On appeal from the Division on Civil Rights, Docket No. EB06HE-52136-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Alvarez and Coburn.
The Cliffside Park Board of Education (Board) appeals from a Division on Civil Rights (Division) decision reinstating John J. Ponsi to his teaching position, awarding back pay and attorney's fees, and imposing a penalty for violation of N.J.S.A. 10:5-14.1a. For the reasons that follow, we affirm.
On February 17, 2006, Ponsi filed a complaint with the Division alleging that the Board discharged him in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The matter was transferred to the Office of Administrative Law (OAL) as a contested case.
At a prehearing conference, the Administrative Law Judge (ALJ) determined "that the issue in this case was whether the Board made a reasonable accommodation to [Ponsi's] limitations." After the hearing, the ALJ concluded that the Board had not taken "affirmative steps" to reasonably accommodate Ponsi and could not establish that such accommodations would have been an undue burden. The ALJ also found Ponsi able to fulfill his obligations as a teacher. Accordingly, the ALJ ordered the Board to reinstate Ponsi to his former tenured position and to compensate him for lost wages, insurance costs, and attorneys fees, as well as pay a penalty.
The Board filed exceptions to the ALJ's decision, which was affirmed by the Director of the Division. The Director agreed with the ALJ that the testimony of Dr. Michael Milano, Ponsi's treating physician, and Dr. Peter Crain, his psychiatric expert, was more credible than the Board's expert, Dr. Gerald Meyerhoff. The Director noted that the ALJ's credibility findings were entitled to great deference because of his opportunity to see and hear the witnesses. Additionally, the Director found that internal inconsistencies in Dr. Meyerhoff's report and his reliance upon unproven and contested allegations made against Ponsi, were a rational basis for the ALJ rejecting the report. The Director further concluded that Ponsi's request for reinstatement required the Board to make a good faith effort to reasonably accommodate him, and that the Board instead merely terminated him.
The Director adopted the ALJ's remedies, albeit with some modifications. The Director ordered the Board to pay Ponsi $155,698 in back pay, $24,079.14 for prejudgment interest, $27,947 in tax leveling, $1000 for emotional distress, $83,037.50 for counsel fees, and $16,821.84 in advanced costs.*fn1
The Board was also ordered to pay a statutory penalty of $10,000. N.J.S.A. 10:5-14.1a. This appeal followed.
Ponsi taught math continuously at Cliffside Park High School since 1980, with the exception of a one-year absence in 1983. On May 23, 2003, he was unexpectedly called to the principal's office for a meeting with two students who claimed that he made racist and lewd comments to them two days prior. Also at the meeting was a teacher who claimed that during the same week he had pushed her. Ponsi flatly denied that the incidents occurred. On May 27, 2003, Ponsi was notified that because of the allegations, he was suspended with pay pending the outcome of an investigation and of a psychiatric evaluation. No investigation was ever conducted by the Board.
Prior to the allegations, Ponsi did not suffer from any health problems, psychiatric or otherwise. After the suspension, he experienced nervousness, dizziness, headaches, palpitations, insomnia, and stomach pain. His physician recommended that he see a psychiatrist. In June 2003, Ponsi began seeing Dr. Milano, who diagnosed him with "adjustment reaction of adulthood with mixed anxiety and depression." Ponsi saw Dr. Milano until the spring of 2004, when he stopped his weekly visits and discontinued his medication. In a written report dated January 31, 2005, Dr. Milano stated that Ponsi's "initial symptoms of anxiety and depression sprang directly from the charges and dismissal from teaching. These symptoms have abated at present." Dr. Milano said that as of December 31, 2004, Ponsi was "fully able to resume his teaching duties." Ponsi's attorney forwarded the report to Board counsel on February 9, 2005. The letter formally requested reinstatement.
In the interim, Dr. Meyerhoff evaluated Ponsi on behalf of the Board on September 16, 2003. Dr. Meyerhoff diagnosed Ponsi with "Axis I: 309.28 Adjustment Disorder with Mixed Anxiety and Depressed Mood[.] Axis II: -- Obsessive-Compulsive and Paranoid Personality Traits." He opined that Ponsi was unable to teach at that time or in the foreseeable future. On October 15, 2003, the Board notified Ponsi that he was ineligible to teach until he provided proof of recovery. The Board further advised that should Ponsi's absence exceed two years, his employment would be terminated.
On February 15, 2005, the Board requested that Dr. Meyerhoff reevaluate Ponsi in anticipation of a decision being reached on his request for reinstatement. During the resulting April 5, 2005 evaluation, Dr. Meyerhoff found his earlier Axis I diagnosis to be irrelevant because of Ponsi's reported improvement and lack of symptoms of anxiety or depression. Dr. Meyerhoff said, however, that because Ponsi continued to deny the allegations against him, "obsessive-compulsive flavorings of paranoid thinking still lurk beneath." He diagnosed Ponsi with "Axis ...