NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2493-21
MARVEN ROSEUS,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY and STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS,
Defendants-Respondents. ___________________________
Argued January 16, 2024 – Decided March 20, 2024
Before Judges Gilson, DeAlmeida, and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2341-18.
Deborah Lynn Mains argued the cause for appellant (Costello & Mains, LLC, attorneys; Deborah Lynn Mains, on the brief).
James M. Duttera, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel and on the brief; Azeem M. Chaudry, Deputy Attorney General, on the brief).
PER CURIAM
Plaintiff Marven Roseus is a member of the religious organization Israel
United in Christ. Under the tenets of his faith, he does not shave the hair on his
head or face. He applied for employment with the Department of Corrections
(the DOC) and requested an accommodation so he could attend the DOC's
training academy without completely shaving his facial hair. The DOC denied
the accommodation, later claiming that its grooming policy was necessary to
maintain esprit de corps during the training of corrections officers.
Plaintiff appeals from an order granting summary judgment to the DOC
and dismissing his claims of failure to accommodate and retaliation in violation
of the Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -50. We
reverse the portion of the order dismissing the failure to accommodate claim
because there are genuine issues of material fact concerning whether the DOC
could have accommodated plaintiff's request. We affirm the portion of the order
dismissing plaintiff's retaliation and punitive damages claims. Accordingly, we
reverse in part, affirm in part, and remand for a trial on plaintiff's remaining
claim.
I.
A-2493-21 2 Plaintiff describes himself as a person of the Jewish faith, and he has been
a member of the religious organization Israel United in Christ since 2013. In
accordance with the dictates of his religion, plaintiff does not shave the hair on
his face or head. Nevertheless, there are circumstances when plaintiff's religion
will permit an adherent to shave if, for example, shaving is needed to preserve
someone's health or safety.
In July 2015, plaintiff took a civil service exam to become a State
corrections officer. Several months later, the DOC sent plaintiff an employment
application and instructed him to report to a training facility on December 1,
2015. Subsequently, plaintiff went to the DOC training facility, completed an
employment application, and signed a document setting forth the expectations
for trainees while they attended the training academy.
Persons interested in becoming DOC officers must attend a training
program at the Correctional Staff Training Academy (the CST Academy) for
approximately fourteen weeks. While attending the CST Academy, trainees are
referred to as "apprentices," and they are required to acknowledge and agree to
abide by the CST Academy Expectations. Those Expectations state that
apprentices will be subject to "[s]trict [p]ara-military discipline" and that the
CST Academy's rules and regulations will be strictly enforced. Among other
A-2493-21 3 requirements, the CST Academy Expectations require apprentices to abide by
grooming standards. In that regard, the CST Academy Expectations state, in
relevant part: "Male [apprentices] will be required to keep a shaved head and
be clean[-]shaven at all times. Female [apprentices] will be required to keep
hair off of their collar and ears."
Seven months after completing the application, in July 2016, plaintiff
attended two orientation meetings. According to plaintiff, at the first meeting,
he was told that any request for a religious accommodation must be signed by a
religious elder or church leader and submitted in writing on a document bearing
the church's letterhead. At the second orientation meeting, plaintiff submitted a
letter from an elder of his church requesting a religious accommodation to be
exempt from the shaving requirement.
Following the orientation meetings, plaintiff contacted the Custody
Recruitment Unit of the DOC's Office of Human Resources (the DOC HR) to
ask about the status of his request for a religious accommodation. Between July
21, 2016 and July 22, 2016, a manager in the DOC HR sent an email concerning
plaintiff's request to Guy Cirillo, the then-Director of the CST Academy, which
was then forwarded to Major Wayne Manstream, who oversaw the CST
Academy. Cirillo was then informed that the then-Director of Legal and
A-2493-21 4 Regulatory Affairs had concluded there was legal precedent for the DOC to
enforce its grooming policy. No one from the DOC contacted plaintiff about his
request for a religious accommodation before he arrived for the first day of
training.
On July 25, 2016, plaintiff reported to the CST Academy for training. In
preparation for his first day, plaintiff had hired a barber to trim his beard down
to less than one-eighth of an inch. The barber had similarly trimmed the hair on
plaintiff's head.
On the first day of training, plaintiff was informed that he was not properly
shaven. Thereafter, he had a series of discussions with Cirillo and Manstream.
