JOHN J. PONSI v. CLIFFSIDE PARK BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5902-07T25902-07T2

JOHN J. PONSI,

Complainant-Respondent,

v.

CLIFFSIDE PARK BOARD OF

EDUCATION,

Respondent-Appellant.

 

Argued February 1, 2010 - Decided

 
Before Judges Lisa, Alvarez and Coburn.

On appeal from the Division on Civil Rights, Docket No. EB06HE-52136-E.

Lisa S. Grosskreutz argued the cause for appellant (Parker McCay, attorneys; Ms. Grosskreutz, on the brief).

Sheldon H. Pincus argued the cause for respondent John J. Ponsi (Bucceri & Pincus, attorneys; Mr. Pincus, of counsel and on the brief).

Paula T. Dow, Acting Attorney General, attorney for respondent Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Anne Marie Kelly, Senior Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

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. 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 I: 297.1 Delusional Disorder, Persecutory Type[.] Axis II: - Obsessive-Compulsive Personality Traits[.] Axis III: NONE." Dr. Meyerhoff said:

Though Mr. Ponsi is ready to return to work and, in theory is less overtly troubled and distraught than previously, he is not repentant about the previous school problem, offers no additional information which would logically explain why a teacher and two students, in effect, conspired against him, and conveys an astonishingly comfortable, serene and tolerant attitude as he, veritably, would accept reinstatement in school, without care or concern. Probably, with the aforementioned sense of self-righteousness, he could stand before a classroom for days or even weeks, but it is likely he would unravel, at some point. If the Cliffside Park Board of Education seriously wishes to reinstate him, it is not unreasonable that he be re-interviewed, as a "returning" employee, by the same administrators he suggests have been incompetent.

When he testified, Dr. Meyerhoff acknowledged that his diagnosis was premised on the truthfulness of the allegations made by the students and teacher. Dr. Meyerhoff also acknowledged that he was never presented with proof that an investigation had been conducted. He assumed the allegations were true because they were reported to him by the Board.

Nearly three months after he requested it, Ponsi's attorney was provided a copy of Dr. Meyerhoff's report on June 28, 2005. Counsel also requested an opportunity to discuss his client's demand for reinstatement. The Board did not respond. On September 27, 2005, Ponsi's counsel again wrote to the Board concerning reinstatement. Ponsi's counsel advised the Board that Ponsi was willing to teach in middle school or even to work in a non-teaching capacity. Board counsel responded on October 3, 2005, that Dr. Meyerhoff did not agree that Ponsi was able to return to work or that he should be reinstated. On November 16, 2005, the Board denied Ponsi's request for reinstatement, relying upon Dr. Meyerhoff's report.

Ponsi then retained a second psychiatrist, Dr. Crain, to perform an evaluation, which was completed on January 9, 2006. Dr. Crain's report included the following conclusions:

[Dr. Meyerhoff] . . . diagnosed a delusional disorder, because Mr. Ponsi was not repentant, offering no additional information to logically explain why a teacher and two students would have conspired against him . . . Mr. Ponsi does not use the term, "conspiracy," with me. I do not discern any paranoid delusions. His account of the accusations made against him is plausible and does not appear to be delusional. He raises reasonable doubts as to the validity of such allegations for which he cannot honestly express remorse or logically explain. In my view, this cannot be held against him. Since he is not delusional, I cannot agree with Dr. Meyerhoff that he will "unravel" at some point when teaching in a classroom.

. . . .

Based upon a reasonable degree of medical probability, the examinee does not suffer from a harmful, significant deviation from normal mental health that affects his ability to resume teaching, disciplining, or associating with children of the age of the children that would be subject to his control in the Cliffside Park School District.

Dr. Crain reiterated at the hearing that Dr. Meyerhoff's negative comments about Ponsi's mental health status assumed the allegations against Ponsi were true. In Dr. Crain's opinion, Ponsi was able to resume his teaching responsibilities. Dr. Crain further criticized Dr. Meyerhoff's prediction that Ponsi would "unravel," as in his view there were simply no facts which supported the notion.

Ponsi worked as a per diem substitute teacher in 2006 and a long-term substitute, from November 2006 to June 2007, in another district. He worked as an untenured high school math teacher in Montclair during the 2007-2008 school year.

On judicial review of an agency decision, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The agency decision must be supported by substantial credible evidence in the record as a whole. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). It must not offend either the state or federal constitution and must be in accord with the agency's legislative mandate. See ibid. (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (citing Boyle v. Riti, 175 N.J. Super. 158, 166 (1980)).

I.

