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J.C., Z.T., and O/B/O Minor Child, V.T v. Valerie Goger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 12, 2011

J.C., Z.T., AND O/B/O MINOR CHILD, V.T., PLAINTIFFS-APPELLANTS,
v.
VALERIE GOGER, REGINA RUDOLPH, FRANCIS T. HOWLETT, JR., DAN FRIEDMAN, LOUIS CARLUCCI, CHERYL DYER, RICHARD STOTLER, BRIAN HEINEMAN, GEORGE VILLAR, SCOTT THOMPSON, KIMBERLY STOCKER, RUTHANN DEIN, BERNARDS TOWNSHIP BOARD OF EDUCATION, DAVID S. LIVINGSTON, BEVERLY HETRICK, PAUL MURCHISON, WILLIAM N. KING, ELAINE M. TRYJANKOWSKI, NJDOE, MS. A. MITCHELL, MR. S. BRUSH, MRS. M. MITCHELL, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-852-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2011

Before Judges Fuentes, Harris, and Koblitz.

Plaintiffs J.C., Z.T., and V.T. comprise a family that alleges its members suffered racial discrimination, retaliation, harassment, and bullying while V.T. was in high school. Their claims initially arose during V.T.'s sophomore year when her school failed to nominate her for several commendations and school administrators refused to act on the family's unrelenting inquiries and persistent complaints. Although V.T. ultimately received many academic honors and matriculated at an eminent university in New Jersey, the family asserts that she suffered humiliation and emotional distress due to the actions and omissions of school and State officials. Accordingly, V.T.'s parents filed a complaint (and more than a few amended complaints) against the Bernards Township Board of Education and many of its employees, and the New Jersey Department of Education and several of its employees.

The litigation was resolved through a series of dispositive orders of Judge Fred H. Kumpf. On appeal, plaintiffs argue the following:

POINT I: TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN FAILING TO ADHERE TO THE LEGAL STANDARD FOR MSJ.

A. TRIAL COURT'S DECISION WAS BASED ON DEFENDANTS' CONTENTIONS INSTEAD OF EVIDENCE, WITHOUT FINDING UNDISPUTED FACTS.

B. TRIAL COURT ERRED IN FAILING TO VERIFY DEFENDANTS' UNSUPPORTED AND FALSE FACTUAL CONTENTIONS.

C. TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN FAILING TO CONSIDER DEFENDANTS' ADMISSIONS OF ALMOST ALL MATERIAL FACTS SUPPORTING PLAINTIFFS' CLAIMS.

D. TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN FAILING TO APPRECIATE THAT DIRECT EVIDENCE OF RETALIATORY ANIMUS SUFFICIENTLY PRECLUDES MSJ.

E. TRIAL COURT ERRED IN FAILING TO RECOGNIZE THAT ESTABLISHMENT OF PRIMA FACIE CASE SUFFICIENTLY PRECLUDES MSJ.

POINT II: TRIAL COURT ERRED IN LAW IN FAILURE TO ADHERE TO THE LEGAL STANDARD IN DECIDING DISCRIMINATION AND RETALIATION CLAIMS.

A. TRIAL COURT FAILED TO APPRECIATE THAT DISCRIMINATION CLAIMS MAY BE INFERRED.

B. TRIAL COURT FAILED TO REQUIRE DEFENDANTS TO FULFILL THEIR BURDEN OF PROOF THAT THEY WOULD MAKE THE SAME DECISION REGARDING ALL ALLEGED ADVERSE ACTIONS ABSENT DISCRIMINATORY AND RETALIATORY MOTIVE.

POINT III: TRIAL COURT COMMITTED LEGAL, PROCEDURAL, AND DUE PROCESS ERRORS IN GRANTING BTSD DEFENDANTS' OCT-6-09 MOTION FOR RECONSIDERATION OF ITS DECISION IN MSJ.

A. TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN FAILURE TO ADHERE TO THE LEGAL STANDARD FOR MOTION FOR RECONSIDERATION.

B. TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN FAILURE TO ADHERE TO THE LEGAL STANDARD FOR MSJ.

C. TRIAL COURT COMMITTED PROCEDURAL ERRORS IN CONSIDERING BTSD DEFENDANTS' MOTION FOR RECONSIDERATION AND IN DENYING PLAINTIFFS' RIGHT TO A SCHEDULED TRIAL.

D. TRIAL COURT COMMITTED DUE PROCESS ERROR AND OFFENDED THE EQUAL TREATMENT OF ALL PARTIES.

POINT IV: TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN DISMISSING COUNTS 3-11 W.R.T. JC/ZT.

A. TRIAL COURT ERRED IN FAILING TO CONSIDER PLAINTIFFS' EVIDENTIAL PROOF IN DETERMINING FACTS INSTEAD OF THE EXISTENCE OF DISPUTES, AND IN RESOLVING FACTUAL ISSUES IN THE LIGHT MOST FAVORABLE TO DEFENDANTS' CONTENTIONS.

B. TRIAL COURT ERRED IN FAILURE TO PROVIDE SPECIFIC FACTUAL AND LEGAL GROUNDS FOR THE DISMISSAL OF EACH CLAIM.

C. TRIAL COURT MISREAD LAD AND MISAPPLIED THE CASE LAWS.

D. TRIAL COURT ERRED IN DETERMINING THAT THE ADVERSE ACTIONS THAT JC/ZT SUFFERED DO NOT RISE TO THE LEVEL OF AN ADVERSE ACTION.

POINT V: TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN ACCEPTING DEFENDANTS' UNSUPPORTED, CONTROVERTED, PRETEXTUAL CONTENTIONS AS "NON-DISCRIMINATORY REASONS."

A. TRIAL COURT ERRED IN ACCEPTING BTSD DEFENDANTS' PRETEXTUAL CONTENTION THAT "THE TEACHERS WERE FREE TO NOMINATE STUDENTS" AS A NON-DISCRIMINATORY REASON.

B. TRIAL COURT ERRED IN ACCEPTING BTSD DEFENDANTS' PRETEXTUAL CONTENTION THAT "NONE OF THE PLAINTIFF'S TEACHERS MADE ANY NOMINATIONS FOR ANY OF THEIR STUDENTS" AS A NON-DISCRIMINATORY REASON.

C. TRIAL COURT ERRED IN ACCEPTING DOE DEFENDANTS' UNSUPPORTED PRETEXTUAL CONTENTION THAT "THE SELECTION FOR GSET WAS MADE IN CONFORMANCE WITH THE SET REVIEW CRITERIA" AS A NON-DISCRIMINATORY REASON.

a. THE CONTENTION IS BASED ON LIES OR BARE CLAIMS AND IS UNWORTHY OF CREDENCE.

b. NUMEROUS PROCEDURAL IRREGULARITIES PROVED THE CONTENTION PRETEXTUAL.

c. DOE DEFENDANTS' INTERNALLY CONTRADICTORY AND INHERENTLY IMPLAUSIBLE CLAIMS SUPPORT THAT THE CONTENTION IS A PRETEXT.

d. THE "SELECTION PROCESS" IS A POST-HOC FABRICATION TO COVER UP UNLAWFUL DISCRIMINATION AND RETALIATION.

D. TRIAL COURT ERRED IN ACCEPTING DOE DEFENDANTS' PRETEXTUAL CONTENTION REGARDING VT'S QUALIFICATION AS A NON-DISCRIMINATORY REASON.

a. TRIAL COURT ERRED IN ADOPTING DOE DEFENDANTS' CONTENTION THAT "A MORE QUALIFIED STUDENT WAS ULTIMATELY CHOSEN" AS A NON-DISCRIMINATORY REASON.

b. THE CONTENTION WAS UNWORTHY OF CREDENCE SINCE IT WAS DISBELIEVED BY DOE DEFENDANTS THEMSELVES.

