August 29, 2007
JEVON HICKS, PLAINTIFF-APPELLANT,
HUDSON COUNTY CORRECTIONAL CENTER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-1527-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2007
Before Judges Coburn, R. B. Coleman and Gilroy.
Plaintiff, Jevon Hicks, appeals from a November 18, 2005, order granting summary judgment in favor of defendant, Hudson County Correctional Center (HCCC) and dismissing plaintiff's complaint, with prejudice. In a second order, also dated November 18, 2005, the court denied plaintiff's motion for partial summary judgment whereby plaintiff sought a determination that he had established a prima facie case that HCCC had violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Because the evidence on the motions was not so one-sided that plaintiff could not have prevailed at trial, we reverse the order granting summary judgment and remand for further proceedings. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In a complaint filed on March 21, 2005, and in a September 20, 2005, certification (captioned "Affidavit of Jevon Hicks"), plaintiff certified that he is a practicing Rastafarian and that the implementation of the grooming policy of his employer, defendant HCCC, would force him to go against his religious beliefs. He maintains that one of the tenets of this religion is the wearing of long hair and dreadlocks.
Plaintiff began working for defendant as a corrections officer in September 1994. In 2001, defendant drafted and disseminated a policy manual to its employees which stated, in relevant part, that the hair of male corrections officers "shall be no longer than collar length when in standing position and shall not fall over the ears or eyebrows." Notwithstanding that stated policy, plaintiff continued to wear his hair in an uncut, uncombed style known as dreadlocks. He was permitted to comply with the length requirement of the policy manual by tying his hair into a bun. However, as of November 1, 2004, HCCC Director, Oscar Aviles, "re-promulgated and refined" the policy guide so that it thereafter provided:
Custody staff member while on duty and/or in uniform shall maintain a neat, well-groomed appearance and shall adhere to the following standards:
A) Hair (males):
The custody staff member's hair shall be neatly trimmed, combed or brushed and shall be cut to present a tapered appearance when combed. The hair shall not fall over the ears or eyebrows, or extend past the bottom of the collar of the shirt when standing with the head in a normal posture. Sideburns shall be 1/2 inch in length and shall not extend past the center of the ear.
The hair shall not be pinned nor twisted to meet this standard.
The hair shall not interfere with the proper wearing of any authorized uniform headgear.
When a wig or hairpiece is worn, the custody staff member shall conform to the above stated provisions of this section.
According to his certification, Director Aviles "re-adopted a hair-grooming policy intended to protect the safety and foster esprit de corp of the troops. Specifically, the hairline policy was implemented for corrections officer[s] who are involved in an altercation with an inmate." Female custodial staff members were not affected by the revised policy. They are still allowed to pin or twist their hair to comply with the applicable hair standards.
In spite of the revision of the policy for male corrections officers, plaintiff refused to cut his hair, asserting that it was against his religion. As a consequence, defendant subjected plaintiff to notices of progressive disciplinary actions that prompted plaintiff to file a complaint in the Law Division, Hudson County, alleging various violations of the LAD.*fn1
Plaintiff alleged that HCCC discriminated against him because of his religious beliefs (count one), subjected him to a hostile work environment (count two), and discriminated against males by giving women preferential treatment in respect of the hair-grooming policy (count three)*fn2.
On September 14, 2005, plaintiff filed a motion for partial summary judgment and defendant filed a cross-motion for summary judgment on September 30, 2005. On October 7, 2005, the court heard oral argument from both parties, but carried the motions in order to give the parties an opportunity to supplement the record. In the interim, the court stayed the implementation of any disciplinary sanctions pending a further hearing, but it allowed defendant to continue to serve disciplinary notices for continued violations. Prior to November 18, 2005, the date set for continued oral argument, counsel for plaintiff provided printouts from the internet describing Rastafarianism to the court and to opposing counsel.
At the conclusion of the resumed oral arguments, the judge determined that the HCCC policy was not discriminatory on its face; that the policy manual did not constitute a per se LAD violation; and that there was a rational relationship between the policy and an important interest, safety. The judge explained:
For the reasons that have been argued here and spelled out by the [defendant] it [wearing long hair] - creates a hazard. . . . But the risk that is created in the environment in which he works makes it very clear that there is a rational relationship between that policy and the government interest involved, which is to protect not only Mr. Hicks, but others with whom he is working.
