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.
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
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
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.
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
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
In a Title VII religious discrimination case, the plaintiff
must show that:
See Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997);
Brener v. Diagnostic Center Hospital, 671 ...