                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0326-15T3
                                              A-0344-15T3


LINDA TISBY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                January 18, 2017

v.                                      APPELLATE DIVISION

CAMDEN COUNTY CORRECTIONAL
FACILITY,

     Defendant-Respondent.
______________________________

LINDA TISBY,

     Plaintiff-Appellant,

v.

CAMDEN COUNTY, CAMDEN COUNTY
DEPARTMENT OF CORRECTIONS and
CAMDEN COUNTY CORRECTIONAL
FACILITY,

     Defendants-Respondents.
______________________________

         Submitted November 17, 2016 – Decided January 18, 2017

         Before Judges Lihotz, O'Connor and Whipple.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket Nos. L-
         2530-15 and L-2233-15.

         Costello & Mains, L.L.C., attorneys for
         appellant (Deborah L. Mains, on the brief).
             Christopher A. Orlando, Camden County Counsel,
             attorney for respondents (Howard L. Goldberg,
             First Assistant County Counsel, on the brief).

      The opinion of the court was delivered by

WHIPPLE, J.A.D.

      Plaintiff,     Linda   Tisby,    appeals          from   an   August    7,   2015

order dismissing the first of her two complaints with prejudice,

and   from    an    August   21,   2015         order     dismissing    her     second

complaint    with    prejudice.       We       granted    plaintiff's      motion    to

consolidate these appeals on January 13, 2016.                      We affirm both

orders.

      Plaintiff     began    working       as    a      corrections    officer      for

defendant, Camden County Correctional Facility (CCCF), in 2002.

In 2015, plaintiff reverted to the Sunni Muslim faith.1                        On May

1, 2015, plaintiff reported to work wearing, for the first time,

a   traditional     Muslim   khimar,   a        tight    fitting    head     covering,

without a veil.2      Plaintiff's supervisor informed her she was not

in compliance with the uniform policy and could not work unless




1
    In the Sunni faith, a person who comes to the Sunni religion
from another religion is said to revert, as opposed to convert.
2
    Throughout the pleadings, plaintiff refers to the head
covering she wears as either a khimar or hijab. We will use the
term plaintiff adopted in her brief and refer to the head
covering as a khimar.



                                           2                                  A-0326-15T3
she removed the khimar.3         Plaintiff refused to remove her khimar,

so she was sent home and disciplinary charges were recommended.

       Plaintiff refused to remove her khimar again on May 2, May

3, and May 6, 2015.        Plaintiff continued refusing to remove her

khimar, stating the khimar was for religious purposes.                   Each day

plaintiff refused, she was sent home and disciplinary action was

implemented.       As a result of the May 6, 2015 events, plaintiff

received a two-day suspension.

       In a May 11, 2015 memorandum, the Warden of CCCF advised

plaintiff     he   considered    her   "position      as   a   request    for    an

accommodation under Title VII of the Civil Rights Act, as well

as New Jersey's Law Against Discrimination (LAD)," even though

she    had   not   formally   submitted    such   a   request.      The    Warden

recognized plaintiff's religious beliefs were sincerely held but

rejected her accommodation request because it would "constitute

an undue hardship to the Department to allow an officer to wear

head-coverings      or   other   non-uniform      clothing."      He     informed


3
      Defendant's Uniform Grooming Standards provide the following:

             G.   Hats:   Only  authorized  headgear   as
             prescribed    by   prevailing   departmental
             specifications will be worn.   The hat will
             be worn well balanced on the head, front,
             back and side. The hat will not be crushed
             down or altered in any way.    Hats will be
             worn at all times except when indoors or in
             a vehicle.



                                       3                                  A-0326-15T3
plaintiff no disciplinary action would be taken against her if

she   came    to     work      in   only   the       permitted    uniform.        Plaintiff

declined and continued to wear her khimar.                        She was removed from

her position on May 11, 2015.

      Following her removal, plaintiff filed two lawsuits.                                 We

address each in turn.               The first complaint (Tisby I) was filed

on    June     12,       2015,      against      Camden        County,     Camden    County

Department      of       Corrections,         and      CCCF,     seeking     damages      and

equitable relief for defendants' violations of the LAD, N.J.S.A.

10:5-1   to    -49,       by    failing     to       "accommodate   sincere       religious

beliefs."          The    complaint        alleged      defendants       permitted     other

women,       including         Muslim      women        and     women     going     through

chemotherapy, to wear head coverings at CCCF.

      On July 2, 2015, plaintiff filed a verified complaint in

lieu of prerogative writ seeking immediate reinstatement of her

employment and back pay (Tisby II).                      Tisby II asserted plaintiff

had been "wrongfully suspended without pay" due to her religious

beliefs, in violation of N.J.S.A. 11A:2-13, and defendants had

failed to reasonably accommodate her religious beliefs pursuant

to the LAD.          This complaint did not include any claims other

women were permitted to wear head coverings while employed by

CCCF.