Accordingly, the court granted defendant's cross-motion for summary judgment,*fn3 and plaintiff now appeals.
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. That is to say, accepting as true all evidence supporting the party opposing the motion and according to him or her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Upon appellate review, the court reviews the grant or denial of summary judgment applying the same standard as the trial court and, in effect, conducts a de novo review of the facts on the record. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
On appeal, plaintiff argues that summary judgment was improvidently granted and that the court utilized an inappropriate standard. He contends "the court applied the analysis under freedom of expression case law while the matter should have been analyzed pursuant to New Jersey Law Against Discrimination and its progeny."*fn4 We agree that the motion was improvidently granted because, in our opinion, the evidence was not viewed in the light most favorable to the party opposing the motion for summary judgment. On the other hand, we do not find it was inappropriate for the court to seek guidance from federal precedents in analyzing claims of religious discrimination or to conclude that there was a rational relationship between the employer's policy and an important government interest. The court's expression in that regard was essentially a finding that the employer had offered a legitimate non-discriminatory reason for the policy, one of the prongs of the burden-shifting analysis applicable to a case under the LAD.
Plaintiff emphasizes that his complaint does not seek relief under the federal constitution or under any federal statute, and that he relies solely on the New Jersey LAD. In pertinent part, N.J.S.A. 10:5-12a provides:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: [f]or an employer, because of race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]
See also Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 397-98 (2005).
"The overarching goal of the [LAD] is nothing less than the eradication of the cancer of discrimination." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (internal quotation marks and citation omitted).
The LAD prevents only unlawful discrimination against [the class of protected] individuals; it does not prevent the termination or change of employment of any person who "is unable to perform adequately the duties of employment, nor [does it] preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standard." [Ibid. (quoting Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 12 (2002)).]
"What makes an employer's personnel action unlawful is the employer's intent." Ibid.
Defendant correctly states that for most employment discrimination claims under the LAD, we have adopted the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). That framework is not designed for rigid application. Gerety, supra, 184 N.J. at 399; Viscik, supra, 173 N.J. at 14. "McDonnell Douglas enables a plaintiff to make his or her case through circumstantial evidence." Zive, supra, 182 N.J. at 447.
As we have previously noted, the elements comprising the traditional formulation of the prima facie case of religious discrimination are as follows:
(1) plaintiff belongs to a protected class;
(2) [he] was performing [the] job at a level that met [the] employer's legitimate expectations;
(3) [he] suffered adverse employment action; and
(4) others not within the protected class did not suffer similar adverse employment actions. [El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005).]
The establishment of the prima facie case creates an inference of discrimination. Zive, supra, 182 N.J. at 449. In this instance, plaintiff belongs to a class of religious observants protected by the LAD. He had been employed in his job for approximately ten years when a grooming policy was "re-promulgated and refined" in such a way that it forced him to choose between his religion or his job. There is no evidence that the position was eliminated or that it would not be filled by someone whose religious beliefs do not prohibit cutting their hair.
Once the prima facie case is established, the following elements of the McDonnell Douglas model apply:
[T]he matter moves to the second stage of McDonnell Douglas, when the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action.
In the third stage of the burden-shifting scheme, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision. To prove pretext, a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent.
That burden merges with the plaintiff's ultimate burden of persuading the court that she or he was subjected to intentional discrimination. [Zive, supra, 182 N.J. at 449 (internal citations omitted).]
In this case, the grooming policy regulating hair length is neutral on its face and generally applicable to all male corrections officers. Plaintiff has not alleged that the policy was applied only to him. Thus, we take plaintiff's complaint to encompass a claim of disparate impact. Disparate impact claims fall within the discriminatory proscriptions of the LAD and it is the federal model which "informs this State's determination of whether a proscribed disparate impact has occurred." Esposito v. Twp. of Edison, 306 N.J. Super. 280, 289 (App. Div. 1997), certif. denied, 156 N.J. 384 (1998).
