                          NOT FOR PUBLICATION WITHOUT THE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-5086-16T4

MARVEN ROSEUS,

        Plaintiff-Appellant,

v.

STATE OF NEW JERSEY and
DEPARTMENT OF CORRECTIONS,

     Defendants-Respondents.
____________________________

                Submitted August 21, 2018 – Decided September 10, 2018

                Before Judges Sumners and Gilson.

                On appeal from Superior Court of New Jersey, Law
                Division, Union County, Docket No. L-0116-17.

                Costello & Mains, LLC, attorneys for appellant
                (Deborah L. Mains, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondents (Melissa H. Raksa, Assistant Attorney
                General, of counsel; Kimberly Ann Eaton, Deputy
                Attorney General, on the brief).

PER CURIAM
      Plaintiff Marven Roseus does not shave his face or head in accordance

with the dictates of his religious faith. He alleged that the State of New Jersey

and its Department of Corrections (DOC) violated the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, when he was dismissed from a

training program to become a corrections officer for failure to shave his face in

compliance with the program's grooming rules.

      Plaintiff appeals from two orders, dated June 30, 2017, which dismissed

his complaint with prejudice and denied his motion to amend his complaint. We

reverse and remand for further proceedings because there was no record

establishing that the DOC engaged in "a bona fide effort" or that it is "unable to

reasonably accommodate" plaintiff's religious practice without "undue

hardship[.]" N.J.S.A. 10:5-12(q)(1).

                                        I.

      This appeal arises from a motion to dismiss for failure to state a claim

under Rule 4:6-2(e). Accordingly, we accept the facts as alleged in plaintiff's

complaint. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). Plaintiff

is a member of Israel United in Christ and he identifies as Jewish. His religion

prohibits him from shaving his head or face.




                                                                          A-5086-16T4
                                        2
        In July 2016, plaintiff developed an interest in becoming a corrections

officer for the DOC and he attended two orientation meetings.              At both

orientations, he spoke to lieutenants about his religious practice and the

requirements that trainees shave their face and head. The second lieutenant to

whom plaintiff spoke told him to make a formal request for a religious

accommodation.

        On July 19, 2016, plaintiff submitted a religious accommodation request.

His request included a statement from an elder in his church explaining that

plaintiff's religion requires that he not shave either his head or face.

        On July 25, 2016, plaintiff arrived at the Corrections Officers' Training

Academy. Shortly after his arrival, plaintiff was approached by a major who

informed him that he was not properly shaven. Plaintiff told the major that he

had a religious accommodation that exempted him from shaving his head or

face.     Thereafter, a second major informed plaintiff that his religious

accommodation request had been rejected. The major then "proceeded to write

the plaintiff up and dismiss[ed] him from the training academy."

        On January 9, 2017, plaintiff filed a complaint against the State and the

DOC alleging violations of LAD. Specifically, plaintiff asserted four violations

of LAD in four separate counts: (1) discriminatory failure to hire; (2)


                                                                           A-5086-16T4
                                         3
discriminatory discharge; (3) failure to accommodate a sincerely held religious

belief; and (4) discrimination in a place of public accommodation. Plaintiff also

asserted a fifth count, seeking equitable and declaratory relief.

      Defendants moved to dismiss the complaint under Rule 4:6-2(e) for failure

to state a claim. Alternatively, defendants moved to transfer venue. Plaintiff

opposed the motion to dismiss and cross-moved to amend his complaint to add

factual allegations in support of his LAD claims and to assert claims that the

application of the DOC's policy prohibiting facial hair violated his right to

freedom of exercise of his religion in violation of the New Jersey and federal

Constitutions.1

      On June 23, 2017, the trial court heard oral argument on those motions

and, on June 30, 2017, the court entered orders granting defendants' motion to

dismiss, denying plaintiff's motion to amend, and dismissing the motion to

change venue as moot. The court issued a written opinion explaining its rulings.

      On the motion to dismiss, the trial court reasoned that the policy

restricting facial hair was "neutral" and "permissible." Accordingly, the court

held that "the accommodation [p]laintiff sought would create an undue hardship



1
 The record does not contain the proposed amended complaint. Accordingly,
we rely on plaintiff's descriptions of his amended complaint.
                                                                         A-5086-16T4
                                        4
on [d]efendants." In reaching those conclusions, the trial court relied on an

unpublished federal district court opinion, which had been affirmed by the

United States Court of Appeals for the Third Circuit. See Valdes v. New Jersey,

No. 05-3510, 2007 U.S. Dist. LEXIS 41038 (D.N.J. June 6, 2007), aff’d, 313

Fed. App'x 499 (3d Cir. 2008). 2

      In Valdes, the plaintiff sought to become a corrections officer for the DOC

and enrolled in the DOC training program. Plaintiff sought an accommodation

of his religious beliefs that required him not to shave his beard. Initially, the

DOC denied the accommodation, but Valdes filed claims with the federal Equal

Employment Opportunity Commission and the New Jersey Division of Civil

Rights. Thereafter, the DOC granted an accommodation to allow plaintiff to

wear a beard that was no longer than one-eighth of an inch. Prior to starting the

training program, plaintiff agreed to that accommodation. When he showed up

at the training program, however, plaintiff's beard exceeded the one -eighth inch

permitted length.   On three occasions during the initial days of plaintiff's

training, he was directed to shorten his beard, but he did not do so. Thereafter,

Valdes was discharged from the program.


