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O.R. v. Kniewel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 17, 2010

O.R. O/B/O O.R. (A MINOR), PLAINTIFF-APPELLANT,
v.
VICTORIA KNIEWEL, GERRI HUNTER AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.
O.R. O/B/O O.R. (A MINOR), PLAINTIFF-APPELLANT,
v.
DONNA GIBBS-NINI, MARY ANN ISAACS, ARTHUR DOWNS, GERRI HUNTER AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.
ROTIMI OWOH, PLAINTIFF-APPELLANT,
v.
WEST WINDSOR PLAINSBORO REGIONAL SCHOOL DISTRICT-CUSTODIAN OF RECORDS, DEFENDANT-APPELLANT.
JOHN DOE, JR., A MINOR BY HIS PARENT AND GUARDIAN, JOHN DOE, SR. AND JOHN DOE, SR., INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
WEST WINDSOR PLAINSBORO REGIONAL SCHOOL DISTRICT, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-2293-07, L-2380-07, L-2686-06, L-2316-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2009

Before Judges Graves, Sabatino, and J. N. Harris.

These four back-to-back appeals--which we hereby consolidate for purposes of this opinion--were presented by interrelated plaintiffs. Three of the appeals implicate issues that involve the statutory and common law right of public access to records created by governmental actors. The fourth appeal involves alleged deprivations of a juvenile's civil rights. We affirm the Law Division's rulings in the four separate matters because we are unable to detect any legal error of consequence.

The central grievance presented by plaintiffs is found in the disparate-treatment complaint captioned John Doe, Jr. v. West Windsor Plainsboro Reg. School District (A-1263-08T1). That action was originally bottomed upon putative violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD); the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (NJCRA); and the Federal Civil Rights Act, 42 U.S.C.A. § 1983 (§ 1983).*fn1 The lawsuit sought remedies for race and ethnicity-based discrimination that was allegedly carried out against a thirteen-year-old middle school student--John*fn2 --by school authorities in 2004, following the discovery of a knife in John's possession while on school grounds.

The three spin-off complaints*fn3 --commenced pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), and the common law right of access to public records--were engendered by Requestor's ongoing attempts to supplement and cross-check the litigational discovery that was being developed in John's civil rights action. Although these complaints espouse broader purposes--for example, "[t]he public [has] a right to know whether the 'chief school administrator' and other administrators in the [West Windsor Plainsboro] School District are complying with the specific reporting requirements of N.J.A.C. 6A:16-5.3 and N.J.A.C. 6A:16-6.3 when disciplining Caucasian (White) students for possession of knive[s] on school property"--they are, at their cores, strategic means to augment the litigational discovery that seeks to further John's goal of vindication for his perceived ill-treatment.

Instead of focusing upon the discovery in the primary discrimination case and thereby engage in the natural process of evidence collection through interrogatories, document demands, requests for admissions, preservation of electronically stored information, and depositions, Requestor and John took a much different and more complicated path. The plaintiffs devoted scarce resources--including the most precious of all: time--to hunt for public records through the collateral process of OPRA requests and the common law right of access. Ultimately, these collateral efforts and limited use of the discovery process in the civil rights action failed to generate sufficient proofs to demonstrate a prima facie case of discrimination when a motion for summary judgment beckoned.

These are not the first appeals to reach this court with respect to John's interaction with government. In 2007, we rejected John's sixteen-point appeal relating to his adjudication of delinquency for committing an act, which if committed by an adult, would have constituted fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have while in or upon any school building, N.J.S.A. 2C:39-5(c)(2). In Re R.O., No. A-1540-05T3 (App. Div. June 13, 2007). In affirming the Family Part, we concluded that the trial court had not abused its discretion in denying defense counsel's request for broad-spectrum discovery relating to the alleged disparate treatment of students accused of weapons possession. Because John had not established a plausible basis for a claim of selective enforcement as part of the delinquency proceedings, he was neither permitted to obtain this extraordinary discovery nor entitled to a reversal of his adjudication of delinquency on such grounds.

During the last court term, we affirmed the denial of John's OPRA and common law right of access to public records claim that he pursued against the Plainsboro Police Department (PPD). In that action, John sought a judgment to compel the PPD to produce investigative reports, narrative documents, and complaints relating to other incidents of weapons possession reported by John's school district from 2000 through 2006. R.O. (A Minor) v. Plainsboro Police Dept., Custodian of Records, No. A-5906-07T2 (App. Div. June 17, 2009).*fn4 There, we held that the PPD records sought by John: (1) were properly classified as criminal investigatory records, which were exempt from production under OPRA, N.J.S.A. 47:1A-1.1, and (2) predominately contained juvenile records, which were therefore confidential and not subject to public inspection or copying pursuant to OPRA, N.J.A.C. 13:94-1.5(3).

John's father sought further remedies on his son's behalf from the Department of Education, which were twice unsuccessful.*fn5

As part of that process before the state administrative agency, the father's discovery practices were characterized by the Commissioner of Education as "very close to constituting 'overzealous, burdensome and harassing conduct,'" but did not rise to a level that warranted sanctions. The Administrative Law Judge who initially considered the matter described John's father's actions as that of a "discovery juggernaut."

After a full consideration of the copious and interconnected record before us, we are confident that the decisions rendered by the several judges in the Law Division who considered these issues were consistent with the applicable law and comport with New Jersey's high standards relating to the fair administration of justice.

I.

On March 3, 2004, John (then thirteen years old) was found in possession of a folding, lock-blade knife while attending the Community Middle School, which is under the auspices of defendant West Windsor Plainsboro Regional School District (the District).*fn6 As a result, John was suspended from school for ten days. In obedience to N.J.A.C. 6A:16-6.3 (requiring school administrators to report incidents involving deadly weapons unlawfully on school grounds to law enforcement authorities), the District alerted the PPD as to John's possession of a knife. Shortly thereafter, a one-count juvenile complaint was lodged against John, alleging delinquency.

After various procedural events in the Family Part, the juvenile complaint was amended. When the matter was eventually tried in 2005, John was adjudicated delinquent and sentenced accordingly. As noted earlier, we affirmed all aspects of the Family Part's treatment of John's case. Among John's allegations on appeal was the claim that the Family Part erroneously denied his request for the desired expansive discovery materials in connection with his defense of selective enforcement. We rejected that contention, and further found that the defense had failed to establish a "colorable case of selective enforcement to warrant reversal of [John's] adjudication."

