FRANKLIN JACK BURR, II v. BEHAVIORAL INTERVENTIONS INC.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0730-15T4
FRANKLIN JACK BURR, II,
Complainant-Appellant,
v.
BEHAVIORAL INTERVENTIONS,
INC. and NEW JERSEY DIVISION
ON CIVIL RIGHTS,
Respondents-Respondents.
_________________________________
Argued November 6, 2017 – Decided December 22, 2017
Before Judges Ostrer and Whipple.
On appeal from the New Jersey Division on
Civil Rights, Docket No. PM16MB-63000.
Evelyn F. Garcia argued the cause for
appellant (Franklin Jack Burr II, on the pro
se briefs).
Andrea M. Silkowitz, Assistant Attorney
General, argued the cause for respondent New
Jersey Division on Civil Rights (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, of counsel; Megan J. Harris,
Deputy Attorney General, on the brief).
DiOrio & Sereni, LLP, attorneys for respondent
Behavioral Interventions, Inc., has not filed
a brief.
PER CURIAM
Franklin Jack Burr appeals from a Division on Civil Rights
(DCR) administrative agency decision finding no probable cause to
credit his allegation that Behavioral Interventions, Inc. (BI)
discriminated against him because of his disability. We affirm.
Burr has Asperger's syndrome.1 In an attempt to alleviate
certain court ordered restraints stemming from a prior criminal
conviction he sought a risk assessment from BI, a private company
that contracts with the Department of Corrections and the Parole
Board to provide such services.
In 2008, Burr was convicted of third-degree endangering the
welfare of a child2 and sentenced to community supervision for
1
The Center for Disease Control defines Asperger's syndrome as
a developmental disability within the autism spectrum disorder
(ASD). People with ASD often have problems with social, emotional,
and communication skills. Facts About ASD, Autism Spectrum
Disorder (ASD), http://www.cdc.gov/ncbddd/autism/facts.html.
Further, we note in 2013 the DSM-V removed Asperger's from its own
distinct classification and replaced it with a general diagnosis
of scalable severity of autism spectrum disorder, which can be
manifested with a diverse array of symptoms and behaviors. Nat'l
Inst. of Mental Health, Autism Spectrum Disorder, Health and
Education, https://www.nimh.nih.gov/health/topics/autism-
spectrum-disorders-asd/index.shtml.
2
Burr was convicted of third-degree endangering the welfare of
a child. He appealed that conviction, and while his complaint was
pending with the DCR, we affirmed his conviction. State v. Burr,
No. A-2671-10T3 (App. Div. May 13, 2013), certif. denied,
216 N.J. 365 (2013), cert. denied,
135 S. Ct. 484 (2014), rehearing denied,
135 S. Ct. 1035 (2015).
2 A-0730-15T4
life and Global Positioning Satellite (GPS) monitoring. Burr
sought to reduce or eliminate the GPS monitoring. Burr's parole
officer advised him a favorable risk assessment could persuade the
Parole Board to remove GPS monitoring and referred Burr to BI for
a risk assessment. On a referral form sent to BI, Burr's parole
officer handwrote "Autism/Asperger's" in the designated blank for
other information.
On February 16, 2016, Burr went to BI's facility for his risk
assessment. When he arrived, BI case manager Lori Perruzza
attempted to obtain standard intake information, and an argument
ensued because Burr did not bring photo identification. When
asked if he had a license, Burr responded "do you have your
license?" After allowing him to proceed without identification,
Burr completed an intake form, and Perruzza brought him to a
private room for the risk assessment.
In the room, Perruzza sat at a table while Burr remained
standing. Perruzza asked Burr if he knew why he was there, to
which he responded he did not know. Perruzza explained he was
there for a sex offender risk assessment. According to Perruzza,
Burr became hostile, stating he is not a sex offender and
requesting proof that he is a sex offender. Also according to
Perruzza, Burr's voice and demeanor became more agitated as he
pressed her about his conviction. Perruzza later explained a
3 A-0730-15T4
combination of Burr's behavior and his standing presence made her
uncomfortable and fearful for her safety. Moreover, she was
nervous because Burr's paperwork referenced a history of violence.
Perruzza told Burr she needed to retrieve paperwork from a
nearby room and left to seek assistance from her colleagues.
Perruzza told her colleagues Burr was scaring her and making her
uncomfortable and asked if Burr could be made to leave.
BI program manager, Peter Conerly, went into the room and
asked Burr why he was agitated. Burr alleges he told Conerly he
has Asperger's syndrome and has difficulty controlling the volume
of his voice. Burr then again questioned his status as a sex
offender. Conerly told him his risk assessment would not be
conducted that day and directed Burr to leave the building. Burr
repeatedly questioned Conerly's authority to remove him. BI
assistant program manager, Robert Hyde, entered the room and also
directed Burr to leave. Burr was escorted towards the exit by
Conerly and Hyde. At a hallway door, Burr stopped walking, again
questioned Conerly's and Hyde's authority to remove him, and asked
for their credentials. Burr then reached for Conerly's
identification badge. Conerly stepped back and showed Burr his
badge. Hyde told Burr if he did not leave the building
immediately, they would call the police and Burr's parole officer
4 A-0730-15T4
would be notified. Burr walked to the lobby protesting, and left
the building.
On April 30, 2016, Burr filed a verified complaint with the
DCR, alleging BI discriminated against him because of his
disability in violation of the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. Burr maintained BI denied him services
because of his Asperger's syndrome and took no reasonable measures
to accommodate his disability, despite knowing about it.
