AZITA PARTOVI AND PARVIN KATIRAE PARTOVI v. FELICIAN COLLEGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1961-09T1

AZITA PARTOVI AND PARVIN KATIRAE PARTOVI,

Plaintiffs-Appellants,

v.

FELICIAN COLLEGE,

Defendant-Respondent.

________________________________

March 15, 2011

Submitted: October 18, 2010 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-022681-09.

Azita Partovi and Parvin Katirae Partovi, appellants pro se.

Genova Burns, attorneys for respondent (Alexander L. D'Jamoos, of counsel and on the brief).

PER CURIAM

Plaintiffs Azita Partovi (Azita) and Parvin Katirae Partovi (Parvin), her mother, appeal from the dismissal of their Special Civil Part complaint against defendant Felician College on motion in lieu of an answer for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e). We affirm.

Azita studied computer graphics design and received an Associates degree in Applied Sciences from Bergen Community College. Azita has a language-based disability. She transferred to defendant's Art/Graphic Design Program in the Division of Arts and Sciences for the Fall 2007 semester. Her courses there consisted of four, three-credit classes: (1) Introduction to Web Design, taught by Professor Michael J. Nyklewicz (Nyklewicz); (2) Junior Portfolio Design (Junior Seminar), taught by Professor Daniela Schl ter (Schl ter) and Nyklewicz; (3) Illustration, taught by Professor John Cichowski; and (4) Math for Financial Decision Making.

According to Azita, from the beginning of the semester, Schl ter, who is German, "showed a very intense and unusual curiosity about [her] private life and place of birth and the like." At first, Azita answered Schl ter's questions, but as they persisted throughout the semester, she stopped responding to them because they "had nothing to do with the purpose of" her education. Azita believes this contributed to Schl ter's growing "animosity" toward her.

Azita alleged that Schl ter and Nyklewicz frequently attended the art classes together and taught a few students enrolled in each of these classes. Azita referred to Nyklewicz as Schl ter's boyfriend and perceived these professors to have a "very intimate relationship, putting food in each other's mouth[,] and resorting to other inappropriate and unprofessional behaviors in front of the class." According to Azita, they were "very young" and did not "seem to have much experience in academic circles."

Azita asserted that students completed work and art assignments on defendant's computers. She alleged that her "work had sometimes been mysteriously deleted from the computer," and this required her "to repeat many hours of work that had been deleted." Azita stated that, on at least one occasion, Nyklewicz refused to give her a password to access work that had been saved on the computer. As a result, Azita complained to the department chairperson to obtain her password.

On November 12, 2007, Schl ter and Nyklewicz provided written comments and suggestions to Azita regarding her work on a "Creation Myth" project for the Junior Seminar. The professors wrote the following about Azita's performance in the seminar and her art technique:

Good start to final, but you need to choose one story to work with. Bring in new sketches each week for review. Also, consider how to present your work (mounted, framed, etc.).

For 11-19-07, bring in one finished drawing for the final, as well as materials to work in class.

Your midterm grade was a C. Your attendance and effort has [sic] been good, but the execution, as well as your technique, needs to be refined (your latest sketches show promise). Additionally, your comprehension of the art theory texts needs to be more focused (instead of quoting from the text, you need to show your interpretaition [sic] of the text in your writing and assignments). Please note that the missed field trip will affect your final grade.

Ultimately, Azita received final grades of "C-" in each of the art courses and a grade of "C" in the math course. She appealed the "C-" grades through defendant's appeals process. Nyklewicz and Schl ter allegedly presented some "na ve" drawings during the grade appeal process without her knowledge.

On January 15, 2008, Edward S. Kubersky, Ph.D., Interim Dean, Arts and Sciences Division (Kubersky), sent Azita a letter informing her that, following a review of her academic record and Fall 2007 cumulative GPA of 1.75, the Arts and Sciences Probation and Dismissal Committee was placing her on academic probation for Spring 2008. Kubersky noted that he was aware that she was appealing her fall grades but was required to notify her of her current status pursuant to defendant's regulations. While on probation, Azita could register for no more than twelve new credits and was also required to meet with her academic advisor to review her academic status. Kubersky wrote, "Failure to meet the requirements as stated in this letter and in the Catalog . . . may result in your dismissal from the College."