                                                 4                                  A-0326-15T3
      Defendants moved to dismiss both complaints and provided a

certification from the Warden.            The Warden certified the Uniform

Grooming Standards had been in place for over twenty years and

neither religious nor secular head coverings were allowed.                              He

further   certified      the    uniform       policy    ensured    "the        safe   and

orderly operation of correctional facilities," as well as "the

very important public value of presenting a unified, neutral and

unbiased force to the public and to the inmates the department

is charged with protecting."              He stressed any accommodation to

plaintiff would impose an undue hardship on defendants.

      On August 7, 2015, after considering the arguments of both

parties, a trial judge dismissed Tisby II.                  The judge recognized

plaintiff     had    a   sincere   religious           belief   and      the     uniform

requirement conflicted with her religious belief.                        However, the

judge determined accommodating plaintiff's request would impose

an undue hardship on CCCF because of overriding safety concerns,

the potential for concealment of contraband, and the importance

of uniform neutrality.          The order dismissed the complaint "with

prejudice,     in    accordance     with       Rule     4:6-2(e),        or,    in     the

alternative,      that   summary   judgment        be    granted    to    [CCCF],      in

accordance with Rule 4:46, dismissing the complaint."                          On August

21,   2015,   a     different    trial     judge       dismissed      Tisby      I    with




                                          5                                     A-0326-15T3
prejudice,    citing        the    entire        controversy     doctrine.             These

appeals followed.



                                            I.

     We turn our attention to Tisby II because it was decided

first.      Plaintiff argues dismissal of Tisby II was in error

because plaintiff's complaint stated a claim upon which relief

could be granted.           Alternatively, plaintiff contends dismissal

was in error because discovery had not yet been completed.                                  We

disagree.

     When challenging a complaint for failure to state a claim,

R.   4:6-2(e),       "the     plaintiff          is     entitled        to     a    liberal

interpretation of its contents and to the benefits of all its

allegations    and    the     most    favorable         inferences       which      may    be

reasonably drawn from them."                    Burg v. State, 147 N.J. Super.

316, 319-20 (App. Div. 1977) (quoting Rappaport v. Nichols, 31

N.J. 188, 193 (1959)).             Rule 4:6-2 provides if "matters outside

the pleadings are presented to and not excluded by the court,

the motion [for dismissal] shall be treated as one for summary

judgment     and     disposed        of     as        provided     by        Rule    4:46."

Additionally, "[a] motion for summary judgment is not premature

merely     because    discovery           has     not    been    completed,          unless

plaintiff     is     able     to     'demonstrate         with     some        degree      of




                                            6                                       A-0326-15T3
particularity the likelihood that further discovery will supply

the missing elements of the cause of action.'"                                Badiali v. N.J.

Mfrs. Ins. Group., 220 N.J. 544, 555 (2015) (quoting Wellington

v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.)

certif. denied, 177 N.J. 492 (2003)).

        The        trial     judge     did    not       explicitly         specify         he    was

converting          the     motion    to   dismiss          into    a    motion      for   summary

judgment.          However, in evaluating her complaint, the trial judge

relied    on        records     outside      of       the     pleadings,       including,        the

Warden's            certification,           defendant's             Grooming          Standards,

plaintiff's          responsive        certification,              and    a    photograph         of

plaintiff wearing a head covering.                          We discern no error in the

judge's approach.

        The core of plaintiff's complaint is a violation of her

religious rights.              Under the LAD, employers cannot impose any

condition upon employees that "would require a person to violate

.   .     .        sincerely      held       religious          practice        or     religious

observance."               N.J.S.A.    10:5-12(q)(1).               However,      an   exception

exists        if     an     employer       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.        An "undue hardship" is

defined as "an accommodation requiring unreasonable expense or




                                                  7                                        A-0326-15T3
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).

    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, 93 S. Ct. 1817, 36 L. Ed.

2d 668 (1973)."            Zive v. Stanley Roberts, Inc., 182 N.J. 436,

447 (2005).         The plaintiff must first demonstrate a prima facie

case of employment discrimination.                    Victor v. State, 203 N.J.

383, 408 (2010).            In a religious discrimination case, a prima

facie   case       includes       a   showing    "(1)       plaintiff     belongs       to    a

protected class; (2) she was performing her job at a level that

met her employer's legitimate expectations; (3) she suffered an

adverse     employment        action;      and    (4)       others   not       within    the

protected      class       did     not   suffer      similar     adverse        employment

actions."      El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.

145, 167 (App. Div. 2005).

    Once       a    plaintiff         establishes       a    prima   facie       case,       an

"inference of discrimination" is created.                      Zive, supra, 182 N.J.

at 449.     The employer can combat the inference of discrimination

by articulating a "legitimate, nondiscriminatory reason for the

employer's action."              Ibid.   If the employer can meet its burden,




                                            8                                     A-0326-15T3
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."                    Ibid.     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.

