United States District Court, District of New Jersey
February 11, 1999
ABDUL HAKIM SADRUDDIN, PLAINTIFF,
CITY OF NEWARK, ET AL., DEFENDANTS. RAYMOND T. HUNTER, PLAINTIFF, V. CITY OF NEWARK, ET AL., DEFENDANTS. IBRAHIM ABDUL-HAQQ, PLAINTIFF, V. CITY OF NEWARK, ET AL., DEFENDANTS.
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:
(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 F.2d 141
, 144 (5th
As support for their contention that the plaintiffs have not
plead the basic elements of a Title VII religious discrimination
action, the defendants list various regulatory and other safety
rules in support of Order D-5. The plaintiffs' pleadings cannot
be overcome by the defendants' defense of the virtues and
validity of the employment requirement at issue. These virtues go
to the reasonableness or restrictiveness of Order D-5 rather than
to the sufficiency of the plaintiffs' pleadings. Haqq has plead
allegations which, with their inferences, support a claim of
violation of Title VII. He insists that compliance with Order D-5
is contrary to his religion, that he informed Kossup of this
conflict and that he was both penalized and discharged for
failing to comply with the employment requirement. In addition, a
finding of probable cause by an administrative agency, such as
the EEOC, though not determinative, is admissible to help
establish a prima facie case of discrimination in violation of
Title VII. See Philbrook v. Ansonia Board of Educ.,
757 F.2d 476, 481 (2d Cir. 1985); Smith v. Universal Servs.,
454 F.2d 154, 157-58 (5th Cir. 1972). Haqq has received two findings of
probable cause from the EEOC in this matter. Based on the record
before us, the Court finds that the plaintiff has plead the basic
elements of religious discrimination under Title VII.
2. Whether There Was Proper Service of Process
The defendants further insist that the plaintiff's complaint be
dismissed because service of process did not comply with the
requirements of Fed.R.Civ.P. 4(c)(2) and 4(j)(2). Rule 4(j)(2)
directs that "service upon a . . . municipal corporation . . .
shall be effective by delivering a copy of the summons and the
complaint to its chief executive officer or by serving the
complaint in the manner prescribed by the law of that state for
the service of or other like process upon any such defendant."
The applicable law in New Jersey, N.J.S.A. 2A:15-36, requires
When an action is commenced . . . against a county or
municipality the complaint and the summons or other
process shall be served forthwith, after its delivery
to the sheriff or other officer for service, on the
director or clerk of the board of chosen freeholders
as the case may be, and a copy thereof shall be left
with such office.
The plaintiff served process on the City of Newark's Law
Department rather than the Clerk, and therefore, the defendants
argue, service was not properly effected in violation of
2A:15-36. However, Rule 4(j)(2) also allows for service upon the
"chief executive officer." The plaintiff's service of process
placed the defendant Mayor's name under "individual . . . to . .
. serve." That service on the city's chief executive officer was
accepted by an attorney in the City's law department does not
render the service ineffective. The general rule is that service
of process upon an authorized agent or attorney is as valid and
binding as statutory service upon the principal. Cf. United
States v. Davis, 38 F.R.D. 424, 425-26 (N.D.N.Y. 1965); Union
City v. Capitol-Theatre Amusement Co., et al., 26 N.J. Misc
102, 57 A.2d 226, 228 (1948); Purcell v. State (Bennett,
Prosecutor), 68 N.J.L. 519, 520-21, 53 A. 235 (1902). The
service of process contained the Mayor's name as representative
of the City of Newark. An attorney in the Law Department, as a
representative of the City, accepted service on behalf of the
Mayor. Such service of process on an authorized attorney in the
City's law department is as valid and binding as service on the
Mayor as representative and on the City as principal.
The defendants also rely on Wells v. City of Portland, for
the claim that the plaintiff's service was invalid. 102 F.R.D.
796, 799 (1984). Service of process had been made on an
administrative assistant in the Portland City Attorney's office.