Parvin assisted Azita with securing a student loan in the amount of $4000, which was in Azita's name, and other financial aid in the amount of $7500. According to Azita, the tuition for the Fall 2007 semester totaled $11,500. A financial aid statement from defendant dated January 28, 2008, indicates that Azita received an estimated $11,336 in total awarded funds for the 2007-2008 academic year: $7586 in grants and $3750 in loans.

Plaintiffs filed a pro se complaint in the Special Civil Part on August 7, 2009. They alleged that Schl ter "asked a lot of personal questions every day, then with the cooperation of her boyfriend[,] [t]hey [engaged in a] conspiracy[,] and they gave [Azita] all C- C- C- and jeopardized [her] financial aid and wasted [her] money[,] $11[,]000." Further, these professors intentionally engaged in animosity and a "conspiracy, by giving [her] a na ve project to do[,] and they used that against [her] to give [her] bad grades and further damage [her], financially and academically, basically because of [Schl ter's] behavior." Moreover, "Nyklewicz was always[s] playing games" with Azita because of Schl ter, and Azita "became the victim of their discrimination, animousity[,] [sic] and conspiracy to the point that it was very damaging to [her]."

Plaintiffs further alleged that defendant "did not[h]ing about this conspiracy, as if they loved them to do that to keep [Azita] longer there to make more money." Azita asserted that her professors' conduct damaged her government financial aid and that she was in debt. She had spent "a lot of money and time" on this matter.

On or about September 21, 2009, in lieu of filing an answer, defendant filed a motion to dismiss plaintiffs' complaint with prejudice for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e). Defendant submitted a brief and attorney certification in support of its motion.

Azita filed a certification in opposition to defendant's motion with supplemental assertions and exhibits1 on or about October 5, 2009. Azita stated that she had an art portfolio that she would "present to the court during the trial for the court to determine the quality of [her] artwork." She also averred

that granting the defendant's motion will be tantamount to letting a business entity continue to misuse and abuse taxpayers['] funds and also to continue to willfully and purposefully discriminate against students and unlawfully cause the students to unnecessarily pay tuitions for an unusually extended period of time to amass its fortunes.

She stated that "[t]he net effect of . . . defendant's mischievous actions against [her] interest" led to her being "unjustifiably put on probation in the futile hope by . . . defendant that [she] would repeat those classes, enriching . . . defendant for yet a bit longer." Defendant filed a reply brief on October 15, 2009, in which it objected to Azita's certification and presented additional legal arguments.

On November 6, 2009, when defendant's motion was called for argument, plaintiffs were not present. The judge informed defense counsel that she was going to make a decision on the papers. However, plaintiffs appeared before the judge later that day to contest the motion in the absence of defense counsel. They were not sworn in at that time.

When the judge asked if Parvin was also a student at the College, she replied, "No," but that she was "a witness for the most part." Azita informed the judge that her teachers told her to "draw na ve," "the woman teacher asked [her] personal questions," and the teachers gave her grades of a "D" and "F" for no reason. The judge asked Azita whether her grade appeal had been decided, and she replied that Parvin knew the answer.

Parvin then told the judge that Azita has some learning and language-based disabilities and that defendant was aware of this. Because of Azita's disabilities and "this problem" with defendant, Parvin said that she "got involved with [defendant] and all the way through." She accompanied Azita to the grade appeal, brought her to school and picked her up, and "paid the money."

The judge told plaintiffs that because the matter involves a college they had "to go through the school system." She also told them that "if you're claiming something that they violated her rights with regards to disability, you're in the wrong courtroom, because that's in the federal courts." She noted that the professors' comments indicated that a missed field trip would affect Azita's final grade and asked if that was why plaintiffs were complaining. Parvin replied that "it's not only that[,] it's the grades, it's fraud and conspiracy and dishonesty involved."