2
  Rule 1:36-3 prohibits the citation of unpublished cases. We refer to the Valdes
decision only to explain how the trial court used that decision and not for
purposes of authority.
                                                                         A-5086-16T4
                                       5
      Valdes sued the DOC and the State alleging violations of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 to -17, and the free exercise

clause of the First Amendment to the federal Constitution. The district court

granted summary judgment to the DOC and the State finding, based on the

record before it, that the policy prohibiting facial hair was based on safety and

uniformity of appearance of trainees. The district court then reasoned that the

DOC's no-facial-hair policy was neutral, burdened religious conduct only

incidentally and, therefore, was lawful.

      The trial court in this matter, largely relied on the decision in Valdes. In

doing so, the court focused on plaintiff's request for a religious accommodation,

and reasoned that all of his LAD claims depended on showing that such an

accommodation was not an undue hardship on the DOC.

      Turning to plaintiff's motion to amend his complaint, the trial court

reasoned that the proposed amendment sought to add claims for violations of the

New Jersey and federal Constitutions.         The court then held that such

constitutional claims do not allow for the monetary damages plaintiff was

seeking. Consequently, the trial court denied the amendment as futile.

      Finally, the trial court reasoned that the motion to change venue was moot

since the complaint had been dismissed with prejudice.


                                                                          A-5086-16T4
                                        6
                                         II.

      On appeal, plaintiff contends that he pled viable claims under LAD, and

it was an error to dismiss his complaint for failure to state a claim. Plaintiff also

argues that the trial court only addressed his claim for failure to accommodate

his religious practice and did not properly address his claims for discriminatory

failure to hire, discriminatory firing, or for relief under the public

accommodation provision of LAD, N.J.S.A. 10:5-4. Finally, plaintiff argues

that the trial court should have allowed him to amend his complaint. In that

regard, before us plaintiff has represented that he is no longer seeking to amend

his complaint to assert a violation of his constitutional free exercise rights and

clarified that he is not seeking to assert a due process claim under 42 U.S.C. §

1983. Accordingly, plaintiff is only seeking to amend his complaint to add new

factual allegations to support his claims under LAD.

      Having reviewed the complaint and applicable law, we hold that plaintiff

pled viable claims under LAD. Accordingly, it was an error to dismiss his

complaint on a motion under Rule 4:6-2(e).

      We begin our analysis by identifying our standard of review. We review

de novo an order granting a motion to dismiss for failure to state a claim.


                                                                             A-5086-16T4
                                         7
Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017). In

considering a motion under Rule 4:6-2(e), courts must accept the facts asserted

in the complaint and should accord the plaintiff all favorable inferences. Ibid.

      LAD 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 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."    N.J.S.A. 10:5-12(q)(1).     That prohibition applies to

"obtaining or retaining employment[.]" 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).

      In analyzing claims under LAD, New Jersey has adopted the "procedural

burden-shifting methodology articulated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005);

Tisby v. Camden Cty. Corr. Facility, 448 N.J. Super. 241, 248 (App. Div. 2017).


                                                                           A-5086-16T4
                                        8
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 that "(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 adv erse

employment actions." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145,

167 (App. Div. 2005); Tisby, 448 N.J. Super. at 248.

      If a plaintiff establishes a prima facie case, an "inference of

discrimination" is created. Zive, 182 N.J. at 449. The employer can rebut the

inference by articulating a "legitimate, non-discriminatory reason for the

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

shifts back to the employee to prove, by a preponderance of the evidence, that

the reason provided by the employer is "merely a pretext for discrimination and

not the true reason for the employment decision." Ibid. 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 reasons provided by the employer. El-

Sioufi, 382 N.J. Super. at 173.


                                                                             A-5086-16T4
                                         9
      Our review of plaintiff's complaint here establishes that he has

demonstrated a prima facie case of employment discrimination. Plaintiff alleged

that he has a sincerely held religious belief that prohibited him from shaving his

head or face and that the DOC discriminated against him based on that religious

practice. Indeed, defendants concede that plaintiff pled "the elements of various

causes of action under LAD for failure to hire, discharge based under religious

discrimination, failure to accommodate a religious practice, or discrimination in

a place of public accommodation." See N.J.S.A. 10:5-12(a), (f)(1), and (q).

      Accordingly, the issue on this appeal is whether the DOC demonstrated

that it was unable to accommodate plaintiff's request for a religious

accommodation without undue hardship. Relying on the federal court de cision

in Valdes, defendants essentially argue that the record in Valdes supports a

motion to dismiss in this case because "a religious accommodation for [plaintiff]

regarding the DOC's grooming policy constitutes an undue hardship as a matter

of law." We reject that position as inconsistent with the express requirements

of LAD.