On February 8, 2005, John's father began the pursuit of two administrative appeals with the Department of Education that challenged, and sought to undo, John's ten-day suspension. While the petitions were unsuccessful in reversing the suspension, the process unearthed additional discovery materials that John and his father believed supported their claims of selective enforcement and disparate treatment. The Commissioner of Education issued final decisions dismissing the petitions on March 17 and June 28, 2006.

Although the record is incomplete in this one respect, it appears that John (or by another on his behalf) filed some type of complaint or application for various remedies with the New Jersey Division of Civil Rights (the Division), but then abandoned the claim. It is unclear for how long that matter remained with the Division or the extent of any further discovery that was derived therefrom.

What is apparent from the record, however, is that John obtained sizeable caches of information from extra-judicial processes, including statistics related to sixty-two incidents of weapons offenses at twenty-one different elementary and secondary schools spanning the course of seven years. While none of these data involved John's school, they were sufficient, nevertheless, to impel the Middlesex County Prosecutor's Office to convene a task force to review the information, but no selective enforcement was found to exist.

On September 7, 2006, John filed his five-count civil rights complaint against the District. Notably, the complaint did not seek remedies against any individual school administrator. An answer, dated October 12, 2006, was filed by the District, which denied all of the allegations of discrimination.

The centerpiece of John's disparate treatment grievances is contained in the following paragraphs of the complaint:

3. [] John Doe belongs to a protected class in that he is a dark skin Black and of Nigerian ancestry.

7. Defendant [District] discriminated against [] John Doe, in that he was suspended from school for ten days while a similarly situated student whose mother is Caucasian was suspended from school for less than 10 days.

In an amended complaint filed six months after the first, John expanded these allegations to include:

7(a). Defendant discriminated against [] John Doe, in that he was referred to the police for possession of [a] knife on school property while a similarly situated student whose mother is Caucasian was not referred to the police for threatening to stab another student with a scissors.

Rather than immediately pursue conventional methods of discovery in the civil rights action, Requestor--on John's behalf--began ancillary discovery using OPRA. What followed were a series of requests for public records and the commencement of numerous actions in the Law Division pursuant to OPRA and common law right of access.

The first such collateral endeavor was Requestor's two-count complaint against the District's custodian of records, filed on October 17, 2006. This complaint indicated that a few weeks earlier (but after the filing of the civil rights action) Requestor had sought "statistical information pursuant to OPRA about incidents of violence in [the District]." Believing there to be a discrepancy between the District's response to this OPRA request and information Requestor had previously received from the PPD, Requestor also "requested the name of the police department that was notified [by the District] when the incidents of weapons possession occurred as required by N.J.A.C. 6A:16-6.3(b)." Requestor further "asked for the number and racial composition of the students who were reported or referred to law enforcement for possession of [a] weapon on school grounds and the nature of the weapon involved in each incident." Dissatisfied with the District's responses, Requestor filed the first complaint in the Law Division.

Meanwhile, discovery in the civil rights action was underway, helped along by several motions to enforce discovery obligations that were ultimately resolved by Judge Wilbur H. Mathesius. On February 28, 2007, an order was entered directing the District to provide copies of all of its redacted*fn7 internal disciplinary records for the 2002-2003, 2003-2004, and 2005-2006 school years. Notwithstanding John's claim to the contrary, this order appears to have been complied by March 2007, together with printouts of computer screens (screenshots) provided by the District showing electronically stored information relating to weapons incidents at the Community Middle School for the aforementioned school years.

After developing other leads, Requestor again sought extra-litigational discovery. Utilizing OPRA once more, he requested more records that he believed the District maintained relating to its obligation to report weapons incidents to law enforcement authorities. When the response of the District was not what Requestor hoped for, he filed yet another OPRA and common law right of access complaint in the Law Division against the District, superintendent of schools Victoria Kniewel, and custodian of the District's records, Gerri Hutner*fn8 on September 11, 2007. Requestor sought the names of the police officers and police departments who were contacted by the District when forty-seven specifically-identified weapons-related incidents occurred between January 31, 2001 and April 24, 2007, plus an additional "six (6) weapons possession incidents [] reported during the 2000/2001 school year." As for OPRA, the complaint averred:

8. The public ha[s] a right to know whether the "chief school administrator" and other administrators in the [West Windsor Plainsboro] School District are complying with the specific reporting requirements of N.J.A.C. 6A:16.5.3 and N.J.A.C. 6A:16-6.3 when disciplining Caucasian (White) students for possession of knife on school property.

Requestor further asserted that the information sought also fell under the common law right of access to public records for the following stated purpose:

3. Plaintiff also has a common law right of interest to use the records to show that [West Windsor Plainsboro] school officials and their lawyers (Methfessel and Werbel) may have filed an Answer in court that the school officials knew or should have known contained material INACCURATE information. [(Emphasis in original.)]

Less than two weeks later, on September 20, 2007, Requestor filed another OPRA and common law right of access complaint in the Law Division against the District and Hutner, but added two school principals and one assistant principal as defendants. In this third action, Requestor sought copies of "incident reports" relating to "the bullet incident," an alleged disciplinary matter involving a Millstone River School student's sale of bullets to other students. Requestor next sought several "incident details and discipline reports" for events that allegedly occurred at the District's Community Middle School on various dates in years 2004, 2005, and 2006. Finally, Requestor sought "a redacted copy of the form used to refer a student with ID #[] to a child study team."

Requestor's stated purpose in the First Count for obtaining these documents was as follows:

11. The public has a right to know whether West Windsor Plainsboro School District intentionally UNDER REPORTED the total number of violence and weapon possession incidents that occurred in the school district to the Department of Education. [(Emphasis in original.)]

In the Second Count, Requestor asserted:

5. Plaintiff also has a common law right of interest to use some of the records to show that the following interrogatory answers given by Mrs. Donna Gibbs-Nini (assistant principal of [West Windsor Plainsboro] Community Middle School) are simply inaccurate[.]

As is evident from the foregoing, the parties were engaged in litigation on two major fronts. In the first--the civil rights action--John and the District sparred conventionally during the discovery phase, each side attempting to assemble and exchange the relevant discovery materials. On the other front, Requestor and the District litigated through three separate, but interrelated, actions pursuant to OPRA and common law right of access to ferret out additional data that might be used to bolster John's civil rights claims.