According to Parvin, "the State wants to get involved" because it provided aid. She said that the State told her to go to court, "but they want to get involved in the future, too" because of the fraud involved. Parvin asserted that defendant wanted to enrich itself: "They have only two or three students and if they're good they keep them forever to make money." Parvin also told the judge that the situation was "heartbreaking" and a "nightmare" for her. She stated that the situation caused her cancer and that she is a single parent who has to take care of her daughter.

The judge permitted plaintiffs to submit additional documents at that time. Parvin gave the judge a copy of a transcript from Bergen Community College with an "A" grade "from the very same course," and a letter of recommendation from Azita's teacher. Parvin also brought pieces from Azita's art portfolio to court and had additional paintings that she could not get through the courthouse security.

The judge told plaintiffs that she was going to send them her decision in the mail. After considering the papers submitted in support and in opposition to the motion, she entered a written order that same day granting defendant's motion to dismiss plaintiffs' complaint with prejudice. The order stated:

This [c]ourt has heard and understands [p]laintiff's hardship. However, this is a [c]ourt of [l]aw. The Superior Court does not have the equitable power to force an academic institution to overturn its decision to dismiss a student from its program. Such matters are dealt with by the academic institution's grievance committee. On these facts, a [c]ourt of [l]aw has no choice but to dismiss [p]laintiff's [c]omplaint with prejudice for failure to state a claim upon which relief may be sought, pursuant to [Rule] 4:6-2(e).

This appeal followed. Plaintiffs contend that the order "is based on [a] complete misinterpretation and misunderstanding of the instant action" and that they were "entitled to a broad and liberal interpretation of their [c]omplaint." We have no disagreement with the latter proposition.

Our Supreme Court has cautioned that motions to dismiss pursuant to Rule 4:6-2(e) "should be granted in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). The judge's "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Id. at 746. The judge must "search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957). The motion to dismiss a complaint should not be granted "[i]f a generous reading of the allegations merely suggests a cause of action." F.G. v. MacDonell, 150 N.J. 550, 556 (1997).

A court should "assume the truth of the allegations of the complaint, giving plaintiff the benefit of all reasonable factual inferences that those allegations support." Ibid. The factual examination should be "painstaking and undertaken with a generous and hospitable approach." Printing Mart, supra, 116 N.J. at 746.

Nonetheless, "a dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. N.J. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). Further, "[c]omplaints cannot survive a motion to dismiss where the claims are conclusory or vague and unsupported by particular overt acts." Delbridge v. Office of Pub. Defender, 238 N.J. Super. 288, 314 (Law Div. 1989), aff'd o.b. sub nom., A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993), certif. denied, 135 N.J. 467, cert. denied, 513 U.S. 832, 115 S. Ct. 108, 103 L. Ed. 2d 56 (1994). "[P]leadings reciting mere conclusions without facts and reliance on subsequent discovery do not justify a lawsuit." Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998). We apply the same standard as the trial court upon review of a Rule 4:6-2(e) motion. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005).

New Jersey precedent cautions against dismissal with prejudice. The Supreme Court has emphasized that "[i]f a complaint must be dismissed after it has been accorded. . . meticulous and indulgent examination . . . , then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a plaintiff's filing of an amended complaint." Printing Mart, supra, 116 N.J. at 772. However, "the granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). Moreover, "'courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)).

Plaintiffs assert that "the [o]rder of the lower court is based on a fundamental misunderstanding and misinterpretation of the [c]omplaint" because it states that the court did not have "the equitable power to force an academic institution to overturn its decision to dismiss a student from its program." Plaintiffs argue that Azita was not dismissed by defendant and "never sought any relief to that effect." As a result, they contend that "the 'facts' on which the lower court based its decision are entirely erroneous and the lower court erred in issuing its [o]rder based on 'facts' that are untrue and have no relevance whatsoever to the facts of the instant action." Rather, defendant invited Azita to continue her education at the school on multiple occasions. Parvin also explained to the judge that "it's not only that it's the grades, it's fraud and conspiracy and dishonesty involved."

