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Shana v. Rutgers

October 12, 2010

MAZOUZ MIDDLETON SHANA, PLAINTIFF-APPELLANT,
v.
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY; RICHARD MCCORMICK, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF RUTGERS, THE STATE UNIVERSITY; THE BOARD OF GOVERNORS OF RUTGERS UNIVERSITY; DOUGLAS EVELEIGH, MAX HAGGBLOM, JULIE FAGAN, ALAN ANTOINE, THEODORE CHASE, LENA BRATTSTEN, JAMES LASHOMB, BARBARA ZILINSKAS, TIMOTHY CASEY, BRIAN ROSE, PATRICK O'CONNOR, AND JOHN KRENOS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4362-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Plaintiff Mazouz Middleton Shana appeals from the May 28, 2009 summary judgment dismissal of his complaint filed against defendants Rutgers University, Richard McCormick, individually and in his capacity as President of Rutgers University, the University's Board of Governors, and twelve current or former faculty members (collectively "defendants"). Plaintiff's complaint alleged conduct that constituted ethnicity, national origin and disability discrimination and harassment, and the creation of a hostile education environment, as prohibited by New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

On appeal, plaintiff primarily focuses his challenges on what he argues were abusive discretionary determinations of several motion judges who provided "preferential treatment" toward defendants "over pro se plaintiff" that ultimately resulted in entry of judgment without allowing him "a fair and reasonable opportunity to complete and file [] op[p]osition," especially in light of his cognitive and physical disabilities. Plaintiff specifically cites the court's determinations that (1) adjourned "the trial date to accommodate defendants' desire for additional discovery" and ordered "plaintiff to appear for two additional days of depositions after [he] had already appeared for three days of depositions"; (2) denied his requests to adjourn the summary judgment motion and trial; and (3) considered defendants' summary judgment motion unopposed, in the face of his request for more time to file opposition. Also plaintiff argues he discovered two motion judges were Rutgers alumni and for the first time on appeal, argues they should have recused themselves from considering a matter involving their alma mater. Finally, plaintiff argues his LAD claims are not time barred.

We have reviewed and considered each of these arguments presented in light of the record and the applicable law. We affirm.

The following facts are taken from the summary judgment record. Plaintiff, an Arab-American, immigrated from Palestine to the United States in 1993. He studied English at Fairleigh Dickinson University and attended Bergen County Community College. In the fall of 1999, he transferred to Rutgers University's main New Brunswick campus (Rutgers). After a short leave of absence, plaintiff resumed his undergraduate studies at Rutgers in the fall 2000. He completed degree requirements for a Bachelors of Science in Biotechnology and Biochemistry on May 18, 2005.

It is not disputed that prior to his undergraduate matriculation, plaintiff suffered from both a cognitive impairment caused by a 1994 automobile accident and Crohn's disease, a chronic inflammation of the gastrointestinal system. In the fall of 2000, plaintiff informed Rutgers's Office of Student Disability Services of these conditions and requested reasonable testing accommodations. Specifically, he sought time-and-a-half for examinations and the opportunity to complete any work missed due to an intestinal "flare-up." Rutgers granted his requests and identified plaintiff as a student with a disability.

Plaintiff's LAD complaint was filed on May 9, 2007. It named as defendants Rutgers, its president and trustees, along with individual administrators and faculty members whom plaintiff alleged had individually and in concert, engaged in systematic discrimination based on his ethnicity and disability. Plaintiff asserts the defendants conducted a "campaign of retaliation," which including verbal abuse and humiliation, discrimination in awarding him grades, refusal to accommodate his cognitive impairments and physically disabilities, and created a "very hostile and toxic educational environment." A review of whether plaintiff's claims were untimely, warranting dismissal, requires recital of the allegations set forth in the complaint attributed to the individual defendants.

At the time plaintiff attended Rutgers, Dr. Richard McCormick was the President of Rutgers University. He was named as a defendant, along with the Board of Governors, based upon his overall supervisory authority for the Rutgers faculty and administration, as well as the responsibility to implement and enforce nondiscriminatory practices.

Rutgers has a written antidiscrimination and harassment policy along with an internal grievance and complaint procedure for students to grieve improper denials of disability accommodations. The Office of Compliance, Student Policy, Research and Assessment investigates complaints and monitors compliance. Rutgers also has a written procedure to challenge grades received for coursework. The procedure directs students to first attempt to resolve the dispute with the instructor. If unsuccessful, a written request must be submitted to the departmental chairperson within two weeks of receipt of any individual examination grade or four weeks after receipt of a final course grade. Appeals are then submitted in writing to the office of the dean overseeing the faculty member.

