NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

PER CURIAM.

Plaintiff Yvonne Lombardo Brown appeals from the Law Division's order denying her motion to amend her complaint against her former employer, defendant Our Lady of Lourdes Medical Center, Inc.(Lourdes) and its medical director, defendant Dr. Alan Pope, to include a claim of religious discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-42. In her complaint, plaintiff alleged she was discharged from her position for failing to comply with Lourdes' mandatory flu vaccination policy that included an exemption for employees whose religious beliefs are violated by vaccination. She argued to the court that "[b]y preferring the religious over the non-religious, the defendants discriminated against the plaintiff." The motion judge denied the application after he determined her claim was not cognizable under the LAD.

On appeal, she argues that because her employer's policy discriminated against employees who sought an exemption on non-religious grounds, its policy violated the LAD. We disagree and affirm.

The facts set forth in the motion record, including plaintiff's proposed amended complaint, can be summarized as follows. Plaintiff worked for Lourdes as a community health educator. In 2012, Lourdes implemented its Influenza Vaccination Policy (Policy) that required all employees to obtain an influenza (flu) vaccine each year. The policy's stated purpose was "to minimize transmission of the [flu] in the workplace by providing occupational protection to [staff] and thus preventing transmission to fellow [staff members] and to members of the community . . ." served by Lourdes.

Employees "who [could not] receive vaccination for religious beliefs supported by documentation from clergy" or due to "documented medical conditions" were exempt from the Policy's requirement. Those seeking an exemption for religious or medical reasons were required to file the appropriate form and were entitled to appeal the denial of any such request. For all others, failure to comply with the Policy would result in a one-week suspension without pay and, if they still failed to comply, termination of employment.

In October and December 2012, plaintiff requested a medical exemption.1 The requests were denied by Pope. "Fearing for her health and relying on the recommendation of" her doctor, plaintiff refused to be vaccinated. On January 21, 2013, she was suspended without pay for one week. In March 2013, she was terminated from her employment for violating the Policy.

Plaintiff filed a complaint alleging defendants violated the LAD by failing to provide a medical accommodation, terminating her for exercising her rights, and that Pope aided and abetted Lourdes' wrongful conduct. After defendants filed an answer, plaintiff filed her motion to amend her complaint to add a claim for religious discrimination.

Judge Anthony M. Pugliese denied plaintiff's application, placing the court's reasons for doing so on the record. In his decision, the judge recited the elements of a prima facie case of religious discrimination under the LAD, acknowledged the Policy's stated purpose — minimization of the risk of transmission of the flu — and found that the religious exemption that the hospital was required by law to provide, did not "run contrary to [the] stated purpose." The court recognized that, while the exemption may have rendered the Policy "somewhat marginally less effective," it did not "invalidate" the Policy or "take away its entire purpose to minimize transmission." As the Policy was "designed to minimize risk insofar as it [could] within the law that [Lourdes] has to abide by," the judge found it to be a valid policy. Because plaintiff did not allege "a sincerely held religious belief," an "employer has the right to require certain things of the job[,]" and "in the healthcare field, immunization is a reasonable . . ." requirement, the court found no "basis for this plaintiff on a case of religious discrimination." Judge Pugliese acknowledged that, to the extent plaintiff complained of "being treated differently, . . . it smack[ed] of an equal protection argument, but not a religious discrimination" claim.

After the judge denied plaintiff's motion to amend, defendants filed a motion for summary judgment, which the court granted on

May 1, 2015, dismissing the balance of plaintiff's claim.

Plaintiff filed this appeal from the court's order denying her motion to amend her complaint. She did not appeal the court's order granting summary judgment in defendants' favor.