The three OPRA and common law right of access cases were the first to reach resolution. On May 5, 2008, in a series of rulings, Judge Linda R. Feinberg began by refining Requestor's allegations concerning the District's document delinquency, thereby reducing the inflated number of claimed statutory and common law violations.

Among her conclusions, Judge Feinberg determined that the District was not obliged by the Federal Educational Rights and Privacy Act, 20 U.S.C.A. 1232(g) (FERPA); N.J.S.A. 18A:36-19; or their implementing regulations to refuse Requestor's OPRA demand simply because it would be turning over redacted documents after removing all student identifying information. Accordingly, she required the District to affirmatively indicate whether it had been fully compliant with Requestor's demand for all Violence, Vandalism and Substance Abuse Incident Reports (VVSA Reports) (in accordance with N.J.S.A. 18A:17-46 and N.J.A.C. 6A:16-5.3) for the period 2001 through 2006.*fn9

Thereafter, Judge Feinberg dismissed all of Requestor's remaining claims for the allegedly withheld VVSA Reports. She determined, after carefully reviewing the record presented to her, that Requestor had received voluminous data from the District, including thousands of documents that, arguably, Requestor had no right to obtain. Rejecting Requestor's demand for an evidentiary hearing as to the truthfulness of the District's representatives who asserted that diligent searches were conducted and that the District's document production was complete, the judge determined that the allegedly missing 249 VVSA Reports did not in fact exist. After determining that there were no genuine disputes about the District's substantial compliance, Judge Feinberg determined that a hearing pursuant to Rule 4:67-5 was unnecessary, and dismissed Requestor's complaint.

Judge Feinberg also addressed and rejected Requestor's persistent demands for documents relating to specific incidents of misconduct by a specific student, a form showing the date that the student was referred to the Child Study Team, and a written authorization by the child's parent referring the child to the Child Study Team. The judge also considered the level of compliance of the District with her order requiring the District to provide a variety of public records to Requestor, including:

1. disciplinary reports of Millstone River School relating to "the bullet incidents."

2. incident reports of Millstone River School relating to "the bullet incidents."

3. copies of all disciplinary and incident reports relating to weapons' possession and violence at the Millstone River School from 2000 through 2007.

4. copies of incident details and discipline reports relating to an incident that occurred on June 13, 2005.

5. copies of incident details and discipline reports relating to three other identified incidents.

The court determined that there was a "sufficient response under the OPRA" and that the District had "complied with plaintiff's common law request for documents." It held that to the extent Requestor sought the District's performance of research, analysis of records, and report of "incident details," these acts were barred by OPRA's allowance for records, not requests for information. Accordingly, the court dismissed these aspects of Requestor's claims.

Finally, Judge Feinberg determined that Requestor's OPRA and common law access claims (1) to obtain from the District the names of police departments notified of weapons possession incidents and (2) to identify the names of police officers who informed the District whether complaints were lodged against students involved in specific incidents were fully satisfied and, therefore, moot. The trial court was unable to discern any remaining factual dispute after concluding that the District had not withheld documents or that more documents were still available. When Requestor moved for reconsideration, Judge Feinberg amplified her decision by noting that Requestor's demands were essentially insisting that the District perform detailed research, analysis, and identification of data that is not countenanced by OPRA or the common law right of access.

The documentary clash between the District and Requestor was completed by July 11, 2008, when the last of the orders dismissing Requestor's complaints was entered by the court. On the other hand, it took another month--into August 2008--for John's civil rights complaint to be dismissed through defendant's motion for summary judgment.

Judge Thomas W. Sumners, Jr. found that John had failed to demonstrate the existence of a genuine issue of material fact on his discrimination claims, thereby failing to prove a prima facie case on the disparate treatment allegations. Judge Sumners included these findings as part of his determination that the discovery period in the civil rights action had expired and that nothing warranted reopening that phase of the litigation.

Upon commencement in September 2006, John's disparate-treatment case was answered by the District in October of that year. More than one year later, the parties were advised by the Law Division's Civil Case Management Office that the discovery period was to expire on January 9, 2008, unless extended pursuant to Rule 4:24-1(c). Thus, basic calendar arithmetic yielded the prescribed 450 days of discovery for this Track III case. This math, of course, did not take into account all of the extra-litigational and ancillary discovery opportunities that John had previously exploited with the assistance of Requestor. Our review of the record confirms that John and Requestor utilized both the legislatively-sanctioned OPRA process and the judicially-approved discovery process to full advantage. Their claims of stonewalling, deception, materially incomplete production of relevant data, and dissembling by the attorney for defendant were found to be without merit.

Less than one week after the civil rights action discovery period expired, and without the benefit of a motion to extend discovery, John's attorney wrote the following to the District's attorney:

In light of the documents you sent us on December 31, 2007 in connection with the parallel OPRA litigation, we are now ready to start deposing witnesses in connection with the above referenced discrimination case. We have divided the witnesses that we plan to depose into five (5) small groups.

The witnesses in these groups were comprised of sixteen named individuals, in addition to all "[b]lack teachers and administrators, if any," employed by the District, all guidance counselors at the middle and high schools in the District, and all social workers at the middle and high schools in the District. Moreover, John's attorney sought to depose several additional "personnel or staff" of the District who were responsible for the preparation of certain VVSA Reports, who prepared and gave certain CD-ROMs of discovery documents to defense counsel, and who also provided printouts of specific computerized disciplinary records to defense counsel.

The District's attorney responded to John's extensive and belated discovery responses by refusing to participate:

In response to your letter of January 15th, discovery closed on January 8, 2008. Therefore, we will not be responding to any new discovery demands.

In response, John then filed a motion to extend discovery 120 days. This motion was denied several months later by Judge Sumners on August 15, 2008, who found that John had clearly failed to demonstrate the existence of exceptional circumstances to warrant a reopening and extension of the discovery period. On this same date, Judge Sumners also granted the District's motion for summary judgment and dismissed John's complaint with prejudice. Following an unsuccessful motion for reconsideration, this appeal ensued from Judge Sumners' combined order.

II.

On appeal, John and Requestor raise the following issues:

POINT I

IT WAS AN ERROR TO DISMISS THE COMPLAINT BECAUSE THE REQUESTED RECORDS ARE PUBLIC RECORDS SUBJECT TO DISCLOSURE UNDER OPRA AND THE COMMON LAW OF ACCESS.