In the 2000 fall semester, plaintiff registered for General Microbiology with Dr. Douglas Eveleigh, a tenured professor in the Department of Biochemistry and Microbiology in the School of Environmental and Biological Sciences (SEBS). In December, plaintiff requested the opportunity to improve his course grade because an intestinal flare-up had adversely affected his test performance. Eveleigh agreed to record a temporary grade pending the submission of a short written assignment as a supplement to plaintiff's exam grades. During this conversation, Eveleigh asked the origin of plaintiff's "interesting accent" and the conversation turned to his Palestinian heritage. Also, Eveleigh suggested plaintiff might write a paper on "Palestinian food," as fermentation of food was a major topic in the course, and he often suggested papers that "focus on fermented foods with which the student might be familiar" when making supplemental assignments. Towards the end of this conversation, the topic returned to the possible microbial causes of plaintiff's Crohn's disease and at some point Eveleigh quipped, "So you dwell in the bathroom."

Despite this agreed accommodation, plaintiff maintains Eveleigh assigned him a "C," telling him to "forget about the project, I can't help you." When plaintiff sought to discuss this, Eveleigh became "angry," "yelled" and "slammed" his office door in plaintiff's face. Thereafter, Eveleigh "refused to discuss the matter" and became "hostile" and "unapproachable." Because plaintiff later enrolled in two required courses taught by Eveleigh, he endured this hostility for two years.

One course taken in the 2001 fall semester, Microbial Technology, was taught jointly by Eveleigh and Max Haggblom, who also is a tenured professor in the SEBS Department of Biochemistry and Microbiology. Plaintiff contacted Haggblom inquiring whether he received an e-mail explaining he would be missing an upcoming exam. Haggblom responded by referencing the fact that the Microbiology building had been evacuated the day before due to "a terrorist threat," then stated, "It is unfortunate and frustrating to deal with people like [you] who have a history of getting sick before an exam."

Plaintiff alleges he was subjected to more stringent grading criteria by Eveleigh and Haggblom. Consequently, he received a "D" in the course, which he did not challenge in accordance with Rutgers' published policy. Instead, he reenrolled in the course the following fall. As the class neared conclusion, Eveleigh agreed to send students a description of the material to be covered by the final examination. However, he did not have all of the students' e-mail addresses. He sent the information to Haggblom and nine students whose e-mail addresses he had, and included instructions to circulate the information to those not on the list. Plaintiff alleges he was intentionally omitted and only received the information from a classmate days later.

After being given additional time to complete the exam, plaintiff received a "B" in the course, but believed he was entitled to an "A." In an e-mail to the professors, plaintiff claimed his two grades in their courses were impacted by their personal dislike of him and a failure to accommodate his medical condition. Eveleigh and Haggblom separately responded, each denying plaintiff's allegations of disparate treatment and stating they used the same grading procedure in both 2001 and 2002.

On January 15, 2003, plaintiff filed a formal complaint alleging disparity with Alan Antoine, Chair of the Biochemistry and Microbiology Department. Plaintiff maintained he had been graded more harshly than other students because he had received accommodation during examinations. After review of the grading policies used for the class and as applied to plaintiff's work, Antoine determined no unfairness occurred. Antoine referred his decision to the SEBS Dean, but plaintiff never filed an appeal with that office. In calculating plaintiff's grade point average, the "B" achieved in Fall 2002 replaced the "D" received the prior year.

Plaintiff also related alleged incidents of failure to accommodate by professors in the Department of Chemistry and Chemical Biology in the School of Arts and Sciences. He generally stated the department issued a policy limiting the number of make-up examinations a student could request in a semester. He challenged the policy because it failed to accommodate a student suffering a disability.

Also, plaintiff related instances of discriminatory treatment by several professors. We relate these allegations.

Patrick O'Connor taught Chemistry 307, a course of approximately 1,200 students divided into three lecture sections. Plaintiff enrolled in the course in the fall 2000 semester. O'Connor complied with suggested accommodations by allowing plaintiff extra time to complete exams and to make up the only exam he missed, without penalty. At some point during the semester, plaintiff approached O'Connor and asked if he had received materials regarding his illness. Plaintiff asserts O'Connor loudly told plaintiff to "back off" and stormed away, allegedly mumbling "idiot" under his breath. Plaintiff received a "D" in the course, which he did not challenge.

In the spring 2001 semester, plaintiff enrolled in Chemistry 308, a class of similar size and structure to Chemistry 307, for which O'Connor was one of the course instructors. Plaintiff did not attend any scheduled examinations and, in mid-April, sought advice from Dr. John Krenos, the Executive Officer of the Chemistry Department.

Krenos suggested plaintiff withdraw from the course and retake it at a later date, rather than sit for all of the exams that summer. Plaintiff opted to sit for the missed tests in the summer session rather than delay completion until spring 2002. Based on his exam results, plaintiff received an "F" in Chemistry 308.

