testimony is also wholly consistent with the Acknowledgement of
Work Schedule petitioner signed prior to the commencement of his training and
14 The CNA states, "Vacation shall be chosen by all police officers . . . in order of seniority in rank of their unit." The evidence established that accommodating petitioner by allowing him to utilize vacation days would permit him to select his vacation days each year prior to more senior officers. See Trans World Airlines, 432 U.S. at 79 ("[A]n agreed-upon seniority system [does not] give way when necessary to accommodate religious observances."). Further, the evidence showed respondent could not permit, in a manner consistent with the requirements of the CNA, petitioner's use of vacation days for his observance of the Sabbath and the other religious events for which he sought to be absent from duty. Stewart's testimony the FOP would not "make an issue" of the violation of the CNA that would result if respondent accommodated petitioner simply confirms respondent's position it could not accommodate petitioner without violating the CNA's seniority and vacation provisions. Moreover, Stewart's testimony did not modify the CNA and is not contractually binding. Because allowing petitioner to utilize vacation days to accommodate his religious beliefs conflicted with the seniority system and vacation-day provisions in the "bona fide" CNA, respondent could not grant this accommodation absent "undue hardship." Tisby, 448 N.J. Super. at 248 (quoting N.J.S.A. 10:5-12(q)(3)(a)); see also Trans World Airlines, 432 U.S. at 79.
A-1405-19 30 any request for an accommodation. As noted, the form explained that Newark
police officers must be available to work all shifts on each day of the year to
provide police services to the city. 15 Thus, Byrd's and Jorge's testimony
addressed the "predictable consequences" of granting petitioner's requested
accommodation, which the Commission could properly consider and "rely[] on"
to determine respondent could not grant the accommodation without undue
hardship. Miller, 351 F. Supp. 3d at 789 (quoting Firestone Fibers, 515 F.3d at
317).
In Geo Group, the Equal Employment Opportunity Commission (EEOC)
filed a complaint alleging religious discrimination on behalf of female Muslim
employees against the defendant employer—the operator of a corrections
facility—due to the defendant's alleged "fail[ure] to accommodate the
[employees] by providing them an exception to the prison's dress policy that
otherwise precluded them from wearing Muslim head coverings called khimars
at work." 616 F.3d at 267. The defendant argued, based on the testimony of the
facility's warden and deputy warden, that allowing employees to wear khimars
15 Respondent does not argue petitioner's unavailability to work all shifts, at all times, on each day of the year constitutes an undue hardship because it "result[s] in the inability of [petitioner] to perform the essential functions of the position in which he . . . is employed." N.J.S.A. 10:5-12(q)(3)(c). We therefore do not address the issue. A-1405-19 31 at the facility would present safety concerns because the khimars could
potentially be used as a weapon to "strangle" someone or to smuggle
"contraband." Id. at 270, 273-75. Although the defendant offered no direct
evidence of khimars being used this way in the past, the Third Circuit relied on
the wardens' testimony about the potential safety threats posed by the possible
uses of khimars and found that "[e]ven [if] khimars present only a small threat
of the asserted dangers, they do present a threat which is something . . . [the
defendant] is entitled to attempt to prevent." Id. at 274. The court concluded
the defendant satisfied its burden to establish that granting the accommodation
would raise safety concerns and impose an undue hardship. Id. at 274-75.
Because the EEOC did not establish the defendant's assertion of an undue
hardship was pretextual, the court affirmed the trial court's grant of summary
judgment to the defendant.16 Id. at 275, 277.
In Tisby, we considered a similar claim against a defendant corrections
facility by a Muslim employee alleging the defendant failed to accommodate her
by not allowing her to wear a khimar in violation of the defendant's dress policy.
16 The majority in Geo Group did not expressly address the issue of pretext, but, pursuant to the McDonnell Douglas standard, a finding of pretext would have sustained the EEOC's burden and precluded the court's affirmance of summary judgment to the defendant. 411 U.S. at 804. A-1405-19 32 448 N.J. Super. at 244-46. The defendant moved for summary judgment "and
provided a certification from the [w]arden" asserting in part that the defendant's
"uniform policy ensured 'the safe and orderly operation of [its] facilit[y],'" and
"any accommodation to [the] plaintiff would impose an undue hardship on [the]
defendant[]." Id. at 246. We endorsed the Third Circuit's finding in Geo Group,
and agreed, "[a]fter weighing the safety concerns, including the safety risk and
the ability to hide contraband in head coverings, as well as the necessity of
uniform neutrality," that the "defendant[] met [its] burden of establishing [the]
accommodation was a hardship." Id. at 250. Because the plaintiff did not prove
"the [defendant]'s reasons for denying an accommodation were . . . pretextual,"
we concluded the "plaintiff failed to overcome the finding of a hardship to [the]
defendant[]," and that therefore the grant of summary judgment to the defendant
"was proper[]." Ibid.