POINT II

APPELLANT HAS A COMMON LAW RIGHT OF INTEREST TO USE THE RECORDS TO SHOW THAT THE SCHOOL DISTRICT (MS. GERRI HUTNER) MAY HAVE COMMITTED PERJURY. APPELLANT ALSO HAS A CONSTITUTIONAL RIGHT TO USE THE RECORDS TO DETERMINE WHETHER SIMILARLY SITUATED CAUCASIAN STUDENTS WERE REFERRED TO POLICE FOR POSSESSION OF "OTHER WEAPONS" TO INCLUDE KNIFE ON SCHOOL PROPERTY. THEREFORE, ANY PRIVACY CONCERN SHOULD BE ADDRESSED BY REDACTION AND OR A PROTECTIVE ORDER.

POINT III

THE SCHOOL DISTRICT DOES NOT HAVE TO CONDUCT RESEARCH IN ORDER TO COMPLY WITH APPELLANT'S REQUEST BECAUSE APPELLANT FURNISHED THE DISTRICT WITH SPECIFIC INCIDENT NUMBERS, SPECIFIC INCIDENT DATES, AND IN MOST CASES WITH SPECIFIC STUDENT IDENTIFICATION NUMBERS RELATING TO THE REQUESTED INCIDENTS.

POINT IV

THE COURT ERRED IN DISMISSING THE CASE WITHOUT MAKING A DOCUMENT-TO-DOCUMENT FINDING WHETHER THE SCHOOL DISTRICT ACTUALLY FURNISHED APPELLANT WITH SPECIFIC RECORDS CONTAINING THE NAMES OF THE POLICE DEPARTMENTS THAT WERE NOTIFIED WHEN EACH OF THE LISTED WEAPON INCIDENTS OCCURRED IN THE DISTRICT.

POINT V

A PARTY MAY NOT ABUSE PRIVILEGE BY ASSERTING [A] CLAIM OR DEFENSE AND THEN REFUSING TO PROVIDE INFORMATION/DOCUMENT UNDERLYING THAT CLAIM OR DEFENSE BASED ON PRIVILEGE.

POINT VI

THE COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE THERE IS MATERIAL ISSUE IN DISPUTE. ALSO, SUMMARY JUDGMENT BASED ON CERTIFICATION PREPARED BY MS. HUTNER WAS AN ERROR BECAUSE OF POSSIBLE PERJURY AND OTHER CREDIBILITY ISSUES SURROUNDING HER PRIOR CERTIFIED ANSWERS TO INTERROGATORIES. THEREFORE, APPELLANT WAS ENTITLED TO A HEARING PURSUANT TO RULE 4:67-5.

A-5509-07T1

POINT I

HAVING CONCLUDED IN THE OPINION DATED MAY 5, 2008, THAT REDACTED STUDENT RECORDS ARE PUBLIC RECORDS AND ORDERING THE RELEASE OF SOME REDACTED STUDENT RECORDS TO APPELLANT, THE COURT ERRED IN DENYING APPELLANT ACCESS TO REDACTED RECORDS RELATING TO THE STUDENT WITH IDENTIFICATION NUMBER []. REDACTION AND/OR [A] PROTECTIVE ORDER WAS SUFFICIENT TO PROTECT THE PRIVACY INTEREST OF THE STUDENT WITH IDENTIFICATION NUMBER [].

POINT II

IT WAS AN ERROR FOR THE COURT TO DENY APPELLANT ACCESS TO RECORDS RELATING TO THE STUDENT WITH IDENTIFICATION NUMBER [] ON THE GROUNDS OF CONFIDENTIALITY SINCE BOTH THE STUDENT'S MOTHER AND THE SCHOOL DISTRICT HAD ALREADY MADE THE IDENTITY OF THE SAID STUDENT KNOWN TO MR. OWOH.

POINT III

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION IN LIGHT OF PARENTAL CONSENT TO RELEASE THE DOCUMENTS TO MR. OWOH. THE STUDENT'S MOTHER ASKED THE COURT TO RELEASE ALL OF THE REQUESTED DOCUMENTS RELATING TO HER SON TO MR. OWOH. THE STUDENT'S MOTHER ALSO INFORMED THE COURT THAT HER SON IS NOT A SPECIAL EDUCATION STUDENT CONTRARY TO SUGGESTION MADE IN COURT BY MR. HARRISON DURING ORAL ARGUMENT.

POINT IV

NEITHER THE AVAILABILITY OF THE DOCUMENTS FROM OTHER SOURCES, THE COST OF REPRODUCING THOSE DOCUMENTS, OR THE INCONVENIENCE TO DEFENDANT MAY BE CONSIDERED IN THE BALANCING TEST.

POINT V

A PARTY MAY NOT ABUSE PRIVILEGE BY ASSERTING CLAIM OR DEFENSE AND THEN REFUSING TO PROVIDE INFORMATION/DOCUMENT UNDERLYING THAT CLAIM OR DEFENSE BASED ON PRIVILEGE.

POINT VI

THE SCHOOL DISTRICT DOES NOT HAVE TO CONDUCT RESEARCH OR CREATE NEW DOCUMENTS IN ORDER TO COMPLY WITH APPELLANT'S REQUEST FOR DISCIPLINE REPORTS AND INCIDENT DETAILS RELATING TO THE STUDENT WITH IDENTIFICATION NUMBER [] AND THE SIX STUDENTS INVOLVED IN THE BULLET INCIDENT THAT OCCURRED AT THE MILLSTONE RIVER SCHOOL.

POINT VII

THE COURT ERRED IN DISMISSING THE CASE WITHOUT MAKING A DOCUMENT-TO-DOCUMENT FINDING WHETHER THE SCHOOL DISTRICT ACTUALLY FURNISHED APPELLANT WITH INCIDENT DETAILS RELATING TO THE STUDENTS INVOLVED IN THE BULLET INCIDENT.

POINT VIII

THE COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE THERE IS MATERIAL ISSUE IN DISPUTE. APPELLANT WAS ENTITLED TO A HEARING PURSUANT TO RULE 4:67-5.