On appeal, plaintiff argues the Policy violates the LAD and is "discriminatory on its face" because it "confers a benefit on religious believers that is not available to non-believers" and "bears no rational relation to issues of public health and patient safety," as "it imposes no restrictions of any kind on those who have been granted exemptions" in order to "facilitate its stated purpose." She relies upon our decision in Valent v. Board of Review, Department of Labor, 436 N.J.Super. 41 (App. Div. 2014), in which we held the Board of Review violated a terminated employee's First Amendment rights and unconstitutionally endorsed the employer's religious exemption to its mandatory vaccination policy by denying the plaintiff's application for unemployment benefits upon finding she was terminated for misconduct based solely on her refusal to comply with her employer's policy. Alternatively, plaintiff argues, "[i]f . . . the [P]olicy is not discriminatory on its face, plaintiff may nonetheless assert a disparate impact theory of recovery."2

Lourdes contends the court properly denied plaintiff's motion because the proposed amended complaint failed to establish a prima facie claim of religious discrimination under the LAD and the amendment was therefore futile. In support, it argues plaintiff's proposed religious discrimination claim was unsustainable as a matter of law because it contradicts the LAD's requirement that employers make reasonable accommodations for employees' religious beliefs. Lourdes also argues plaintiff's reliance upon Valent is inapposite, as that was not an employment discrimination case and our "analysis was explicitly limited to the constitutional propriety of a government agency's endorsement of an employer's religion-based policy exemption[,] not the lawfulness of an employer providing its employees with [such an] exemption."

We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm substantially for the reasons stated by Judge Pugliese in his thoughtful oral decision.

Our review is limited. We review a trial court's determination on a motion to amend a pleading for a "clear abuse of discretion." Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J.Super. 494, 506 (App. Div. 2003) (quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)). "[T]he granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998).

After a defendant files an answer to a compliant, a plaintiff "may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." R. 4:9-1. "`[M]otions for leave to amend [are to] be granted liberally,' even if the ultimate merits of the amendment are uncertain." Prime Accounting Dep't v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (alteration in original) (quoting Kernan, supra, 154 N.J. at 456).

"One exception to that rule arises when the amendment would be `futile,' because `the amended claim will nonetheless fail and, hence, allowing the amendment would be a useless endeavor.'" Ibid. (quoting Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)). "Thus, while motions for leave to amend are to be determined `without consideration of the ultimate merits of the amendment,' those determinations must be made `in light of the factual situation existing at the time each motion is made.'" Notte, supra, 185 N.J. at 501 (quoting Interchange State Bank v. Rinaldi, 303 N.J.Super. 239, 256 (App. Div. 1997)). "[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. . . . [T]here is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted." Prime Accounting, supra, 212 N.J. at 511 (alterations in original) (quoting Notte, supra, 185 N.J. at 501).

Where a complaint is being amended to include a LAD claim, the proposed complaint must set forth allegations establishing a violation. The LAD prohibits employers from "discharg[ing]" or "discriminat[ing] against [an employee] in compensation or in terms, conditions or privileges of employment" due to, among other reasons the employee's religion. N.J.S.A. 10:5-12(a). It further provides that it is unlawful for an employer

To establish a prima facie case for religious discrimination under the LAD, a plaintiff must demonstrate that "(1) [she] belongs to a protected class; (2) she was performing her job at a level that met her employer's legitimate expectations; (3) she suffered an 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).

Applying the necessary elements to a LAD religious discrimination claim to plaintiff's proposed amended complaint, we conclude the judge properly denied her motion as futile because her allegations failed to state a claim under the act. Plaintiff's proposed amended complaint did not allege the "key element," Hedges, supra, 399 N.J. Super. at 288, that she was a member of a protected class — whether by her association with a particular religion or with no religion at all — and did not allege that the adverse employment action taken against her was because of her membership in a protected class. Without any allegation that she was a member of a protected class based upon her race, color, religion, sex, or national origin, plaintiff's LAD discrimination claim was futile.3

The pleading also did not allege that members of only certain religions were granted religious exemptions while members of other religions were denied the same relief. Nor did she allege that she had a religious objection to being vaccinated, or requested a religious accommodation and was denied same.

Absent any of these allegations, and in light of the LAD's requirement that employers offer reasonable accommodations for their employees' religious beliefs, we conclude that plaintiff could not establish a prima facie case under the LAD and, accordingly, that the judge properly denied her motion.

Affirmed.