Defendant contends that the judge properly "recognized that the gravamen of [p]laintiffs' [c]omplaint is a grade appeal, which is not appropriate for judicial review." Further, defendant argues that dismissing the complaint with prejudice was proper because "there is no cause of action that would address [p]laintiffs' grade dispute." Defendant characterizes plaintiffs' grievance as a demand for a "tuition refund because they are unhappy about [Azita's] grades." However, as an institution of higher learning, defendant "has the academic freedom to make grade determinations, which New Jersey courts have deemed are not appropriate for judicial review." According to defendant, "[t]he only detrimental treatment [Azita] alleges was that she was given a 'C-' grade in the art [s]eminar," amounting merely to a grade appeal. Finally, defendant asserts that the judge's factual error regarding Azita's dismissal "is immaterial to the decision below and does not set forth any basis for appeal."

Plaintiffs quite correctly contend that the judge relied on an erroneous fact-finding that Azita had been dismissed from defendant's academic program. However, we review orders, not decisions. Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993) (holding that "appeals are taken from judgments, not from oral opinions or reasons"). "Our usual rule is that an order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it." Ibid. Thus, we may affirm an order on any ground. See Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005) (affirming the judgment dismissing a complaint "for reasons other than those relied upon by the trial judge").

However, it is clear that plaintiffs' allegations involve, at least in part, a challenge to Azita's grades, and judicial review of a college's grade-appeal process is analogous to the review of a college's dismissal of a student. Our courts defer to institutions of higher education in matters concerning discretionary academic decisions. See Mittra v. Univ. of Med. & Dentistry of N.J., 316 N.J. Super. 83, 85, 91-92 (App. Div. 1998) (affirming the grant of summary judgment in favor of the University, dismissing a student's breach of contract and tort claims following academic dismissal from the University, and finding that "[a] graduate or professional school is surely the best judge of its student's academic performance and his ability to master the required curriculum"); Napolitano v. Trs. of Princeton Univ., 186 N.J. Super. 548, 566-67 (App. Div. 1982) (declining to find a traditional contract relationship between a student and a university and recognizing the "necessity for independence of a university in dealing with the academic failures, transgressions or problems of a student"). In Mittra, we found that "[a]s long as the student is afforded reasonable notice and a fair hearing in general conformity with the institution's rules and regulations, we defer to the university's broad discretion in its evaluation of academic performance." Mittra, supra, 316 N.J. Super. at 85; see also Romeo v. Seton Hall Univ., 378 N.J. Super. 384, 393 (App. Div. 2005) (noting same), certif. denied, 185 N.J. 295 (2005).

Plaintiffs' complaint, Azita's certification, and the evidence they presented to the judge at oral argument all reference their dissatisfaction with Azita's grades. For example, plaintiffs allege that Schl ter and Nyklewicz conspired to give Azita bad grades. Azita's certification states, "I have an art portfolio that I will present to the court during the trial for the court to determine the quality of my artwork." At the hearing, Parvin tried to bring Azita's artwork through security and urged that the judge review letters of recommendation, former transcripts, and Azita's art portfolio. These are not matters subject to judicial review, and the complaint was properly dismissed to the extent that it sought such review. Mittra, supra, 316 N.J. Super. at 85.

Nonetheless, we must consider whether plaintiffs' passing references to "discrimination" state a claim under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiffs urge that, because they have no training in law, they "did not prepare their [c]omplaint as fully and comprehensively as an attorney at law," but alleged animosity, conspiracy, and discrimination. Plaintiffs further assert that discovery and trial would have revealed the extent of the harm involved. Finally, plaintiffs urge that a broad and liberal reading of their complaint would allow them to recover monetary damages.

Defendant argues that even if plaintiffs' allegations of animosity, conspiracy, and discrimination are "viewed most indulgently, . . . [p]laintiffs failed to properly plead a prima facie case to maintain a cognizable claim for which relief may be granted." Defendant contends that plaintiffs' "conclusory allegations fail to satisfy the pleading requirements under [Rule] 4:6-2." It also argues that no cause of action for "animosity" is recognized under state law.