A-5583-07T2

POINT I

HAVING CONCLUDED AFTER NINETEEN (19) MONTHS OF OPRA LITIGATION THAT REDACTED COPIES OF VVSA FORMS ARE PUBLIC RECORDS SUBJECT TO DISCLOSURE, THE COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A RULE 4:67-5 HEARING IN LIGHT OF THE CREDIBILITY ISSUES RAISED BY THE NINETEEN (19) MONTHS THE SCHOOL DISTRICT AND THEIR LAWYERS SPENT CLAIMING THAT THE VVSA FORMS DID NOT EXIST. ALSO, IT IS NOT PALPABLY CLEAR WHY THE DISTRICT COULD NOT RELEASE VVSA FORMS RELATING TO SPECIFIC WEAPON INCIDENTS INVOLVING WHITE STUDENTS.

POINT II

AFTER [NINETEEN] MONTHS OF OPRA LITIGATION, IT IS FUNDAMENTALLY UNFAIR AND A DENIAL OF DUE PROCESS TO ESSENTIALLY FORCE APPELLANT TO ACCEPT IN 2008 THE "WORDS" OF OPPOSING COUNSEL AND CUSTODIAN OF RECORDS WHO FOR 394 DAYS CLAIMED, ALBEIT FALSELY, THAT VVSA FORMS REQUESTED BY APPELLANT IN 2006 DID NOT EXIST.

POINT III

A PARTY MAY NOT ABUSE PRIVILEGE BY ASSERTING [A] CLAIM OR DEFENSE AND THEN REFUSING TO PROVIDE INFORMATION/DOCUMENT UNDERLYING THE CLAIM OR DEFENSE BASED ON PRIVILEGE. THE SELECTIVE RELEASE OF VVSA FORMS RELATING TO MINORITY STUDENTS WITHOUT CORRESPONDING RELEASE OF VVSA FORMS RELATING TO WHITE STUDENTS INVOLVED IN SPECIFICALLY LISTED WEAPON INCIDENTS MAY RESULT IN TOTAL DISABLING AND DISTORTION OF THE TRUTH.

POINT IV

THE SCHOOL DISTRICT DOES NOT HAVE TO CONDUCT RESEARCH OR CREATE NEW DOCUMENTS IN ORDER TO COMPLY WITH APPELLANT'S REQUEST.

POINT V

THE COURT ERRED IN DISMISSING THE CASE WITHOUT MAKING A DOCUMENT-TO-DOCUMENT FINDING WHETHER THE SCHOOL DISTRICT ACTUALLY FURNISHED APPELLANT WITH VVSA FORMS RELATING TO THE [FIFTY-EIGHT] SPECIFICALLY LISTED INCIDENTS OF WEAPON POSSESSION THAT OCCURRED IN THE SCHOOL DISTRICT.

A-1263-08T1

POINT I

THERE IS SUFFICIENT COMPETENT EVIDENCE FOR APPELLANT TO ESTABLISH A PRIMA FACIE CASE.

POINT II

THERE IS COMPETENT EVIDENCE FOR PLAINTIFF TO REBUT THE SPECIAL EDUCATION REASONS ADVANCED BY MR. HARRISON IN COURT ON FEBRUARY 16, 2007, FOR THE DISPARATE DISCIPLINE.

POINT III

THERE IS COMPETENT EVIDENCE FOR APPELLANT TO ALSO REBUT THE "MANDATORY 10 DAYS SUSPENSION POLICY" ADVANCED BY MR. HARRISON IN COURT ON FEBRUARY 16, 2007.

POINT IV

IT WAS AN ERROR TO GRANT SUMMARY JUDGMENT IN LIGHT OF POSSIBLE PERJURY IN THE CASE. THE INCIDENT DETAILS THE SCHOOL DISTRICT FILED WITH THE DEPARTMENT OF EDUCATION AND VVSA FORMS PREPARED BY THE PRINCIPAL OF GROVER MIDDLE SCHOOL SHOWING WEAPON INCIDENTS THAT WERE NOT REPORTED TO POLICE RAISE SERIOUS POSSIBILITY THAT MS. HUTNER MAY HAVE COMMITTED PERJURY WHEN SHE CLAIMED IN A CERTIFIED DISCOVERY RESPONSE THAT ALL INCIDENTS OF WEAPON POSSESSION WERE REPORTED TO POLICE BY THE SCHOOL DISTRICT. THE INCONSISTENCY IS A MATERIAL FACT DISPUTE THAT MUST BE RESOLVED BY THE TRIER OF FACT.

POINT V

IT WAS AN ERROR TO GRANT SUMMARY JUDGMENT IN LIGHT OF APPEALS PENDING BEFORE THE APPELLATE DIVISION TO COMPEL THE SCHOOL DISTRICT PURSUANT TO OPRA AND COMMON LAW RIGHT OF ACCESS TO FURNISH APPELLANT WITH RECORDS/DOCUMENTS SHOWING THE NAMES OF THE POLICE DEPARTMENTS THAT WERE NOTIFIED WHEN ABOUT [FIFTY-EIGHT] SPECIFICALLY LISTED WEAPON INCIDENTS OCCURRED IN THE SCHOOL DISTRICT.

POINT VI

THERE ARE MATERIAL INCONSISTENCIES BETWEEN THE DATA AND REPORTS THE SCHOOL DISTRICT FILED WITH THE NEW JERSEY DEPARTMENT OF EDUCATION PURSUANT TO N.J.A.C 6A:16-5.3 AND INFORMATION CONTAINED IN CERTIFICATIONS FILED IN COURT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT. THE INCONSISTENCIES ARE MATERIAL FACTUAL DISPUTES THAT SHOULD BE RESOLVED BY THE TRIER OF FACT. CONSEQUENTLY, THE TRIAL COURT'S DISMISSAL OF PLAINTIFF'S LAD CLAIM USURPED THE JURY'S FUNCTION.

POINT VII

UNLIKE THE DEFENDANTS IN SHOWBOAT HOTEL & CASINO AND KAY JEWELERS, THE SCHOOL DISTRICT IN THIS CASE DID NOT PRESENT ANY EVIDENCE OF ANY CAUCASIAN STUDENT(S) WHO WAS/WERE SUSPENDED FROM SCHOOL FOR [TEN] DAYS AND REPORTED TO POLICE FOR POSSESSION OF KNIFE ON SCHOOL PROPERTY FROM 2002/2002 THROUGH 2006/2007 SCHOOL YEARS. JOHN DOE'S AMENDED COMPLAINT WAS FILED ON MARCH 7, 2007.