During those discussions, plaintiff presented a letter from Nathanyel Ben Israel,
an elder of plaintiff's church, requesting a religious accommodation to allo w
plaintiff not to shave his facial hair. Plaintiff also informed Manstream that he
needed the accommodation for medical reasons and presented a note from his
dermatologist, which explained that plaintiff suffered from pseudofolliculitis
barbae, which would be aggravated if plaintiff shaved with a razor.
Ultimately, plaintiff was informed that he must shave, or he would be
dismissed from the CST Academy. When plaintiff refused to shave, he was
dismissed.
A-2493-21 5 Three days later, plaintiff filed a complaint with the DOC's Equal
Employment Division (EED), alleging that he had been subjected to religious
discrimination. Following an investigation, in February 2017, the DOC
informed plaintiff that "the EED did not substantiate a violation of the [p]olicy
[p]rohibiting [d]iscrimination in the [w]orkplace."
Meanwhile, on January 9, 2017, plaintiff filed a five-count complaint
against the DOC and the State of New Jersey. Plaintiff alleged that defendants
had violated the LAD in dismissing him from the CST Academy, and he asserted
causes of action for discriminatory failure to hire, discriminatory discharge,
failure to accommodate, and discrimination in a place of public accommodation.
Plaintiff also sought equitable relief.
Defendants moved to dismiss plaintiff's complaint. Plaintiff opposed that
motion and moved to amend his complaint. On June 30, 2017, the trial court
entered an order and written opinion denying plaintiff's motion to amend his
complaint and granting defendants' motion to dismiss plaintiff's complaint with
prejudice. Plaintiff appealed from those orders, and we reversed. See Roseus
v. State, No. A-5086-16 (App. Div. Sept. 10, 2018). We remanded the matter
to the trial court so that, among other things, a record could be developed
regarding whether the DOC engaged in a "bona fide effort" to accommodate
A-2493-21 6 plaintiff's religious beliefs or whether the DOC was "unable to reasonably
accommodate" plaintiff without undue hardship. Id. at 2, 13-14.
While that appeal was pending, in March 2017, plaintiff took another civil
service exam for non-correction officer entry-level law enforcement positions.
Later that year, in October 2018, the DOC contacted plaintiff and invited him to
apply for employment with the DOC as a State correctional police officer.
Plaintiff was then directed to report to a training center in December 2018, where
he completed an application. After investigating plaintiff's 2018 application,
the DOC determined that plaintiff had made misrepresentations because he had
not disclosed that he had previously attended and been dismissed from the CST
Academy. Accordingly, on July 12, 2019, plaintiff was notified that his name
was removed from the eligible list.
Plaintiff appealed that determination, but in January 2020, the Division of
Appeals and Regulatory Affairs of the Civil Service Commission (the Division)
rejected plaintiff's appeal. The Division found that plaintiff had failed to provide
any substantive information to refute the DOC's position that he had falsified
his employment application. The Division also found that information related
to plaintiff's prior removal from the CST Academy was material and should have
been disclosed on the application.
A-2493-21 7 In February 2020, plaintiff amended his complaint in this action to include
an additional claim of retaliation under the LAD. The parties, thereafter,
conducted and completed discovery.
In January 2022, defendants moved for summary judgment. In support of
that motion, defendants argued: (1) the DOC's grooming policy required all
apprentices to shave, and it did not violate the LAD because section 12(p) of the
LAD expressly permitted employers to impose reasonable grooming standards
on employees; (2) plaintiff failed to demonstrate that the DOC's policy was
applied in a discriminatory manner or with discriminatory intent; and (3) the
DOC demonstrated a bona fide effort to accommodate plaintiff's request for a
religious accommodation and that the request would cause it undue hardship.
Defendants relied on Cirillo's and Manstream's deposition testimonies and
a certification from Manstream. Cirillo explained that the grooming policy was
in place because there was "really no place for individuality" at the CST
Academy. He maintained that by minimizing "individuality[,] everyone starts
at the same foundation." Manstream described the concept of "esprit de corps,"
which facilitates the goal of creating unit cohesion and trust and strips away any
individual differences among the apprentices. In that regard, Manstream stated
A-2493-21 8 the "main goal" at the CST Academy was to mold apprentices "who come from
many different backgrounds . . . into unified members of a cohesive team."