Krenos had informed Associate Dean of Academic Programs, Dr. Robert Hills, that plaintiff decided to take the missed examinations for Chemistry 308 during the summer sessions and recommended plaintiff be granted a retroactive withdrawal from Chemistry 307. Also, in accordance with Rutgers's accommodation grievance procedure, plaintiff had filed a complaint with Brian Rose, the Director of Compliance and Student Policy Concerns in the Office of the Vice President for Student Affairs, alleging that despite his disability, he had been denied the opportunity to reschedule missed examinations for Chemistry 307 and 308.

On September 4, 2001, after review by the Scholastic Standing Committee, Hills permitted plaintiff's retroactive withdrawal from Chemistry 307, replacing his "D" grade with a "W." Plaintiff then met with Rose. Plaintiff requested the "W" be removed from his transcript. Despite the delay in its presentation, Rose considered plaintiff's request, and rejected it stating:

it is important to note that [the Chemistry Department and SEBS] did modify their policies and procedures in an attempt to accommodate your disability. In Chemistry 307, you sat for all but one exam and received grades for them. Not until you had received your final grade . . . did you make a cognizable complaint that the policy . . . was somehow discriminatory as applied to you. Despite the fact that the deadline for withdrawal without penalty had passed, you were nonetheless allowed to retroactively withdraw from the course. . . . With regard to Chemistry 308, you were permitted [ ] to make up any exam that you might miss by sitting for the exam(s) during the Summer Session . . . . Indeed, you missed all the exams . . . and did sit for the make-ups in Summer 2001. In that way, you accepted the accommodation offered.

You argue the accommodations are insufficient. With respect to Chemistry 307 . . . [y]ou state that you should have been permitted to schedule the examinations offered in the course when you felt healthy enough to sit for them . . . . With respect to Chemistry 308, you suggest that the opportunity to sit for make-up exams during the Summer Session . . . was insufficient because it still did not give you sufficient control over the examination dates to insure that you would be feeling well on the days of the exams.

[I] believe [ ] the accommodations provided were above and beyond what is legally required under applicable disability laws . . . . By your own accounting, you missed all exams in Chemistry 308 during the Spring 2001 term and would have additionally rescheduled all of the summer make-up dates if that did not mean waiting until Spring 2002 to do so. Further, you report you would have rescheduled all the exams in Chemistry 307 had that option been available. Accordingly, to provide you with the accommodations that you seek would amount to giving you full control over when you sit for any examination in any course . . . . because it presupposes that your faculty members will (a) constantly compose new examinations for you so as to protect against possible academic integrity concerns; (b) hold off on reviewing test questions with the balance of the class until you have made yourself available for your exam; and (c) somehow manage to teach you sequential material despite your inability to have your comprehension tested at appropriate intervals . . . . Disability law[s] simply do[] not require that [Rutgers] simply cede to you full control of your examination schedule. To the extent that your condition truly does prevent you from sitting for so many examinations, I would conclude that you are not a "qualified person with a disability[.]"

Plaintiff had no further contact with Rose.

Plaintiff continued to seek modification of the reported grades for Chemistry 307 and 308. He argued he had re-taken Chemistry 307 in the fall of 2001 and received a "C." In a January 29, 2002 e-mail, Krenos informed Hills of this fact. He recommended plaintiff's grade for Chemistry 307 be modified and that he be granted a retroactive withdrawal from Chemistry 308. He also mentioned that because of plaintiff's "worsening health problems," plaintiff might benefit from completing "his organic chemistry courses elsewhere," referring to a smaller institution.

On May 2, 2002, Hills informed plaintiff his petition to delete the "W" grade for Chemistry 307 had been approved. In the Spring 2004 semester, plaintiff retook Chemistry 308 and received a grade of "C." That grade was not challenged.

In the fall 2002 semester, plaintiff took Methods of Recombinant DNA with Barbara Zilinskas, a tenured professor in the Department of Plant Biology and Pathology. Around the first anniversary of the September 11, 2001 attacks, Zilinskas held a moment of silence and allowed a student, who had been an emergency medical technician in New York City, to offer brief remarks. Plaintiff's complaint states Zilinskas "knew" his background and understood her actions "caused [him] a lot of shame." Also, he alleges these observances were inappropriate as Zilinskas "knew about [his] medical condition" and should have appreciated the effect stress would have on his intestinal system.

In that semester, plaintiff also registered for the G.H. Cook Honors Program, a six credit-hour independent research project under the guidance of a faculty advisor. He approached Animal Sciences Department professor Julie Fagan to serve as his advisor and she agreed. Plaintiff alleges that when Fagan learned he was Palestinian, she changed from being "very friendly and cooperative" to "increasingly uncooperative and unfriendly." Illustrative of this point, plaintiff relates a comment made when Fagan granted him after-hours lab access. She said: "You will get a set of keys to the lab, if you promise not to blow up the building."

Plaintiff also contends Fagan provided testing samples for his research, which were supposed to be a basal cell carcinoma sample, but turned out to be growth media. As a result, plaintiff's two years of research were meaningless. Without specificity, plaintiff alleges Fagan ...


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