POINT VIII

IT WAS AN ERROR TO DENY APPELLANT'S MOTION TO EXTEND THE PERIOD OF DISCOVERY SINCE THE FAILURE OF MR. HARRISON OF METHFESSEL & WERBEL TO FURNISH APPELLANT WITH REQUESTED DOCUMENTS AND INFORMATION DELAYED AND OBSTRUCTED THE DISCOVERY PROCESS FOR OVER 395 DAYS (FROM 2006 THROUGH 2008). SOME OF THE DOCUMENTS THAT WERE REQUESTED IN 2006 WERE NOT RECEIVED UNTIL FEBRUARY 2008 AFTER THE PERIOD OF DISCOVERY HAD EXPIRED.

After a complete and careful review of the record presented, we are satisfied that there was no unlawful denial of access under either OPRA or the common law for three principal reasons. First, Requestor received all of the records to which he was due. Second, some of the requested records, even if they did exist, were exempt as student records that were not required to be made, maintained, or kept on file by the District. See N.J.S.A. 47:1A-1.1; Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 38-39 (App. Div. 2005). Third, the record amply supports the conclusion that the allegedly withheld records sought by Requestor simply do not exist. Certainly, there can be no wrongful denial of access to a non-existent record. See Bent, supra, 381 N.J. Super. at 38.

New Jersey has a longstanding public policy favoring ready access to most public records. Id. at 36. New Jersey provides such access in three distinct ways: (1) through a citizen's common law right of access; (2) by means of OPRA; and (3) via the discovery procedures applicable to civil disputes. Bergen Cty. Imp. Auth. v. N. Jersey Media Group, Inc., 370 N.J. Super. 504, 515 (App. Div.), certif. denied, 182 N.J. 143 (2004). Records that are not available under one approach may be available through another. MAG Ent., LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005). Courts, nevertheless, must be vigilant to ensure that parties do not abuse the privileges granted to them by our ordinarily generous discovery options.

OPRA provides that "all government records shall be subject to public access unless exempt." N.J.S.A. 47:1A-1. The custodian of the government record has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-6. "Government record" is defined as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of . . . official business . . . or that has been received in the course of . . . official business . . . [N.J.S.A. 47:1A-1.1.]

OPRA allows requests for records only, not requests for information, data, or statistics. Bent, supra, 381 N.J. Super. at 37; see also, MAG Ent., LLC, supra, 375 N.J. Super. at 546;

N.J. Builders Ass'n v. Council on Affordable Hous., 390 N.J. Super. 166, 171 (App. Div.) (holding that OPRA does not require agency's custodian to gather responsive information and produce new documents), certif. denied, 190 N.J. 394 (2007). As we have previously stated:

While OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1. Even then inspection is subject to reasonable controls, and courts have inherent power to prevent abuse and protect the public officials involved. . . .

In fact, if a request would substantially disrupt agency operations, the custodian may deny it and attempt to reach a reasonable solution that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g). [MAG Ent., LLC, supra, 375 N.J. Super. at 546.]

Thus, under OPRA, agencies are required to disclose only those "identifiable" government records that are not otherwise exempt. Id. at 549. "Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agency's files." Ibid. Rather, a proper request under OPRA must specify with reasonable clarity only those documents that are desired. Bent, supra, 381 N.J. Super. at 37. A party cannot satisfy this requirement by simply requesting all of an agency's documents because OPRA does not authorize random "unbridled searches" of an agency's property. Ibid.

One of the several exemptions from disclosure under OPRA is "information concerning student records or grievance of disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student." N.J.S.A. 47:1A-1.1. Additionally, schools are prohibited pursuant to federal law from disclosing personally identifiable information from a student's records without first obtaining parental consent. 20 U.S.C.A. § 1232g. This legislation maintains the privacy of "education records," defined as files, documents and other materials that contain information directly related to a student and are maintained by an educational institution. 20 U.S.C.A. § 1232g(a)(4)(A).

The common law definition of a public record is broader than the statutory definition. Bent, supra, 381 N.J. Super. at 36. A common law record is one made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office. Keddie v. Rutgers, The State Univ., 148 N.J. 36, 49 (1997). Thus, while all OPRA documents are common law records, not all common law records constitute OPRA documents. Ibid. To obtain access to a public record under the common law right of access, the Requestor not only must show that the records are common law public documents, but that he also has an interest in the subject matter of the material. Id. at 50. That right of access must then be balanced against the State's interest in preventing disclosure. Ibid. This balancing process focuses on the relative interests of the parties relative to the specific materials desired. Ibid.

Requestor sought the source of the data that the district used to compile the total number of incidents that were reported to the police, in an effort to establish whether similarly situated students of Caucasian descent were so reported. However, he failed to establish that these data were, in fact, in record form, or that the records actually turned over to him by defendant neglected to encompass this information.

Requestor further asserts that he would have used the requested information to show that false certifications were made by a school official and that the defendant's attorney misled the court regarding the availability and number of records maintained. However, this argument merely indicates how plaintiff would have utilized the sought-after information--to raise ancillary credibility issues--not whether he was entitled to disclosure of the information in the first instance.

Defendant claims such records do not exist, and Requestor did not specifically point to the likelihood of the existence of such records. It appears that Requestor cast a spacious net, seeking either the creation of records that do not exist, or information not in record form in what is obviously a fishing expedition. As previously noted, OPRA only permits requests for records, not requests for information, data, or statistics by way of "unbridled searches." N.J. Builders Ass'n, supra, 390 N.J. Super. at 171; Bent, supra, 381 N.J. Super. at 37. Thus, the law does not "countenance open-ended searches" of a public entity's records, and thereby forces government officials to "identify and siphon" information that might be useful to the plaintiff. MAG Ent., LLC, supra, 375 N.J. Super. at 546. Similarly, common law access depends on the existence of a "public record" or "public document." Keddie, supra, 148 N.J. at 49-50.

We perceive no errors of law in the analysis of Judge Feinberg, who was confronted with Requestor's extensive and ongoing demands, yet managed to adequately distill them into an understandable--if still unwieldy--core of claims. Similarly, we conclude that the judge did not abuse her discretion in denying Requestor a plenary hearing pursuant to Rule 4:67-5.

Proceedings under OPRA are to be conducted in a "summary or expedited manner." N.J.S.A. 47:1A-6. As such, they are to proceed under Rule 4:67-1(a). Hearings such as the one sought by Requestor fall within the orbit of Rule 4:67-5, which provides:

[I]f no objection is made by any party . . . or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment.