[C]laims that stress "disparate impact" . . . involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . . . Proof of discriminatory motive, we have held, is not required under a disparate impact theory. [Gerety, supra, 184 N.J. at 398 (quoting Peper, supra, 77 N.J. at 81-82)].
"Rather [than proving discriminatory motive], a plaintiff must show that a facially neutral policy 'resulted in a significantly disproportionate or adverse impact on members of the affected class.'" Id. at 399 (quoting United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 47 (App. Div.), certif. denied, 170 N.J. 390 (2001)).
Plaintiff's contention is that compliance with the grooming policy for males discriminates against him as a practicing Rastafarian. While defendant asserts that plaintiff "does not indicate, under oath, the nature or principles of his Rastafarian beliefs or how they would be violated by the grooming policy[,]" we note that plaintiff plainly stated in his affidavit in support of his motion that HCCC's policy on hair length and the specification that the standard could not be met by pinning or twisting the hair "would force [him] to go against [his] religious beliefs." The internet article produced by plaintiff's counsel, though not under oath, also lends support to plaintiff's assertion that cutting one's hair would offend the religious beliefs of a Rastafarian. See also Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) (assuming that the Rastafarian faith is a bona fide religion for purposes of the First Amendment); and May v. Baldwin, 109 F.3d 557 (9th Cir.), cert. denied, 522 U.S. 921, 118 S.Ct. 312, 139 L.Ed. 2d 241 (1997) (where a Rastafarian inmate was objecting that a hair search procedure that required him to loosen his dreadlocks violated his religious beliefs). See also Timothy B. Taylor, Note, Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Geor. L.J. 1605 (1984). If there was a dispute as to the authenticity of plaintiff's faith or beliefs on the motions for summary judgment, those issues should have been viewed in the light most favorable to plaintiff. R. 4:46-2(c).
The record indicates that plaintiff, at the time the motion was decided, had received numerous notices of adverse disciplinary actions as a direct result of the implementation of the revised grooming policy. Indeed, defendant was threatening to seek major disciplinary action and to terminate plaintiff. The record before us does not indicate whether or not plaintiff has in fact been discharged from his position; however, defendant has made clear that is its objective, unless plaintiff sets aside his professed religious beliefs and complies with the challenged grooming policy. Compliance with the policy would force plaintiff to compromise his professed religious beliefs.
Consistent with the second stage of the McDonnell Douglas model, defendant has articulated safety concerns and esprit de corp as the justifications for the policy, that is, that the "challenged practice is job related for the position in question and consistent with business necessity." See, e.g., 42 U.S.C.A. § 2000e-2(k)(1)(A)(i); Esposito, supra, 306 N.J. Super. at 290.
Defendant argues that full compliance with the grooming policy is necessary because:
[t]he hair length may pose a potential problem during an altercation in that the hair can be grabbed and used to . . . hold and yank an officer to the ground or against an object, injuring the officer and putting other officers and inmates in jeopardy.
Defendant's assertion of security and safety concerns are certainly not frivolous and, indeed, such concerns have been recognized as presumptively valid. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed. 2d 708 (1976). However, such recognition is not dispositive, because:
[A] plaintiff may defeat a motion for summary judgment "by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." [Dewees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]
We note that the record reflects nothing other than the Director's statement and common knowledge to establish that long hair poses a safety hazard in an altercation. Yet, the record does not indicate why female corrections officers are still permitted to pin or twist their long hair to meet the standard, and there is no evidence or data explaining why any safety hazard cannot be reduced to an acceptable level by pinning or twisting the hair or by some means other than cutting the hair. Furthermore, the record does not disclose any detail about the motivation for the Director's changing the grooming policy in 2004. Defendant does not cite to any reports on the relevant safety issue, and there is no reference to any specific incident or study that precipitated the change in policy. Finally, contrary to the impression formed by the motion judge, plaintiff worked in the subject environment from 1994 to 2004, ostensibly without incident.
Under such circumstances, it is impossible for us to know whether plaintiff will be able to satisfy his ultimate burden of persuasion. However, we are satisfied that on the record that exists at this stage, the matter was not ripe for summary judgment at the time the order was entered.
Reverse and remand for further proceedings consistent with this opinion.