E. TRIAL COURT ERRED IN LAW IN FAILURE TO RECOGNIZE THAT DOE DEFENDANTS' CONTENTION THAT REVIEW CRITERIA CONTAINED "SUBJECTIVE FACTORS" WAS POOR DISGUISE FOR DISCRIMINATION.

F. PLAINTIFFS ARE ENTITLED TO JUDGMENT AGAINST DEFENDANTS AS A MATTER OF LAW.

POINT VI: TRIAL COURT ERRED IN LAW IN DISMISSING EVERY COUNT IN THE 3RD AMENDED COMPLAINT.

A. COUNT 1.

B. COUNT 2.

C. COUNT 3.

D. COUNT 4.

E. COUNT 5.

F. COUNT 6 AND 8.

G. COUNT 7.

H. COUNT 10.

I. COUNT 11.

POINT VII: TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN DISALLOWING JC/ZT TO CONTINUE TO PROSECUTE THE COMPLAINT AND IN REQUIRING VT TO SIGN THE AMENDED COMPLAINTS AND REPRESENT HERSELF IN A CASE FILED BY HER PARENTS WHEN SHE WAS A MINOR.

A. REQUIRING VT TO SIGN THE COMPLAINT AND REPRESENT HERSELF DIRECTLY CONFLICTS WITH TRIAL COURT'S NOV-21-2008 ORDER DENYING DEFENDANTS' MOTION TO REQUIRE VT TO REPRESENT HERSELF.

B. TRIAL COURT ERRED IN FAILURE TO FOLLOW THE LAW OF THE CASE BY SUDDENLY DISALLOWING JC/ZT TO CONTINUE TO PROSECUTE THE COMPLAINT.

C. TRIAL COURT ERRED IN FAILURE TO UPHOLD THE DOCTRINE OF RELATION BACK.

D. TRIAL COURT FAILED TO DIFFERENTIATE THE STANDINGS FOR PARTIES TO DISCOVER, FOR PARENTS TO SUE O/B/O A MINOR, AND FOR PARENTS TO REPRESENT AN ADULT CHILD.

E. TRIAL COURT ERRED IN IMPOSING

R. 1:4-5 AND R. 1:21-1(a) TO REQUIRE VT TO SIGN THE COMPLAINT AND DENYING JC/ZT'S RIGHT TO SUE O/B/O VT.

F. TRIAL COURT FAILED TO DIFFERENTIATE REPRESENTING THE INTEREST OF AN ADULT AND PARENTS' RIGHT TO SUE O/B/O A MINOR CHILD.

G. TRIAL COURT FAILED IN PROVIDING CONTINUED PROTECTION OF MINOR VT'S IDENTITY IN THIS CASE.

POINT VIII: TRIAL COURT ERRED IN LAW IN PARTIALLY DISMISSING THE 2ND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM.

A. TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION BY DISMISSING COUNT 6, 10, 11 AND 13 OF THE 2ND AMENDED COMPLAINT WITH PREJUDICE.

B. TRIAL COURT ERRED IN LAW BY HOLDING THAT CLAIM OF HOSTILE EDUCATION ENVIRONMENT WAS A "TORT CLAIM" AND UNAVAILABLE UNDER LAD.

C. TRIAL COURT ERRED IN DISMISSING COUNTS 10, 11, AND 13 FOR FAILURE TO FILE A NOTICE OF TORT CLAIM.

POINT IX: TRIAL COURT ERRED IN LAW AND ABUSED ITS DISCRETION IN REFUSING TO ENTER DEFAULT ENTRY FOR DEFENDANTS.

Having reviewed the abundant issues raised on appeal in light of the record and applicable law, we reject plaintiffs' contentions as unpersuasive and not supportable by law. We affirm the dismissal of all of plaintiffs' claims substantially for the reasons set forth by Judge Kumpf. Plaintiffs' arguments lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20111212

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