A summary proceeding differs from a summary judgment proceeding. O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998). Thus, in such a proceeding a party is not entitled to the same favorable inferences that are afforded to a non-movant in a summary judgment proceeding. Ibid. In a proceeding conducted under Rule 4:67-5, a court must make findings of fact, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine facts in dispute, or by conducting an independent evidentiary hearing. Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 378-79 (App. Div. 2003).

Thus, it would appear that the summary judgment procedure utilized by the trial court was actually more advantageous to Requestor than a summary proceeding would have been. As a result, Requestor received the benefit of all favorable inferences from the trial court and a further development of the record. The missing component, in-court testimony, could not reasonably have added any material information to the mix, and would have served only to unnecessarily prolong and further complicate an already lengthy collateral proceeding. As for the balance of Requestor's appellate arguments, particularly his demand for a document-by-document search, we conclude they do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

III.

A motion to extend discovery is governed by Rule 4:24-1(c), which provides in pertinent part:

The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed . . . and made returnable prior to the conclusion of the applicable discovery period. . . . [I]f good cause is otherwise shown, the court shall enter an order extending discovery and specifying the date by which discovery shall be completed. . . . No extension of the discovery period may be permitted after an arbitration or trial date is fixed.

The Rule was part of the substantial procedural changes to New Jersey's litigation practices in 2000. Bender v. Adelson, 187 N.J. 411, 426 (2006). As we have noted, the Supreme Court implemented those changes "to establish uniformity in the trial courts throughout the State, to establish firm and meaningful trial dates, to restore the public's faith in expeditious and efficient litigation and to control dilatory litigation tactics by providing the trial courts with tools to manage litigation." Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 91 (App. Div. 2007).

In order to ameliorate the problems caused by extensions leading to protracted discovery, the Rule lengthened the initial discovery time based upon the particular case's perceived complexity, and made it "substantially more difficult to obtain extensions and amendments once discovery has ended." Ibid. If a trial or arbitration date has been set, the movant must establish "exceptional circumstance." If such a date has not already been set, then the movant must establish "good cause." Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div.), certif. denied, 200 N.J. 502 (2009).

Good cause for an extension of discovery is a concept that is "flexible and its meaning is not fixed and definite." Leitner, supra, 392 N.J. Super. at 87 (citing Tholander v. Tholander, 34 N.J. Super. 150, 152 (Ch. Div. 1955)). The factors the court should consider include: the reasons for the request; the movant's diligence in pursuing discovery theretofore; the type and nature of the case, including any unique features; the possibility of resulting prejudice to the movant if the motion were denied; whether granting the motion is "consistent with the goals and aims" of Best Practices; the case's age and whether an arbitration or trial date has been "established"; the "type and extent of discovery" that remains; any prejudice to the non-moving party should the motion be granted; and what motions have already been decided by the court. Id. at 87-88.

The decision whether to extend the period of discovery is reviewed for abuse of discretion. Id. at 87. "Our standard of review is limited to a determination of whether the trial court mistakenly exercised its discretion in denying plaintiff's motion for an extension of discovery period under R. 4:24-1(c)." Huszar v. Greate Bay Hotel & Casino, 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185 N.J. 290 (2005) (citing Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 51 (App. Div. 2003)).

In this case--although it seems anomalous--there was a lack of diligence. In contravention to Rule 4:24-1(c), the motion to extend discovery was returnable after the expiration of the discovery period and more importantly, after defendant had already moved for summary judgment. Although John claimed that the protracted OPRA litigation prevented him from deposing the witnesses, there was no reasonable explanation as to what prevented him from conducting timely depositions or what he hoped to obtain from such multifarious depositions. Although we recognize that Judge Sumners should have applied a good cause rather than exceptional circumstances test, John nevertheless did not demonstrate good cause to permit a furtherance of the already pointless discovery that had unfolded.

John sought to depose numerous witnesses, and based upon his past practices it seems obvious that no end was in sight of the conclusion to the discovery phase of the litigation.*fn10 Such discovery would obviously have been time-consuming, burdensome, and it has not been shown likely to have been fruitful. Moreover, plaintiff neither explicitly stated how he was prejudiced by being unable to depose the witnesses nor did he explain why those depositions could not have commenced sooner.

Appellants' reliance upon Ponden v. Ponden, 374 N.J. Super. 1, 6-7 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), is misplaced. There, plaintiff sought additional time to file a new expert report after the expiration of the discovery period, claiming that the prior expert had a conflict of interest. We held that the trial court had abused its discretion by not granting the plaintiff's motion for a brief extension of discovery because an arbitration or trial date had not yet been established and the prior expert had rendered only a net opinion. Id. at 11-12. Unlike Ponden, the extension needed to depose sixteen or more witnesses would not have been brief, and a relaxation of the discovery parameters in the interest of justice was not warranted.

Similarly, in Tynes, the plaintiffs sought to extend the time of discovery in response to the defendants' motion for summary judgment based upon the plaintiffs' failure to serve expert reports within the time set by the trial court. Tynes, supra, 408 N.J. Super. at 166. The plaintiffs argued that they could not furnish such reports until a retired physician, who had been employed by the defendant hospital, had been deposed. Ibid. The trial court denied the plaintiffs' motion, and this court affirmed. We noted that the plaintiffs were aware of the physician's involvement long before they had claimed, and could have deposed the physician much earlier. Id. at 170-71. Moreover, because the requested deposition would require "more than a brief period of time" to complete, the court found that the defendants would be prejudiced by a discovery extension because the claims had been pending against them for several years. Id. at 172. Finally, the court concluded that the absence of the scheduling of an arbitration or trial date had less significance due to the age of the case--over four years from the filing of the complaint to the motion to extend discovery-- and the amount of time, including many extensions, the trial court had already permitted for discovery. Id. at 176.

The crucial similarity between Tynes and this matter is that the requested depositions would require much more than a brief time to complete, especially because plaintiff sought to depose numerous witnesses. Moreover, although the actual discrimination litigation was only commenced in September 2006, the conflict between the parties had been waged for several years prior. Coupled with the supplementary OPRA and common law right of access claims that kept the parties in a continuous, multi-faceted battle, the litigational landscape was overcomplicated to an extent that materially detracted from an effective resolution of the dispute.

We turn now to a review of the grant of summary judgment on the LAD claim, which is the sole theory of liability reserved for appeal. Our review of the trial court's grant of summary judgment is de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in a light most favorable to the non-moving party nonetheless entitle defendant to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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).