The DOC maintained that apprentices were required to shave, and there
were no exceptions. The DOC acknowledged, however, that it had previously
granted a religious accommodation to an apprentice, and the DOC also
acknowledged that once apprentices graduated from the CST Academy,
corrections officers were allowed to grow facial hair up to one-quarter of an inch
in length. The DOC also asserted that apprentices needed to be clean-shaven to
be fitted with masks that they would wear at correctional facilities if there was
a fire.
On April 14, 2022, the trial court heard argument on defendants' motion.
Five days later, on April 19, 2022, the trial court issued an order granting
defendants' motion and dismissing plaintiff's amended complaint with prejudice.
The court explained the reasons for its decision on the record.
Initially, the trial court found plaintiff failed to establish a prima facie
claim of religious discrimination. In that regard, the court reasoned that plaintiff
failed to demonstrate that he met his employer's legitimate expectations and that
others outside his protected class were treated differently. The court pointed out
A-2493-21 9 that plaintiff had twice signed the CST Academy Expectations and, therefore,
he knew he had to comply with the grooming policy.
In addition, the court reasoned that even if plaintiff had made a prima facie
showing, defendants articulated a legitimate, non-discriminatory reason for the
grooming policy, including the requirement that apprentices be clean-shaven.
The court held that the grooming policy was facially neutral and generally
applicable. The court also accepted defendants' position that there was no room
for individuality at the CST Academy and that the grooming policy furthered
the CST Academy's goal of creating an esprit de corps. Accordingly, the trial
court held that plaintiff could not prove that his religion was a basis for the
decision to discharge him.
The court also rejected plaintiff's failure to accommodate claim. The court
held that defendants had demonstrated a bona fide effort to accommodate
plaintiff and that any accommodation of plaintiff would cause undue hardship
to the DOC. In support of its rulings, the trial court reasoned that section 12(p)
of the LAD supported summary judgment on plaintiff's claim of a failure to
accommodate. The court held that the section expressly permitted employers to
impose reasonable grooming policies and superseded the LAD's "general
requirements to provide . . . reasonable religious accommodations."
A-2493-21 10 The court also found that defendants were entitled to summary judgment
on plaintiff's claim of retaliation because plaintiff failed to show a retaliatory
motive. The court found that there was no material dispute that plaintiff's 2018
application was denied because the DOC determined that he had concealed his
prior attendance at and dismissal from the CST Academy in 2016 and, therefore,
plaintiff's application was false.
Plaintiff now appeals from the April 19, 2022 order dismissing his
complaint with prejudice.
II.
On appeal, plaintiff argues that the trial court erred in granting summary
judgment to defendants and dismissing all his LAD claims. He contends that he
presented prima facie LAD claims of (1) a failure to accommodate his religious
beliefs that resulted in discrimination; and (2) retaliation. He also argues that it
was premature to dismiss his punitive damages claim.1
We review a grant or denial of summary judgment de novo, "applying the
same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78
1 In his brief on appeal, plaintiff elected not to address his claim that defendants violated the public accommodation provision of the LAD. Thus, we deem that claim to be abandoned. See State v. Shangzhen Huang, 461 N.J. Super. 119, 125 (App. Div. 2018), aff'd o.b., 240 N.J. 56, 56 (2019); Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-2493-21 11 (2022). That standard requires us to "determine whether 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)
(quoting R. 4:46-2(c)). "Summary judgment should be granted . . . 'against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the
burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). We do not defer
to the trial court's legal analysis or statutory interpretation. See RSI Bank v.
Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC,
218 N.J. 202, 209 (2014).
Having reviewed the record and law, we hold that plaintiff presented a
prima facie claim of a failure to accommodate his religious beliefs. We,
therefore, reverse that portion of the summary judgment order and remand that
claim to be assessed at a jury trial. We also hold that plaintiff failed to present
a prima facie claim of retaliation under the LAD or a right to punitive damages
A-2493-21 12 under the LAD. Thus, we affirm the portion of the summary judgment order
that dismissed those claims with prejudice.