We begin with the judge's erroneous determination that "if you're claiming something that [defendant] violated her rights with regards to disability, you're in the wrong courtroom, because that's in the federal courts." This statement was clearly erroneous in light of the LAD, but reversal is not necessarily mandated because, once again, we review orders, not decisions. Ellison, supra, 266 N.J. Super. at 78. Appellate review of dismissal under Rule 4:6-2 requires a new examination of the complaint using the same standard applied by the lower court. Donato, supra, 374 N.J. Super. at 483.

To prevail under the LAD on a claim of discrimination by a place of public accommodation,2 a plaintiff must first demonstrate that she is a member of a protected class. N.J.S.A. 10:5-12(f)(1); L.W. ex rel. L.G. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 401-02 (2007); see also Frank v. Ivy Club, 120 N.J. 73, 111 (1990) (noting the legislative intent to "eliminate discrimination in educational institutions"), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991). For the purposes of this appeal, we shall presume that Azita is a member of a protected class based on her national origin or ethnic background and her language disability.

Second, a plaintiff must also show that the defendant's actions were motivated by discrimination. Dixon v. Rutgers, State Univ. of N.J., 110 N.J. 432, 443 (1988) (finding in the employment context that a plaintiff must show that "'it is more likely than not' that the employer's actions were based on unlawful considerations" (citation omitted)). A discrimination claim requires different treatment on the basis of the plaintiff's protected status. See Frank, supra, 120 N.J. at 110-11 (finding that eating clubs associated with Princeton University discriminated against female students in violation of LAD by excluding them from consideration as members).

Last, a plaintiff must show that "others not within the protected class did not suffer similar adverse . . . actions." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005).

Although plaintiffs stated that Azita has a language-based disability, they did not allege that the disability was the basis for any discriminatory conduct or ill-treatment by defendant or that defendant acted improperly toward her or denied her an accommodation because of her disability. Viscik v. Fowler Equip. Co., 173 N.J. 1, 19 (2002) (finding that a plaintiff must affirmatively plead "failure to reasonably accommodate as a separate cause of action"). Thus, no facts support a claim of discrimination based on disability

With respect to Azita's status as a member of a protected class based on national origin, the vague assertion in the complaint about Schl ter's "questions" coupled with a conclusory allegation of discrimination does not satisfy the pleading requirements for this claim. See Glass, supra, 317 N.J. Super. at 582 (finding that "pleadings reciting mere conclusions without facts and reliance on subsequent discovery do not justify a lawsuit"). Plaintiffs did not allege any facts that indicate that Azita was treated differently than other students based on her national origin or any other protected characteristic. L.W., supra, 189 N.J. at 401-02; Frank, supra, 120 N.J. 110-11.

Like a negative job evaluation, average grades alone do not rise to the level of actionable discrimination. El-Sioufi, supra, 382 N.J. Super. at 170. While a motion to dismiss is generally granted without prejudice, the opportunity to amend the discrimination claim in this case would be futile. Notte, supra, 185 N.J. at 501. As a consequence, we are satisfied that the dismissal in this case was appropriate.

Plaintiffs also argue that, although a college has some degree of academic freedom, that freedom "does not extend to deliberately preventing a student from reaching his or her potential because of personal prejudices of two professors with little academic experience at a teaching level." They also assert some conspiracy to undermine Azita's academic performance. After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that these issues are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

1 The exhibits consisted of the following: (1) a Fall 2007 Semester Grade Report from defendant; (2) a letter dated January 15, 2008, from Kubersky to Azita regarding academic probation; (3) a Comments and Suggestions sheet completed by Schl ter and Nyklewicz on November 12, 2007, for the Junior Seminar; (4) a state financial aid letter dated October 30, 2007, reflecting approval for an unsubsidized Federal Stafford loan; (5) a financial aid statement from defendant dated January 28, 2008; and (6) a series of drawings submitted for the Junior Seminar.

2 Defendant did not assert that it is exempt from the definition of a "place of public accommodation" as a non-public, Catholic entity. N.J.S.A. 10:5-5(l) ("[No]thing herein contained [shall] apply to any educational facility operated or maintained by a bona fide religious or sectarian institution . . . .").