On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-990-01.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiff D.G., guardian ad litem for her son J.G., appeals from an order entered on March 17, 2006 denying her motion for a new trial or judgment notwithstanding the verdict (JNOV). After careful consideration of plaintiff's arguments, we affirm.
J.G. has suffered from cerebral palsy since infancy. In June 2000, at the end of his fifth grade year, J.G.'s mother, D.G., filed a due process petition with the Department of Education (DOE), claiming that the North Plainfield Board of Education (Board) failed to comply with J.G.'s individual education plan (IEP). Subsequent to filing the administrative action, plaintiff filed a complaint in the Law Division against the Board and several individual employees, claiming that J.G. was a victim of discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, the Americans With Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, and the Federal Civil Rights Act, 42 U.S.C.A. §§ 1983 and 1985.
When plaintiff filed an interlocutory appeal from the administrative action in the Law Division, the then-presiding judge of the Civil Part in Somerset County consolidated the administrative and Law Division actions "for administrative purposes pending further order of the [c]court." The consolidation order stayed both actions for ninety days pending the parties' pursuing voluntary mediation. The mediation was unsuccessful and the cases were subsequently consolidated "for all purposes including discovery and trial."
The Law Division matter was tried over twenty days in November and December 2005. At the close of plaintiff's case, the trial judge dismissed one count of the complaint, which alleged intentional infliction of emotional distress. The jury decided in favor of defendants on all remaining counts.
The facts relevant to this appeal are as follows. J.G. was classified as orthopedically impaired and enrolled in Stony Brook School from kindergarten through fifth grade. The boy's grandmother, R.G., served as his in-classroom aide for the first five years of his education. A number of accommodations were made for J.G., who was wheelchair-bound, to attend classes in the two-story building. R.G. was given a key to the school elevator, a bathroom on the second floor was made handicap accessible, as was a bathroom in the nurse's office. Computers, special chairs, mats and hand-held recorders were purchased for the boy's use, and he was provided with a second set of school books to keep at home. J.G.'s teachers gave him modified assignments and extended test times. His class sizes were limited and he received preferential seating and stretch breaks.
Through the end of the third grade, J.G. received physical therapy, occupational therapy and speech therapy, plus adaptive physical education. Prior to fourth grade, however, plaintiff demanded that J.G. be provided with "conductive education," an all-encompassing therapy program, in lieu of his usual therapies, and threatened to file a due process petition if the Board did not accede to her request. The Board hired Erica Nagy, the conductive educator specified by plaintiff, and gave her permission to work with J.G. in his classrooms, the hallways, the gym and a small therapy room at the Stony Brook School. The Board also paid for and transported J.G. to a special summer camp run by Nagy beginning the summer prior to fifth grade and every year thereafter.
In the Spring of 1999, prior to J.G.'s fifth grade year at Stony Brook, plaintiff requested that the boy not be required to take his tests in the hallway, that he receive transportation to participate in band and chorus, that he be admitted into Stony Brook's ASK program, and that he be provided with a male in-classroom aide. The principal at Stony Brook, Antoinette Plewa, allowed J.G. to participate in the ASK program, an after-school homework program designed for underachieving children, even though he did not qualify because his grades were very good. Plaintiff further requested that the male aide be permitted to attend J.G.'s conductive education summer camp so that he would be appropriately trained when school began. The Board agreed to the summer training.
Ricardo Beckford was hired as J.G.'s aide. Beckford had some experience with cerebral palsy children and had worked as an aide in the district previously. He had vacation plans over the summer, however, and was unable to attend the camp. At the beginning of the next school year, the Board authorized Nagy to exceed her contract hours to train Beckford as an additional accommodation to plaintiff.
Initially, J.G. and Beckford got along well. After a period of time, however, J.G. complained to his mother that Beckford fell asleep in class, failed to get J.G. to the bathroom in time and failed to properly pack his school bag with his homework. J.G. also claimed that Beckford turned off the power wheelchair and yelled at him to the point where J.G. was afraid. Plaintiff contacted Principal Plewa, who spoke with Beckford and J.G.'s teachers regarding the boy's allegations.
Beckford acknowledged that he had a night job but denied falling asleep in class. He denied turning off the wheelchair but noted that he was sometimes forced to intervene because J.G. traveled too fast or crashed the chair. Beckford also acknowledged that J.G. wet himself about twice a week but explained that this occurred when the boy was socializing with friends and waited too long to use the bathroom. J.G.'s teachers denied seeing Beckford sleeping or signs of urine indicating that the boy had wet himself. After completing her investigation, Plewa concluded that most of J.G.'s allegations were unsubstantiated. She did, however, direct Beckford not to turn off the wheelchair unless the boy was in danger.
