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February 11, 1999


The opinion of the court was delivered by: Walls, District Judge.


Defendant City of Newark and individual defendants move to dismiss the complaint of plaintiffs Ibrahim Abdul-Haqq, Abdul Hakim Sadruddin and Raymond Hunter for failure to state a claim upon which relief can be granted. The motion is denied.

Factual Background

Ibrahim Abdul-Haqq ("Haqq") had been employed as a Newark City Firefighter and Battalion Chief since 1983. The Newark Fire Department ("the Department") maintains an employment regulation, General Order D-5 ("Order D-5"), which prohibits the wearing of beards, goatees or other hair on or about the chin or lower jawbone area of the employee. In October 1994, Haqq requested from defendant Stanley J. Kossup ("Kossup"), the director of the Department, an exemption from that regulation because, as a male adherent to the Islamic faith, he was required to wear facial hair or a beard. Kossup refused, contending that Order D-5 was necessary to safely and effectively wear the self-contained breathing apparatus ("SCBA") used by Newark firefighters. On October 25, 1994, Haqq was ordered to shave his facial hair. (Am.Compl., ¶ 13). Upon his refusal, on October 26, 1994, he was suspended from the Department. Id. The suspension ended on December 7, 1994, and he filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. Id. at 14. On September 29, 1995, the EEOC, after an investigation, issued a determination of probable cause with respect to the complaint. Id. at 16. On February 7, 1996, the EEOC determined that its efforts to conciliate the charge were unsuccessful. (Ex. B, EEOC Correspondence).

On November 22, 1996, Haqq was terminated from the Department after a disciplinary hearing. Id. at 18. The dismissal was based, in part, on his refusal to shave his beard. On November 27, he filed another complaint with the EEOC, charging that his dismissal was in violation of Title VII and in retaliation for his previous complaint with the Commission. Id. at 19. On December 24, 1996, the EEOC issued a determination of probable cause in connection with the November 22 termination. Id. at 21. On October 22, 1997, the EEOC issued a right-to-sue letter to the plaintiff. On January 28, 1998, Haqq filed a complaint in this Court against the City of Newark, the Newark Fire Department and Stanley J. Kossup, individually and as director of the Newark Fire Department, (collectively, "the defendants"). The complaint alleges violations of Title VII, The Civil Rights Act of 1991, 42 U.S.C. § 1983, 42 U.S.C. § 1981 and The New Jersey Law against Discrimination ("NJLAD"), N.J.S.A. 10-5 et seq. The plaintiff seeks to enjoin the defendants from alleged unlawful discriminatory employment practices based on religious beliefs and to redress deprivation and violation of religious rights guaranteed under the First and Fourteenth Amendments to the United States Constitution, and the New Jersey Constitution. On June 18, 1998, this Court consolidated the Haqq matter with another matter, Abdul Hakim Sadruddin and Raymond T. Hunter v. City of Newark, et. al. The defendants have filed the present motion to dismiss, which is considered a motion to dismiss the complaints of all plaintiffs.

Legal Standard

On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. See Hishon v. King and Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).


1. Failure to Plead Basic Elements of Religious Discrimination
  under Title VII

The defendants first move to dismiss the plaintiffs' claim for failure to plead the basic elements of prima facie religious discrimination under Title VII. Title VII makes it unlawful for an employer to discriminate against an employee based on the employee's religion. 42 U.S.C. § 2000e-2(a)(1). The term "religion" includes all aspects of religious observances and practices, as well as beliefs, unless the employer can demonstrate that he is unable to reasonably accommodate the employee's religious observances or practices without undue hardship on the conduct of the employer's business. 42 U.S.C. § 2000e(j); See also, Little v. Wuerl, 929 F.2d 944, 949 (3rd Cir. 1991).

In a Title VII religious discrimination case, the plaintiff must show that:

  (1) he or she had a bona fide belief that compliance
  with an employment requirement would be contrary to
  his or her religious belief or practice; (2) he or
  she informed the employer about the conflict; and (3)
  he or she was discharged or penalized

  for failing to comply with the conflicting employment

See Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997); Brener v. Diagnostic Center Hospital, 671 ...

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