The circumstances presented by petitioner's request for an accommodation
are similar to those in Tisby and Geo Group. Here, the ALJ accepted as credible
the testimony of two veteran Newark police officers with knowledge and
experience concerning the department's operations and requirements, who
testified the department's workforce has been "decimat[ed]" in recent years by
"attrition," "retirement[,] and disability"; it is still "losing officers faster than
A-1405-19 33 [it] can . . . hire"; it does not "have extra officers available" to cover vacant
shifts without requiring overtime; and granting petitioner's accommodation
would exacerbate the department's "staffing shortages," posing a "safety"
concern "for the public [and] . . . the officers" and compromising respondent's
operational efficiency. Based on that testimony, the ALJ found respondent
established it was "unable to accommodate [petitioner] based upon his religious
beliefs and for the safety of its officers." The Commission agreed.
In accord with Tisby and Geo Group, we agree the testimony of Byrd and
Jorge concerning the department's safety and operational concerns, and the
manner in which accommodating petitioner's religious beliefs will violate the
CNA, satisfies respondent's "burden of establishing [the] accommodation was a
hardship." Tisby, 448 N.J. Super. at 250; see also Geo Grp., 616 F.3d at 274-
75. Therefore, contrary to petitioner's assertion, there is substantial credible
evidence supporting the Commission's finding that respondent made a bona fide
effort to accommodate petitioner's religious beliefs and respondent
demonstrated that providing an accommodation would constitute an undue
hardship under N.J.S.A. 10:5-12(q)(3)(a). Respondent clearly satisfied its
burden under the second prong of the McDonnell Douglas paradigm. See Tisby,
448 N.J. Super. at 248-49.
A-1405-19 34 The burden then shifted to petitioner to establish respondent's assertion of
an undue hardship was pretextual "and not the true reason for the employment
decision." Id. at 249 (quoting Zive, 182 N.J. at 449). Petitioner does not point
to any evidence establishing "discrimination was more likely than not [the]
motivating . . . cause" of respondent's action or discrediting respondent's
"legitimate, non[-]discriminatory reason" for its action—its inability to provide
the accommodation without undue hardship after making a bona fide effort to
provide the accommodation. See id. at 248-49 (quoting Zive, 182 N.J. at 449);
see also N.J.S.A. 10:5-12(q)(3)(a). In fact, petitioner does not argue on appeal
the Commission erred by concluding he failed to present evidence establishing
pretext under the third prong of the McDonnell Douglas standard. See Tisby,
448 N.J. Super. at 249. Our independent review of the record confirms petitioner
failed to sustain that burden.
Petitioner fails to demonstrate the Commission's decision is inconsistent
with applicable law, unsupported by substantial credible evidence, or based on
a misapplication of legislative policies to the facts. See Blanchard, 461 N.J.
Super. at 238 (quoting Carter, 191 N.J. at 482). As we have explained,
petitioner's appeal is founded on a claim the Commission erred by failing to find
his termination constituted unlawful discrimination based on his religious
A-1405-19 35 beliefs and respondent's refusal to provide an accommodation for those beliefs.
We find no merit to petitioner's contention because, as noted, respondent
presented sufficient credible evidence establishing it made a bona fide attempt
to accommodate petitioner and it would suffer an undue hardship by doing so.
Petitioner failed to demonstrate respondent's reasons for its termination of his
employment were a pretext for discrimination and, for that reason, petitioner's
religious discrimination claim fails. See Tisby, 448 N.J. Super. at 250; see also
N.J.S.A. 10:5-12(q)(3)(a). We therefore discern no basis to reverse the
Commission's decision upholding respondent's termination of petitioner's
conditional employment for the cited disciplinary reasons.
To the extent we have not expressly addressed any of petitioner's
remaining arguments, we find they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1405-19 36