In November 1999, plaintiff and J.G. attended a meeting regarding J.G.'s allegations about Beckford. Plewa, Richard Greco, Director of Pupil Services, several of J.G.'s teachers and Jane Delaney, the Special Education Supervisor were at the meeting. When the meeting became contentious and J.G. began to cry, plaintiff wheeled him out of the room, ending the meeting. The relationship between J.G. and Beckford continued to deteriorate after the meeting and plaintiff filed a complaint with the Division of Youth and Family Services (DYFS), alleging that Beckford physically abused the child. After investigating the incident, DYFS found that the allegation of physical abuse was not substantiated. Notwithstanding the DYFS finding, the Board decided to hire a new aide for J.G. and hired Sharon Lonergran to work with the boy for the remainder of the school year.
During the same school year, J.G. complained to plaintiff that he was being put in the hallway for every test by all of his teachers in violation of his IEP, which provided that Stony Brook would enable J.G. to take eighty percent of his tests on the computer. Ron Fisher, the Board's Director of Technology and Information Services, testified that he purchased a special laptop for J.G.'s exclusive use, but was unable to obtain the software that would permit J.G. to type answers into previously computer-scanned tests. Moreover, J.G.'s teachers adamantly denied that they put the boy in the hallway for his tests, although his math and computer teacher acknowledged having a policy of giving all students makeup tests in the hallway because there were no extra classrooms in the school.
Plaintiff continued to make numerous complaints throughout the school year, claiming that Greco responded with irritation, telling her that the boy should have been "put away" in a cerebral palsy school years ago. Greco denied ever making such a statement. Plaintiff removed J.G. from school on June 14, 2000, when she filed the due process petition with the DOE. Although the boy missed a total of about eighty school days during the fifth grade, Plewa ensured that his final marks were based upon the work he had completed and permitted him to graduate to the sixth grade.
In her due process petition, plaintiff complained that there was no appropriate sixth grade placement for J.G. The only sixth grade program in North Plainfield for the 1999-2000 term was in the two-story Somerset School, which was more than 100 years old, overcrowded, offered only a single bathroom on each floor and contained just one stairwell-mounted fold-out lift to enable a disabled student to get from the first to the second floor. In her due process petition, plaintiff sought to have the Board "reconfigure the school district" so that the seventh graders could attend the Somerset School while J.G. and his sixth grade classmates could use the more accessible middle school. Greco, the Director of Pupil Services, stated that plaintiff's proposal was not feasible because it would have affected over 600 children. He did, however, offer to pay J.G.'s tuition to an out-of-district school of plaintiff's choice. J.G. applied to one out-of-district school, but was not accepted.
On December 20, 1999, plaintiff toured the Somerset School with Principal Judy Grady. After the tour, plaintiff requested that the lift be replaced with one large enough to accommodate J.G.'s power wheelchair and that the second floor girls' bathroom be redesignated as a boys' bathroom and made handicap accessible.
After plaintiff filed her due process petition in June 2000, the Board's counsel had repeated discussions with plaintiff's counsel regarding J.G.'s sixth grade placement.
Plaintiff continued to maintain, through her counsel, that the Somerset School was not an appropriate placement for J.G. because it was physically inaccessible. During the summer of 2000, however, plaintiff was unavailable for discussions to resolve the problems because she took J.G. on a month-long vacation.
A meeting was scheduled for September 18, 2000, the day J.G. was expected to return to school. To prepare for the sixth grade year, Greco hired Constance Fenner to provide twenty hours of home instruction to J.G. Acceding to plaintiff's request, Greco also hired Linda Ciufo, a family friend who was residing with plaintiff and J.G., to serve as J.G.'s in-classroom aide. In the event plaintiff elected to have J.G. attend the Somerset School, Greco also hired Sherry Muenz to serve as an in-class support teacher and renewed Nagy's contract for continued conductive education.
On Friday, September 15, 2000, three days before J.G. was to begin the sixth grade, the Board's counsel and plaintiff's counsel had a conference call with the Administrative Law Judge (ALJ) hearing plaintiff's due process petition. At the direction of the ALJ, the Board's counsel sent a letter to plaintiff's counsel setting forth the available options for the sixth grade year. The letter read as follows:
Pursuant to our discussions, we have tentatively scheduled a continuation of the IEP meeting for Monday, September 18, 2000 at 10:00 a.m. As you are aware, your client's unavailability in Poland has made it difficult to resolve the outstanding issues regarding [J.G.'s] placement for the school year.