El-Sioufi, supra, 382 N.J. Super. at 173.                 Defendant is entitled

to summary judgment if plaintiff is unsuccessful in this last

step.   Zive, supra, 182 N.J. at 456.

      It is undisputed plaintiff satisfied her prima facie claim

of discrimination.        However, the trial court found defendants'

concerns for the safety, security and neutrality of CCCF, were

legitimate non-discriminatory reasons why allowing plaintiff an

accommodation    would    cause      an   undue     hardship    on     defendants.

Relying upon Kelly v. Johnson, 425 U.S. 238 (1975), the trial

judge   also   reasoned       defendants'     choice      of   uniform    for    its

personnel was entitled to a presumption of validity which had

not been overcome by plaintiff.

      Our courts have not previously addressed this issue, but

other   courts   have.         "In   a    variety    of     contexts     involving

allegations of unlawful discrimination, [the] Court has looked

to   federal   law   as   a   key    source   of    interpretive       authority."




                                          9                               A-0326-15T3
Grigoletti v. Ortho Pharm, Corp. 118 N.J. 89, 97 (1990).                                      In

EEOC   v.      Geo     Group,     Inc.,       the    Equal     Employment        Opportunity

Commission       (EEOC)     brought       a   religious       discrimination          case    on

behalf    of     Muslim     women   employees         against     a   private         employer

running      a    corrections       facility          for    refusing       to    allow       an

exception to the prison's dress policy, which precluded them

from wearing Muslim head coverings.                     616 F.3d 265, 267 (3d Cir.

2010).       Weighing       the    religious         beliefs    of    the    Muslim      women

against the employer's safety concerns the court agreed khimars,

as well as other headgear, would present safety concerns in a

prison setting because they could be used as a weapon to choke

someone.         Id. at 274-75.           In Webb v. City of Philadelphia, a

Philadelphia           police   officer        requested       permission        to    wear    a

headscarf while on duty, and the request was denied.                                  562 F.3d

256,   258       (3d    Cir.    2009).         The    city     prevailed      arguing        any

accommodation would be an undue hardship because the "perception

of its impartiality" of an officer was at stake.                        Id.       at 261.

       We do not minimize the religious significance of the khimar

for the women who wear them.                  We recognize a compelling sense of

religious obligation in the decision to wear a khimar.                                       Ali

Anmoura,       Note,     Banning    the       Hijab    in    Prisons:       Violations        of

Incarcerated Muslim Women's Right to Free Exercise of Religion,

88 Chi.-Kent L. Rev. 657, 660 (2013).                        However, the trial judge




                                               10                                     A-0326-15T3
drew appropriate guidance from the logic of GEO and Webb, as

well     as     the     evidence        presented,           when      determining        an

accommodation        would    impose     a   hardship        on   defendants.          After

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,           the   trial     judge    determined

defendants met their burden of establishing accommodation was a

hardship.         Moreover,     the     employer's          reasons    for    denying     an

accommodation were not pretextual.                     Therefore, plaintiff failed

to     overcome       the    finding        of    a     hardship       to     defendants.4

Consequently, summary judgment was properly entered.

                                                 II.

       Tisby    I     was    decided     subsequently.              The     second     judge

acknowledged        plaintiff's       factual         assertion     other     women     were

permitted to wear head coverings in CCCF, but the judge entered

dismissal       based        upon     the        entire      controversy         doctrine.

Generally,     the     entire       controversy        doctrine,      codified    in    Rule

4:30A, "embodies the principle that the adjudication of a legal


4
     Plaintiff claims further discovery was necessary to
investigate "[p]ast allowances of employees to wear head
coverings in defendants' facility," but plaintiff never provided
information of any specific instances of employees who were
allowed to wear head coverings. Thus, plaintiff did not satisfy
the Badiali, supra, 220 N.J. at 555, criteria to show how
discovery was necessary to prove an element of her claim.
Therefore, the judge properly rejected this assertion.



                                             11                                   A-0326-15T3
controversy should occur in one litigation in only one court;

accordingly, all parties involved in a litigation should at the

very least present in that proceeding all of their claims and

defenses    that     are   related      to   the    underlying        controversy."

Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (quoting

Highland Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J.

123, 125 (2009)).

      The    judge    found    Tisby     I   was     barred      by     the    entire

controversy doctrine because plaintiff should have raised all of

her   claims,    including     the   allegation          that   other    women      had

previously been allowed to wear head coverings, in one action.

We agree.     A review of the two complaints showed only slightly

different    allegations      arising    from      the   same   events    and     CCCF

should not have to defend against plaintiff's complaint more

than once.      Therefore, because we affirm the decision in Tisby

II, we also find Tisby I was properly dismissed based on the

entire controversy doctrine.

      Affirmed.




                                        12                                    A-0326-15T3