A. The LAD and Its Requirement for Reasonable Accommodation.
"The 'overarching goal of the [LAD] is nothing less than the eradication
"of the cancer of discrimination."'" Zive v. Stanley Roberts, Inc., 182 N.J. 436,
446 (2005) (alteration in original) (quoting Fuchilla v. Layman, 109 N.J. 319,
334 (1988)). In that regard, "the LAD 'unequivocally expresses a legislative
intent to prohibit discrimination in all aspects of the employment relationship,
including hiring and firing, compensation, the terms and conditions of
employment, and retirement.'" Alexander v. Seton Hall Univ., 204 N.J. 219,
227-28 (2010) (quoting Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 106-07
(2010)). "Because of its remedial purpose, the LAD should be construed
liberally to achieve its aims." Zive, 182 N.J. at 446.
The LAD prohibits employers from "discharg[ing]" or "refus[ing] to hire
or employ" a person because of that person's "creed." N.J.S.A. 10:5-12(a). The
LAD also prohibits employers from imposing a condition on employees that
"would require a person to violate or forego a sincerely held religious practice
or observance" unless, "after engaging in a bona fide effort, the employer
demonstrates that it is unable to reasonably accommodate the employee's
A-2493-21 13 religious observance or practice without undue hardship on the conduct of the
employer's business." N.J.S.A. 10:5-12(q)(1).
In that regard, the LAD states that it is an unlawful employment practice:
For any employer to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance . . . unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's religious observance or practice without undue hardship on the conduct of the employer's business.
[Ibid.]
An "undue hardship" is defined as "an accommodation requiring
unreasonable expense or difficulty, unreasonable interference with the safe or
efficient operation of the workplace or a violation of a bona fide seniority system
or a violation of any provision of a bona fide collective bargaining agreement."
N.J.S.A. 10:5-12(q)(3)(a). The LAD goes on to identify factors that should be
considered in determining whether the accommodation constitutes an undue
hardship. N.J.S.A. 10:5-12(q)(3)(b)(i) to (iii). Those factors include the cost of
the accommodation, the number of individuals who will need the
accommodation, and the degree to which providing the accommodation would
A-2493-21 14 affect an employer with multiple facilities. Ibid. The LAD also states that an
"accommodation shall be considered to constitute an undue hardship if it will
result in the inability of an employee to perform the essential functions of the
position in which he or she is employed." N.J.S.A. 10:5-12(q)(3)(c).
"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).'" Tisby v. Camden Cnty. Corr. Facility,
448 N.J. Super. 241, 248 (App. Div. 2017) (citation reformatted) (quoting Zive,
182 N.J. at 447). Under that methodology, a plaintiff must first demonstrate a
prima facie claim of employment discrimination for a failure to accommodate.
Victor v. State, 203 N.J. 383, 408 (2010). If a plaintiff establishes a prima facie
case, an "inference of discrimination" is created. Zive, 182 N.J. at 449. The
burden then shifts to the employer to "combat the inference of discrimination by
articulating a 'legitimate, non[-]discriminatory reason for the employer's
action.'" Tisby, 448 N.J. Super. at 248-49 (quoting Zive, 182 N.J. at 449).
Where a plaintiff alleges a failure to accommodate a religious practice, the
employer must provide "legitimate[,] non-discriminatory reasons 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
A-2493-21 15 'bona fide effort' to accommodate." Id. at 249, 248 (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 plaintiff can discredit the
legitimate reason provided by the employer." Ibid. (quoting El-Sioufi v. St.
Peter's Univ. Hosp., 382 N.J. Super. 145, 173 (App. Div. 2005)).
Plaintiff's allegations focused on the DOC's failure to accommodate his
religious practice of not shaving his face or head. He does not allege, and the
evidence he has submitted does not support, a separate and independent claim
of religious discrimination apart from the failure to accommodate. In that
regard, plaintiff argues that his termination from the CST Academy "was
discriminatory because it resulted from an unlawful failure to accommodate his
sincerely held religious belief [or] was motivated by his religious practice."
Accordingly, we focus our analysis on whether plaintiff has established a prima
facie claim of a failure to reasonably accommodate his religious practice.
A-2493-21 16 Plaintiff has established that a tenet of his religion prohibits him from
shaving the hair on his face and head. During orientation for the CST Academy,
plaintiff was informed that he could apply for a religious accommodation.
Plaintiff then submitted a letter from an elder of his church asking for the
accommodation. Consequently, the DOC was aware of plaintiff's request for a
religious accommodation when plaintiff appeared for the first day of training.