Specifically, Burr asserted BI refused to conduct the risk
assessment because of his mannerisms, which are symptoms of his
disability.
The DCR conducted an investigation and found no probable
cause to credit the allegations of the complaint. BI is a place
of public accommodation under the LAD, but the DCR investigation
found no persuasive evidence Perruzza, Conerly, or Hyde had any
predilection to deny service to Burr or otherwise discriminate
against him because he has autism/Asperger's syndrome.
The DCR concluded the evidence did not show the accommodations
Burr sought or implied he needed were reasonable. Under N.J.A.C.
13:13-4.11(a), a place of public accommodation must make
reasonable accommodations to a patron with a disability unless the
accommodation would impose an undue burden. "A patron seeking .
. . particularized disability accommodations is required to inform
5 A-0730-15T4
management or staff that he or she needs accommodations because
of a disability, and must request or suggest specific
accommodations." The DCR noted "[a] complainant must also show
that the accommodations sought were reasonable."
Although the DCR acknowledged Burr put BI on notice that
"failure to understand questions, answering questions in an
unconventional manner and raising his voice were symptoms of his
disability," the DCR determined Burr did not notify BI what
specific "modification of policies, practices or procedures" he
requested. Specifically, none of Burr's statements advised BI
staff "he was asking them to modify their registration or
assessment process to accommodate his disability." Moreover, the
DCR concluded Burr would have been required to present expert
medical evidence to BI to show the extent of his disability, which
he did not do. Lastly, the DCR concluded even if accommodations
were reasonable, BI was motivated by legitimate reasons unrelated
to Burr's disability when it ended the assessment and asked him
to leave.
For these reasons, the DCR issued its finding of no probable
cause to support appellant's contentions. This appeal followed.
We exercise "a limited role" in the review of administrative
agency decisions. In re Stallworth,
208 N.J. 182, 194 (2011).
"In order to reverse an agency's judgment, an appellate court must
6 A-0730-15T4
find the agency's decision to be 'arbitrary, capricious, or
unreasonable, or not supported by substantial credible evidence
in the record as a whole.'" Ibid. (quoting Henry v. Rahway State
Prison,
81 N.J. 571, 579-80 (1980)). A reviewing court is limited
to determining:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Mazza v. Bd. of Trustees,
143 N.J. 22, 25
(1995) (citing Campbell v. Dep't of Civil
Serv.,
39 N.J. 556, 562 (1963)).]
Moreover, we do not substitute our own judgment for the
agency's, even though we might have reached a different result.
In re Stallworth,
208 N.J. at 194 (quoting In re Carter,
191 N.J.
474, 483 (2007)).
On appeal, Burr argues the DCR erred in determining he was
required to unequivocally declare his disability and describe the
specific required accommodations. We disagree.
The LAD prohibits discrimination on the basis of a person's
disability in a place of public accommodation.
N.J.S.A. 10:5-
12(f). "The LAD is intended to insure that handicapped persons
7 A-0730-15T4
will have 'full and equal access to society, limited only by
physical limitations they cannot overcome.'" Franek v. Tomahawk
Lake Resort,
333 N.J. Super. 206, 217 (App. Div. 2000) (quoting
D.I.A.L., Inc. v. New Jersey Dept. of Community Affairs,
254 N.J.
Super. 426, 439 (App. Div. 1992)). A place of public accommodation
is required to address physical barriers or accessibility issues
without a specific request or notice from a patron. Lasky v.
Borough of Hightstown,
426 N.J. Super. 68, 76 (App. Div. 2012).
However, notice is required when a patron claims a place of public
accommodation failed to make specific adaptations necessitated by
the patron's disability. Ibid.
There is only limited precedent discussing notice
requirements for LAD disability discrimination claims. In Lasky,
426 N.J. Super. at 68, we relied on the notice requirements of the
Americans With Disabilities Act, 42 U.S.C. § 12132, and said:
There is a clear dichotomy between, on the one
hand, those claims alleging an overall lack
of access, which require no advance notice,
and, on the other hand, those claims alleging
a failure to reasonably accommodate by making
specific adaptations necessitated by the
individual's disability, which do require
notice.
[Id. at 76.]
We added:
It is entirely reasonable and consistent with
the spirit, if not letter, of the [DCR]'s
8 A-0730-15T4
implementing regulations, to require
qualified persons with a disability requesting
a reasonable accommodation to apprise the
public entity of his or her disabling
condition and any suggestions for such
possible public accommodations.
[Id. at 80.]
Burr did not notify BI of the specific "modifications of
policies, practices or procedures" he required. N.J.A.C. 13:13-
4.11(a). While Burr's referral form indicated a condition of
Asperger's syndrome or Autism and he informed BI's staff of his
disability, Burr did not identify or advise BI what specific
accommodations he required. Furthermore, had Burr requested
specific accommodations, he did not present expert medical
evidence explaining the parameters of his disability. "[A]
plaintiff has the burden to show the extent of the mental
disability if relevant to the accommodations requested or offered.
When the extent of the disability is not readily apparent, expert
medical evidence is required." Wojtkowiak v. N.J. Motor Vehicle
Com'n,
439 N.J. Super. 1, 15 (App. Div. 2015). In reaching these
conclusions, we do not minimize Burr's condition, or the
frustration he experienced at BI; the unpleasant encounter could
have been avoided with some forethought by both parties. We simply
rule he has not established legal error on the part of the DCR.
9 A-0730-15T4
Burr's other arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and
(E).
Affirmed.
10 A-0730-15T4
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