      LAD expressly requires that the DOC make a bona fide effort to

accommodate plaintiff. N.J.S.A. 10:5-12(q)(1). LAD also expressly requires

the DOC to demonstrate that an accommodation to plaintiff would be an "undue


                                                                          A-5086-16T4
                                       10
hardship." Ibid. As already noted, defendants moved for dismissal under Rule

4:6-2(e). Consequently, there is no record. In that regard, we do not have a

record of the DOC's actual grooming policy, the rationale for that policy,

whether the DOC has granted accommodations to others from its grooming

policy, whether the DOC engaged in a "bona fide effort" to accommodate

plaintiff, and whether an accommodation to plaintiff would impose an "undue

hardship" on the DOC.

      The DOC and State cannot rely on the record in Valdes to establish a

record in this case. Initially, it should be noted that the DOC and State did not

give the trial court here the actual record from Valdes. Instead, defendants rely

on the summary of that record as described by the district court and Third Circuit

in their respective opinions. Moreover, the district court decision in Valdes was

issued in 2007, over eleven years ago. We have no record that the DOC's policy

has not changed. In that regard, we can take judicial notice that the policies of

state agencies, including the policies of the DOC, can be modified, changed, or

amended. See N.J.R.E. 201; see also Grimes v. N.J. Dep't of Corr., 452 N.J.

Super. 396, 404-06 (App. Div. 2017) (recognizing that state agencies may act

informally to amend policies concerning internal management or discipline).

Nor do we have a record of whether the DOC has given accommodations


                                                                          A-5086-16T4
                                       11
concerning its grooming policy since 2007. Indeed, in Valdes the DOC granted

a religious accommodation to Valdes and allowed him to wear a beard of one-

eighth of an inch in length. That fact alone distinguishes Valdes from this case.

That fact also establishes that on at least one occasion, the DOC has given an

accommodation from its grooming policy.

      We also do not have a record in this case concerning the reasons for the

grooming policy. There is no certification or even a representation explaining

the reasons for the policy. Indeed, in Valdes, the district court described the

rationale as "a blanket requirement, necessitated for the health and safety of

those trainees who accepted the invitation, and to a lesser extent, for the

uniformity of the incoming trainee class." No. 05-3510, 2007 U.S. Dist. LEXIS

41038, at *19. The Third Circuit, however, on the same record, described the

policy justifications differently: "This policy has been justified by the Academy

for two reasons: 1. compliance with federal and state health regulations for the

use of respiratory masks; and 2. esprit de corps through uniformity of

appearance." 313 Fed. App'x at 500.

      In summary, when a religious practice or observance is at issue, LAD

requires the employer to demonstrate both (1) a bona fide effort to

accommodate; and (2) that an accommodation would cause an undue hardship.


                                                                         A-5086-16T4
                                      12
Here, there was no record of either. Thus, we vacate the June 30, 2017 order

dismissing plaintiff's complaint and reinstate that complaint. We, therefore,

remand for further proceedings.

      In directing a remand, we have also considered our decision in Tisby. 448

N.J. Super. 241. This case is distinguishable from Tisby on two grounds: (1) its

procedural posture; and (2) the policy at issue. In Tisby, we affirmed summary

judgment in favor of the DOC in a case where the DOC rejected a religious

accommodation to a Muslim woman corrections officer who sought to wear a

Khimar, a tight-fitting head covering. Id. at 250. Tisby came before us on a

summary judgment record and the record included the reasons for the DOC

policy of not allowing head coverings to be worn by corrections officers.

Consequently, we were able to conclude that the DOC's reasons for denying a

religious accommodation were not pretextual and that plaintiff had failed to

overcome a finding of hardship to the DOC. Ibid.

      Moreover, in Tisby, plaintiff did not establish grounds for further

discovery. Here, in contrast, plaintiff should be allowed some limited discovery

on remand.     Plaintiff has alleged that the DOC has previously granted

accommodations to its grooming policy. That allegation is supported by the




                                                                        A-5086-16T4
                                      13
facts in Valdes. Moreover, plaintiff should be accorded some discovery to

explore whether there was bona fide effort to accommodate his religious beliefs.

      On remand, the trial court should also consider plaintiff's motion to amend

his complaint as modified by the representations he made on this appeal. In that

regard, as already noted, plaintiff has withdrawn the request to assert an

amended constitutional violation claim and only seeks to add factual allegations

supporting his reinstated LAD claims. Since plaintiff failed to include his

proposed amended complaint in the record on this appeal, and since plaintiff has

now represented that he will modify his proposed amended complaint, we leave

it to the trial court on remand to evaluate the new amended complaint.

      Finally, we also direct the trial court to address the motion to change

venue. That motion is no longer moot. Plaintiff has represented that he d oes

not oppose the motion. Nevertheless, we do not address the motion because it

has not yet been considered by the appropriate assignment judge.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-5086-16T4
                                      14