The record reflects that the DOC internally discussed the request for an
accommodation but never communicated to plaintiff a denial before the first day
of training. The record also establishes that the only reason plaintiff was
dismissed from the CST Academy in 2016 was his failure to shave in accordance
with the grooming policy. While the DOC has contended that plaintiff co uld
have sought an exception from his church, on this summary judgment record,
we accept plaintiff's position because there is no definitive evidence that
plaintiff's church would have granted an exception.
There are material issues of disputed fact concerning whether the DOC
engaged in a bona fide effort to accommodate plaintiff and whether an
accommodation would have imposed an undue hardship on the DOC.
Addressing its efforts to accommodate plaintiff's religious practice, the DOC
has submitted documents demonstrating internal communications among
A-2493-21 17 employees of the DOC HR and CST Academy. Those communications indicate
that there was a belief by certain DOC employees that there was legal precedent
for not providing an accommodation. The prior case that the DOC relied on,
however, was a case where the DOC initially accommodated a candidate by
permitting him to grow a beard no longer than one-eighth of an inch and only
discharged the employee after he had violated the accommodation. See Valdes
v. State, No. 05-3510, 2007 WL 1657354 (D.N.J. June 6, 2007), aff'd, 313 F.
App'x 499 (3d Cir. Aug. 12, 2008).2
The communications submitted by the DOC do not establish a bona fide
effort. Instead, those communications raise material issues of disputed fact
concerning why there was not a greater effort to accommodate plaintiff's
request. In addition, there are material issues of disputed fact concerning why
plaintiff was not notified that his request was rejected before he appeared for his
first day of employment and training.
More critically, there are material issues of disputed fact as to whether
providing plaintiff a religious accommodation would have created an undue
hardship for the DOC. The DOC argues that its grooming policy is designed to
2 We cite to this unpublished case not as precedent but because the DOC relied on the case. A-2493-21 18 create an esprit de corps among the apprentices. While it has submitted
numerous certifications and deposition testimonies of DOC employees
concerning the policy, it has not explained why being clean-shaven creates such
a spirit. Plaintiff showed up to the first day of employment with a beard that
had been trimmed to less than one-eighth of an inch. A jury must decide whether
that amount of facial hair would so distinguish plaintiff that he could not
establish a cohesive bond with his fellow apprentices. In that regard, the DOC
has not identified any cost associated with accommodating plaintiff, nor has the
DOC identified whether there would be a large number of people who would
have to be similarly accommodated. More fundamentally, the DOC presented
no evidence that providing plaintiff a religious accommodation would result in
plaintiff failing to properly perform his training or become a qualified
corrections officer. In that regard, it is undisputed in the record that after
graduation from the CST Academy, corrections officers are allowed to have a
beard up to one-quarter of an inch in length.
The DOC also has not contended that being clean-shaven is a safety issue.
While it argues that apprentices must be clean-shaven to be fitted for smoke
masks, it has not explained how corrections officers with beards one-quarter of
an inch in length can use those smoke masks once they have been fitted.
A-2493-21 19 The DOC argues that its grooming policy is allowed under section 12(p)
of the LAD. That provision states:
Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee's gender identity or expression.
[N.J.S.A. 10:5-12(p).]
The trial court concluded that the DOC did not have to provide plaintiff
with a religious accommodation because section 12(p) of the LAD superseded
section 12(q). We reject that interpretation of the LAD for several reasons.
First, the plain language of sections 12(p) and 12(q) of the LAD is not in conflict.
Section 12(p) allows employers to have reasonable appearance, grooming, and
dress standards. Section 12(q), nevertheless, directs that grooming standards
are still subject to a reasonable accommodation for an employee's religious
practice, unless the employer can demonstrate that that accommodation would
impose an undue hardship. This plain meaning interpretation of the two
provisions of the LAD is consistent with the Legislature's intent to eliminate
discrimination in all aspects of employment.
A-2493-21 20 In summary, plaintiff established a prima facie showing of a failure to
accommodate his religious practice. There are material issues of disputed fact
concerning whether the DOC made a bona fide effort to accommodate plaintiff's
religious practice and whether the accommodation would have imposed an
undue hardship. Those issues must be determined by a jury at a trial. We,
therefore, vacate the portion of the summary judgment order that dismissed
plaintiff's failure to accommodate claim under the LAD and remand that claim
for trial by a jury.
