Schorr & Associates’ Employment Case of The Week ending January 20, 2017

By Adam L. Schorr

Linda Tisby v. Camden County Correctional Facility,  2017 N.J. Super. LEXIS 6 (App.Div. Jan. 18, 2017)

We don’t always cover employee defeats in this corner of the internet, but this case caught our interest. Why? It is a good reminder that no matter how clear the discrimination is, a legitimate non-discriminatory reason can still end your case real quick.

Ms. Tisby actually brought two different lawsuits, but they are based largely on the same facts and address largely the same legal issues. Ms. Tisby began working as a Corrections Officer in 2002. In 2015, she reverted to Sunni Muslim (in the Sunni faith, you “revert”, not “convert). As part of her new faith, Ms. Tisby began wearing a traditional head-covering. The head covering violated the Defendant’s uniform policy. She refused to stop wearing it, resulting in suspensions and ultimately termination. Ms. Tisby then brought suit for religious discrimination.

The Defendant brought a Motion to Dismiss for Failure to State a Claim that was converted to a Motion for Summary Judgment, as the Motion relied on extrinsic documentation and evidence. It was acknowledged and undisputed that the Plaintiff established a prima facie case. However, the Defendant argued that the policy against head coverings was not religiously motivated but had three purposes: to prevent it from being used as a weapon, to prevent it from being used to hide contraband, and to ensure that all officers are presented in a singular uniform. Therefore, accommodating the Plaintiff in allowing her to wear a head covering would be an undue hardship. The trial judge agreed with the Defendant’s argument. The Third Circuit affirmed.

The three-step burden-shifting analysis remains key to discrimination cases of all kinds. Here, it was undisputed that the Plaintiff was religious and required an accommodation for her religion. It was undisputed that the Plaintiff requested an accommodation and was denied. it was undisputed that adverse job action was taken against the Plaintiff specifically because she expressed her religion. And yet the Plaintiff still lost, because if a Defendant can provide a non-discriminatory, non-pretextual reason for their actions, it is the Plaintiff’s burden to show why the reason(s) is false. The Plaintiff could not do that here, and thus she lost her case.

It’s also worth noting the conversion of a Motion to Dismiss to a Motion for Summary Judgment. When extrinsic evidence not in the Complaint is relied upon to support a Motion to Dismiss, it can and should be converted to a Motion for Summary Judgment. It does appear that Plaintiff’s Counsel correctly identified what type of Motion it was, but it is something to keep an eye on.

Given our new President’s stance on Muslims, I get the distinct feeling this isn’t the last Muslim religious discrimination case to be covered here over the next few years.