Analysis of an LAD claim is based on the framework delineated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 303 (App. Div. 2000). Under that framework, the plaintiff must first demonstrate a prima facie case of discrimination; only then does the burden of producing evidence shift to the defendant to articulate some legitimate, nondiscriminatory reason for the action. Ibid. The plaintiff then has the opportunity to show that the defendant's stated reason was, in fact, pretext, or that the action in question occurred under circumstances which give rise to an inference of unlawful discrimination. Ibid. Evidence of pretext may be indirect, such as a demonstration that similarly situated employees were not treated equally. Id. at 304. The ultimate burden of persuasion remains at all times with the plaintiff. Ibid.

Although published case law has not addressed LAD-rooted student disciplinary disparate treatment cases, an extension of the paradigm of the alternating burdens of proof for claims of discriminatory employment-based discipline should be a starting line in this case. Our courts have adopted the burden shifting framework articulated in McDonnell Douglas for determining whether an employer has violated the LAD. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005) (citing Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988) and Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 82 (1978)).

[T]he court first determines whether plaintiff has produced sufficient evidence to demonstrate the elements of his or her prima facie case. If so, then the burden shifts to the employer to produce evidence of "legitimate, non-discriminatory reasons" that support its employment actions. Once the employer has done so, the burden shifts back to plaintiff to prove that the stated reasons were a pretext for discrimination. [Ibid. (internal citations omitted).]

A prima facie case of discrimination requires a showing that: (1) plaintiff is a member of a protected class; (2) plaintiff was performing the job consistent with the employer's expectations; (3) plaintiff suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991); ElSioufi, supra, 382 N.J. Super. at 167. Our Supreme Court has recognized that this burden is "rather modest." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3rd Cir. 1996)).

The burden then shifts to the defendant, and requires a demonstration of "a legitimate, nondiscriminatory reason for the employer's action." Id. at 449. At this stage, there is no credibility or truth assessment; all the employer is required to show is that there was a legitimate explanation for its action. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S.Ct. at 1824-25, 36 L.Ed. 2d at 677-79. The employer "must come forward with admissible evidence of a legitimate, non-discriminatory reason for its rejection of the employee." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999).

Thereafter, the burden swings back to the plaintiff to establish "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." Zive, supra, 182 N.J. at 449. "To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). The employee does not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." [Zive, supra, 182 N.J. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]

If the plaintiff fails to meet this obligation, the defendant is entitled to summary judgment. Zive, supra, 182 N.J. at 456.

In the present case, John cannot establish a prima facie case under McDonnell Douglas mainly because he has failed to demonstrate any actionable disparate treatment. The essence of John's grievance relates to his ten-day suspension and having to suffer the indignity of being lawfully reported to the local police pursuant to N.J.A.C. 6A:16-5.3 and N.J.A.C. 6A:16-6.3. His evidence of disparate treatment lies in the assertion that-- according to his appellate brief--"similarly situated regular education and special education Caucasian students at CMS were suspended for only [three] to [five] days for possession of a knife on school property."*fn11 We have been unable to discern any prima facie basis to allege disparate treatment, much less the careful production of sufficient information in defense of the summary judgment motion, in order to refute the defendant's claim that there were no disputed material facts.

As Judge Sumners put it:

[A] reasonable jury could not conclude that the black or African students were given greater discipline than any white or Caucasian students. Plaintiff cannot establish that there was a disparate treatment of him due to his race or the defendant's disciplinary practices had a disparate impact, meaning practices which are facially neutral in their treatment of different groups, but fall more harshly on one group than another.

There is more than a mere kernel of truth to the motion judge's determination. We do not believe that the de minimis differences in punishment--for carrying a deadly weapon onto school property--is significant enough to trigger the involvement of the LAD. Moreover, defendant's adherence to the mandatory regulations of the Department of Education regarding reporting certain incidents to local police agencies, without more, cannot elevate John's grievance into the realm of a civil rights violation. Indeed, notwithstanding the important general principles that the LAD is designed to uphold, John's effort to invoke its anti-discrimination protections is unavailing. In the school environment, with the need to fine-tune and tailor student-centric dispositions in order to fulfill a thorough and efficient education, we simply do not perceive a sufficient factual dispute or a significant difference in punishment to warrant a trial on the LAD claims here.

It has been declared by our Supreme Court that the school setting calls "for protections geared toward the safety of students." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 580 (2009). Indeed, "the education of youth is essential to . . . the future well-being of society[.]" Abbott v. Burke, 199 N.J. 140, 144 (2009). Obviously, the education process is hampered when weapons and other illegal activities are present on school grounds. Indeed, the need for school officials to maintain safety, order, and discipline is fundamentally necessary whether school officials are addressing these concerns inside the school building, outside in the school parking lot, or on school buses transporting students.

This authority, of course, does not extend to school officials the right to trample the civil rights of any individual, including a student. Nevertheless, our review of what happened to John in 2004, even when viewed alongside what he claims did not happen to others, does not create a triable issue under the LAD. There simply was no statistically or legally significant basis in this record to support a finding that John was intentionally discriminated against or that any disparate impact resulting from the sanction or the notification to the police was not directly related to legitimate and altogether appropriate educational purposes.

We have no occasion to revisit, much less modify, the analogous principle that recognizes that the treatment of white employees more leniently than black employees for similar infractions can be a violation of the LAD. See Jason, supra, 329 N.J. Super. at 295. We conclude, however, that when viewed in a public school milieu, John's sanction of ten days suspension-- versus the three to five days suspensions alleged to have been conferred upon a handful of students of different racial and ethnic backgrounds--constitutes neither actionable disparate treatment nor is sufficient to resist summary judgment. Cf. State v. Best, ___ N.J. ___ (2010) (observing the delicate balance between a student's civil right to be free from unreasonable searches and to receive a thorough and efficient education).

We further think it plain that even if the burden had shifted back to defendant to demonstrate that the sanction imposed and the fulfillment of its reporting obligation were education-related and consistent with the necessity to maintain a safe school environment, defendant overwhelmingly bore that burden.

In sum, we affirm the judgments in all four appeals. John and Requestor were given many opportunities--stretching over the course of several years--to develop a cognizable foundation for seeking redress. The multiple tribunals that reviewed plaintiffs' claims exhibited patience, indulgence, and care, and they soundly applied applicable legal principles.

Affirmed.


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