B. Plaintiff's Claim of Retaliation Under the LAD.
The LAD prohibits employers from taking "reprisals against any person
because that person has opposed any practices or acts forbidden under [the
LAD]." N.J.S.A. 10:5-12(d); see also Dunkley v. S. Coraluzzo Petroleum
Transporters, 437 N.J. Super. 366, 375 (App. Div. 2014). To state a prima facie
case of retaliation, a "plaintiff must show that 1) [he or] she was engaged in a
protected activity known to [the] defendant; 2) [he or] she was thereafter
subjected to an adverse employment decision by the defendant; and 3) there was
a causal link between the two." Royster v. N.J. State Police, 439 N.J. Super.
554, 575 (App. Div. 2015) (first and third alterations in original) (quoting
Woods-Pirozzi v. Nabisco Foods, 209 N.J. Super. 252, 274 (App. Div. 1996)).
A-2493-21 21 Like in all LAD cases, if a plaintiff establishes a prima facie claim of retaliation,
the burden then shifts to the employer to "articulate a legitimate, non-retaliatory
reason for the decision." Young v. Hobart W. Grp., 385 N.J. Super. 448, 465
(App. Div. 2005) (quoting Romano v. Brown & Williamson Tobacco Corp., 284
N.J. Super. 543, 549 (App. Div. 1995)). "The plaintiff is then 'afforded a fair
opportunity' to show that the reason given [by the employer] 'is a pretext for the
retaliation or that a discriminatory reason more likely motivated the employer.'"
Royster, 439 N.J. Super. at 575-76 (quoting Jamison v. Rockaway Twp. Bd. of
Educ., 242 N.J. Super. 436, 445 (App. Div. 1990)).
Plaintiff claims that he was retaliated against when his employment
application was rejected in 2018. There is no evidence in the record
demonstrating a connection between the denial of plaintiff's 2018 application
and his earlier lawsuit against the DOC. Instead, the material undisputed facts
are that the application plaintiff completed in 2018 contained incomplete and
inaccurate answers. The evidence also establishes that the DOC rejected
plaintiff's 2018 application because plaintiff failed to include any information
about his prior application to the DOC and his dismissal from the CST Academy
in 2016. In short, plaintiff has not shown that he engaged in a protected activity
when he submitted an incomplete and inaccurate employment application in
A-2493-21 22 2018. He has also failed to present evidence that the DOC's decision to reject
the 2018 application as incomplete and inaccurate was done in retaliation.
Accordingly, we affirm the portion of the summary judgment order that
dismissed plaintiff's retaliation claim under the LAD.
C. Plaintiff's Punitive Damages Claim.
There are two essential prerequisites to an award of punitive damages
under the LAD: proof of "actual participation by upper management or willful
indifference," and proof that the conduct was "especially egregious." Quinlan
v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010) (quoting Rendine v. Pantzer,
141 N.J. 292, 313-14 (1995)). Conduct that is sufficiently egregious to warrant
a punitive damages award must be intentional wrongdoing "in the sense of an
'evil-minded act' or an act accompanied by a wanton and wilful disregard of the
rights of another." Rendine, 141 N.J. at 314 (quoting Nappe v. Anschelewitz,
Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984)).
Plaintiff has not presented sufficient evidence to demonstrate that the
DOC committed an evil-minded act against him. While there are material issues
of disputed fact concerning the DOC's bona fide effort to accommodate
plaintiff's religious beliefs and whether that accommodation would create an
undue hardship, there is no evidence of a willful indifference to plaintiff's
A-2493-21 23 request for an accommodation or that the DOC's conduct relating to plaintiff
was especially egregious. Therefore, we affirm the portion of the summary
judgment order dismissing plaintiff's punitive damages claim under the LAD.
That dismissal, moreover, was not premature because discovery had been
completed, and plaintiff had the obligation to submit proof to support his claim
for punitive damages. See Friedman, 242 N.J. at 472 (explaining that even if
discovery has not been completed, summary judgment is not premature if the
non-moving party cannot show that further discovery would supply the missing
elements of a cause of action).
Reversed in part, affirmed in part, and remanded. We do not retain
jurisdiction.
A-2493-21 24