Id. The Court held that service had to be quashed pursuant to
the Oregon Rule of Civil Procedure which required that service be
made on, among other persons, the City's attorney. Id. Here,
the plaintiff did not make service on an administrative
assistant, but rather effected
service upon an attorney on the staff of the Newark Corporation
Counsel. Under the Wells standard the plaintiff's service of
process satisfied Fed.R.Civ.P. 4(j)(2). The defendant's motion to
dismiss based on improper service of process is denied.*fn1
3. Whether the Discrimination Claim is Time-barred
The defendants state that any claim of discrimination should be
dismissed as time-barred under 42 U.S.C. § 2000e-5(e)(1), which
requires that a "charge shall be filed by or on behalf of the
person aggrieved within three-hundred days after the alleged
unlawful employment practice occurred. . . ." The defendants
argue that since the EEOC failed to conciliate the claim based on
Haqq's suspension on February 7, 1996, the 300 day time limit of
§ 2000e-5 began on that date and required that plaintiff file a
complaint based on the suspension by October or November 1996.
Haqq did not file his complaint until January 28, 1998. The
defendants argue that this means that any claim based on the
suspension is time-barred. This argument is not clear, since it
presupposes the failure of the EEOC to conciliate as the
"unlawful employment practice" which caused the time period to
begin to run. This Court is more persuaded by the reasoning of a
Fifth Circuit opinion, Page v. U.S. Indus., Inc., 556 F.2d 346
(5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54
L.Ed.2d 796 (1978). A black female front desk clerk was
discharged from her employment with a New Orleans hotel. Id. at
350. She filed a timely complaint with the EEOC, which issued a
finding of reasonable cause. Id. The EEOC eventually sent a
letter informing her that its conciliation efforts had failed.
Id. The district court agreed with the defendants that the
letter of nonconciliation was sufficient to begin the running of
the statutory time period for filing suit. Id. The circuit
court disagreed, ruling that "to begin the . . . limitation
period, the complainant must receive notice that the EEOC has
completed its administrative efforts." Id. The court went on to
say that "the [non-conciliation] letter only related that
conciliation efforts had failed; it did not inform [the
plaintiff] that the EEOC had decided not to sue." Id.
Similarly, the time period for the plaintiff here to file his
suit did not begin when he received the non-conciliation letter
in February, 1996.
According to the plaintiff, the suspension and the
circumstances leading up to the suspension were not an assortment
of unrelated incidents, but a chain of continuous and connecting
discriminating episodes which culminated with his termination.
Cf. Bethel v. Jefferson, 589 F.2d 631, 636 (D.C.Cir. 1978);
Bonham v. Dresser Indus., Inc., 569 F.2d 187, 192 (3d Cir.
1977) (finding that the time period under the Age in
Discrimination Act, 29 U.S.C. § 621-634 (1976), does not begin
to run until the employee knows or reasonably should know that
employer has made final decision to terminate him and he has
ceased to render services). Once again, taking all facts and the
inferences therefrom in the light most favorable to the
non-moving party, the Court agrees with this reasoning and finds
that these claims are timely-made.
4. Whether the Complaint is Time-barred
The time for filing an employment discrimination complaint
begins when the employee has notice of an EEOC decision, which
usually occurs on the date the employee receives the right-to-sue
letter. See Mosel v. Hills Department Store, Inc.,
789 F.2d 251, 252 (3d Cir. 1986). Upon receipt of the right-to-sue letter,
a plaintiff has ninety days within which to file suit.
42 U.S.C. § 2000e-5(f)(1); See also Kremer v. Chemical Construction
Corp., 456 U.S. 461, 465, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).