If an examination reveals that an employee has a "mental abnormality," a board of education may declare the employee ineligible for service until satisfactory proof of recovery is provided. N.J.S.A. 18A:16-4. The LAD prohibits the discriminatory discharge of an employee based on a disability, however, unless the employer "'reasonably arrive[s] at'" the conclusion that the employee's disability "'reasonably precludes the performance of the particular employment.'" Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988) (quoting N.J.S.A. 10:5-2.1 and 10:5-4.1). See also N.J.S.A. 10:5-12a (defining bona fide occupational qualification). Otherwise, the employer has a duty to reasonably accommodate a disabled employee unless the employer proves that such an accommodation imposes an undue hardship. Victor v. State, 401 N.J. Super. 596, 610 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009) (citing Potente v. County of Hudson, 187 N.J. 103, 110 (2006)). See also N.J.A.C. 13:13-2.5(b).

An employer must "initiate [a good faith] interactive process" regarding accommodations before determining that the employee's disability reasonably precludes performance. Tynan v. Vicinage 13 of Super. Ct., 351 N.J. Super. 385, 400 (App. Div. 2002) (citing 29 C.F.R. 1630.2(O)(3)). This process requires consideration of the employee's abilities and limitations as well as the feasibility of accommodations. Ibid. An employee shows that an employer failed to engage in this interactive process by demonstrating

(1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.

[Id. at 400-01 (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3rd Cir. 1999)).]

To establish a prima facie case of discrimination, a plaintiff must show

(1) plaintiff was handicapped or disabled within the meaning of the statute; (2) plaintiff was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) plaintiff suffered an adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after plaintiff had been removed from the position.

[Victor, supra, 401 N.J. Super. at 609.]

A disability discrimination case alleging a failure to accommodate an employee's disability does not require proof of the fourth element. Id. at 610. Once a plaintiff establishes a prima facie case of discriminatory discharge, the burden shifts to the employer. Jansen, supra, 110 N.J. at 382. The employer must then establish that it reasonably determined that the employee's handicap prevented him or her from working. Id. at 383. The Board contends the agency decision issued in error because Ponsi did not establish a prima facie case under LAD and therefore the burden was improperly shifted to it.

The flaw in the Board's position is its reliance on Dr. Meyerhoff's reports. If Dr. Milano's and Dr. Crain's reports are credited over Dr. Meyerhoff, as they were by the ALJ and the Director, it is clear that Ponsi established the three necessary elements of a prima facie case. Once Ponsi established he was qualified for reinstatement, the Board had an affirmative obligation to investigate whether he could be reemployed, with or without reasonable accommodation. It failed to fulfill this obligation. Dr. Meyerhoff's report contained internal inconsistencies and entirely relied on a fact the Board itself did not investigate; namely, whether the claims against Ponsi were true. Yet the Board justified its conduct based solely on his evaluation. If Dr. Meyerhoff's assumption that the allegations against Ponsi were true is discounted, his diagnosis supports Ponsi's reinstatement. Furthermore, the Board did not even follow Dr. Meyerhoff's recommendation that Ponsi be interviewed, a clear signal that they had no intention to reinstate him.

II.

The Board further contends that the Director and the ALJ erred in their conclusions that Ponsi's handicap would not prevent him from adequately performing his job as a teacher. On this point, the Board's only support, once more, is Dr. Meyerhoff's report.

The Board argues that the discretion vested in local boards of education, and the presumption that actions taken by such boards are lawful and made in good faith, are additional factors overlooked in the agency decision. See, e.g., N.J.S.A. 18A:27-4; N.J.S.A. 18A:11-1; Quinlan v. N. Bergen Bd. of Educ., 73 N.J. Super. 40, 46 (App. Div. 1962). This argument is unpersuasive.

The discretion vested in local school boards does not alone serve to cast the Board's conduct in a favorable light. The Board's election to exclude from the decision-making process favorable opinions from Ponsi's expert and from his treating psychiatrist, its failure to investigate the initial allegations, and its exclusive reliance on its own expert's report, does not constitute a good faith exercise of discretion. Ponsi submitted proof of his recovery, which Dr. Meyerhoff's report does not dispute. The Board simply chose to turn a blind eye to that information.

III.

The Board challenges the Director's award of back pay and prejudgment interest on the basis that no LAD violation was established. Since we disagree, we consider the award to be reasonable. Ponsi presented an economic expert to testify as to his lost wages and appropriate tax leveling. The Director is authorized to provide affirmative relief for a LAD violation, including an award of back pay. N.J.S.A. 10:5-17. The intent of such an award is to make the victim whole. See Goodman v. London Metals Exch., Inc., 86 N.J. 19, 35 (1981).

Prejudgment interest may be awarded as well. See Decker v. Bd. of Educ. of City of Elizabeth, 153 N.J. Super. 470, 475 (App. Div. 1977), cert. denied, 75 N.J. 612 (1978). Given the determination by the Director that the Board avoided its legal obligation to engage in the interactive process or to reasonably accommodate Ponsi, the award of back pay is unexceptional. Accordingly, we affirm both reinstatement as well as the monetary assessments.

 
Affirmed.

The Division issued an initial order on June 23, 2008, but then advised the parties on September 22 to disregard that order as it contained a mathematical error. The amounts awarded are as set forth herein.

(continued)

(continued)

14

A-5902-07T2

April 1, 2010