With respect to school on Monday, the District has determined that Somerset School is not the least restrictive environment for [J.G.] due to the inadequacy and inaccessibility of the facility. The District has arranged for home instruction to be provided for [J.G.] for ten hours per week. The home instructor, Constance Fenner, has [J.G.'s] academic materials in her possession and will be contacting your client on Saturday to make arrangements for the delivery of same and the scheduling of his home instruction. Should [J.G.] wish to participate in extra curricular activities during home instruction, please be advised that the District will provide transportation.
The last agreed-upon IEP provides for placement at the [Stonybrook] School. [J.G.] may attend school at Stonybrook. There is a special education class including fifth and sixth graders which is appropriate for [J.G.] pending the resolution of the outstanding issues.
The District has employed Linda Ciufo, pursuant to your client's request, to serve as [J.G.'s] school aide. However, Ms. Ciufo's start date will be resolved . . . [when] the outstanding issues regarding the least restrictive environment for [J.G.] are resolved.
Please contact me today regarding your intentions with respect to [J.G.] accepting home instruction or attending [Stonybrook].
Plaintiff's counsel did not raise any objections to the letter and merely stated that she would be at the meeting on September 18, 2000.
Plaintiff, however, had arranged for a large rally in support of J.G. on the morning of September 18, 2000 in front of the Somerset School. During the rally, plaintiff and J.G. were admitted to the building and plaintiff proceeded to lie down on the floor of the principal's office while shouting obscenities at various Board members who had gathered for the IEP meeting. The police had to be called to disperse the crowd and calm the situation.
No formal IEP was adopted but J.G. began attending the Somerset School for the sixth grade, using a manual wheelchair to fit into the existing lift. A schedule was prepared by which J.G. spent most of his day on the second floor, minimizing his need to use the lift. Although the boy only had access to the girls' bathroom on the second floor, J.G.'s aides tied a no admittance ribbon to the door to ensure his privacy when he was using the facility.
In October 2000, J.G. complained to plaintiff that he was being stalked and watched by Greco, the Pupil Services Director, and Delaney, the Special Education Supervisor. According to plaintiff, J.G. was so hysterical she had to keep him home from school on October 20, 2000. Greco explained that he observed J.G. on two occasions because Nagy, J.G.'s conductive educator, had not submitted requested reports detailing the boy's current condition in compliance with the requirement that the district re-evaluate all classified students every three years. Greco testified that he simply observed the boy and Ciufo operating the lift on one day and that he returned the next day to sit in on two classes. Delaney observed J.G. on one occasion at Muenz's request but left the room quickly because she saw that the boy was becoming anxious.
In December 2000, J.G. underwent hip surgery requiring a two-month recovery period, during which the Board provided home tutoring services. When the boy returned to the hospital for an additional three-week period in January 2001, the Board provided for in-hospital tutoring.
On February 26, 2001, J.G. returned to school and almost immediately began complaining about Ciufo -- the aide plaintiff specified be hired for J.G. -- claiming that she was cold and cruel, yelled at him on several occasions and used obscenities. Ciufo denied the incidents and no one was able to corroborate J.G.'s claims. Thereafter, J.G. attended school only three days a week when Nagy was available and, finally, on April 5, 2001, plaintiff removed J.G. from school and he was home tutored for the remainder of the sixth grade.
In June 2001, plaintiff toured the North Plainfield Middle School in anticipation of J.G.'s seventh and eighth grade years. She was informed that the middle school and high school, which formed one large complex, would be under construction during J.G.'s entire seventh grade year. In order to limit J.G.'s need to use the lift, all of his classes were scheduled on the first floor and a first floor classroom was converted to a science room for him. Although plaintiff admitted that J.G. had good years in the seventh and eighth grades, she nonetheless complained that his computer needs were not met during those years. The evidence indicated, however, that J.G. was reevaluated as to his technology needs in the Fall of 2001 and the Board purchased a new laptop for him with a special expanded keyboard, a printer and a variety of specialized software. The Board also paid for many hours of computer training for J.G. and for a rental computer when the new laptop crashed.
In the ninth and tenth grades,*fn1 J.G. often complained that the lift broke. Douglas Boydston, the contractor used by the Board to repair the lift, testified that there had been problems with the lift, but his company was called promptly by the school and the repairs were made quickly. When the lift broke down in April 2004, it could not be repaired. In July 2004, however, the Board passed an emergency measure allowing for the purchase of a new lift.
J.G. continued to complain about the bathrooms, but the North Plainfield Construction Official and the architect who prepared the plans for renovation of the high school both testified that the bathrooms were ADA and code compliant. Even plaintiff's expert testified ...