Plaintiff Haqq received the right-to-sue letter about October 22,
1997. (See Compl., ¶ 22). He filed the Complaint in the present
suit ninety-eight days later on January 28, 1998. The 90-day rule
is not a jurisdictional predicate, and a court can extend the
limitations period if there is a recognized equitable
consideration. Compare Id. at 253; Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 146 (2d
Cir. 1984). One such equitable consideration is that a
complainant brings suit as a pro se litigant. A liberal
interpretation is given the procedural requirements of a
lay-initiated proceeding under § 2000e-5. See Huston v. General
Motors, 477 F.2d 1003, 1008 (8th Cir. 1973). Plaintiff Haqq
began these proceeding as a pro se litigant. Although he later
retained an attorney, that a lay complainant might have an
attorney at a certain stage of process is irrelevant to determine
if equitable principles should be used to extend the time periods
of § 2000e-5. See Bethel v. Jefferson, 589 F.2d 631, 642
(D.C.Cir. 1978). Equitable considerations may allow a plaintiff
to sue under § 2000e-5 although the complaint was not filed
within the ninety-day period. See Page v. United States Indus.,
Inc., 556 F.2d 346, 351 (5th Cir. 1977), cert. denied,
434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978). Because of the
plaintiff's original lay status and the short delay period of
eight days, the Court will permit the plaintiff's discrimination
claim despite the procedural infirmity.
5. Whether the Discrimination Claim is precluded under Res
Judicata and Collateral Estoppel
Lastly, the defendants state that the plaintiff's claim is
precluded, under res judicata and collateral estoppel, by the
decision of the Administrative Law Judge in In the Matter of
Yasin, OAL Docket No. CSV 3764-97 (CSV 11443-95 ON REMAND).
Under res judicata, a cause of action that was finally determined
between parties on the merits by a tribunal having jurisdiction
cannot be relitigated by those parties or their privies in a new
proceeding. See Roberts v. Goldner, 79 N.J. 82
397 A.2d 1090
(1979). Collateral Estoppel is a branch of the broader
doctrine of res judicata which bars relitigation of any issue
actually determined in an earlier action, generally between the
same parties, although involving a different claim or cause of
action. See State v. Gonzalez, 75 N.J. 181
, 186, 380 A.2d 1128
(1977). Yasin involved the issue of whether the Newark Fire
Department justifiably suspended a Muslim firefighter for his
refusal to shave his beard. The Administrative Law Judge found
that the suspension was justified in light of the fire
department's safety concerns.
The plaintiffs assert that because they were not parties to the
Yasir action, the present suit is not precluded under either of
the above-mentioned doctrines. With regard to the issue of res
judicata, the defendants argue that although the present
plaintiffs were not parties to the action, they are in "privity"
with the Yasir plaintiff since they are all firefighters (or at
least are representing the interests of firefighters). However,
privity requires that the parties have such a connection of
interest in the litigation and the subject matter that reason and
justice precludes a relitigation of the issues. See Hotel and
Restaurant Employees & Bartenders Int'l Union Local 54 v. Read,
641 F. Supp. 757, 761 (D.N.J. 1986) (quoting Hudson Transit Corp.
v. Antonucci, 137 N.J.L. 704, 707, 61 A.2d 180 (1948)); Bango
v. Ward, 12 N.J. 415, 422, 97 A.2d 147 (1953). That is not the
case here. Yasir concerned whether the fire department was
justified to suspend a firefighter twelve days. Here, the
plaintiff, not a party to Yasir, is challenging a complete end
to his employment with the department.
The defendants assert that "New Jersey courts follow the rule
of collateral estoppel, or as it is also known, issue preclusion,
described in the Restatement (Second) of Judgements." The
Restatement instructs that "when an issue of fact or law is
actually litigated and determined by a valid and final judgment,
the determination is conclusive in a subsequent action between
the parties, whether in the same or a different claim."
Restatement (Second) of Judgements § 27 at 250. However, the
Restatement also advises that issue preclusion cannot be invoked
when ". . . there is a clear and convincing need for a new
determination of the issue . . . because of the potential adverse
impact of the determination on the public interest or the
interests of persons not themselves parties in the initial
action." Id. § 28 at 273; see also Hernandez v. Region Nine
Housing Corp., 146 N.J. 645, 660, 684 A.2d 1385 (1996). The
interests of reason and justice, as well as the adverse effect of
upholding the termination of the plaintiff preclude the
invocation of collateral estoppel or res judicata.
For the foregoing reasons, the Court denies the defendants'
motion to dismiss.
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. Upon consideration of the
submissions of the parties and for the reasons stated in the
The Court denies the defendants' motion.