S.S. VS. CHERRY HILL PUBLIC SCHOOLS (NEW JERSEY DIVISION ON CIVIL RIGHTS)

NOT FOR PUBLICATION WITHOUT THE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-1880-17T3

S.S.,

Complainant-Appellant,

v.

CHERRY HILL PUBLIC
SCHOOLS,

Respondent-Respondent.
______________________________

Argued January 29, 2019 – Decided March 11, 2019

Before Judges Suter and Firko.

On appeal from the New Jersey Division on Civil
Rights, Docket No. ED12HE-63555.

Joel Wayne Garber argued the cause for appellant
(Garber Law, PC, attorneys; Joel Wayne Garber, on the
brief).

Eric L. Harrison argued the cause for respondent
Cherry Hill Public Schools (Methfessel & Werbel,
attorneys; Jennifer M. Herrmann, of counsel and on the
brief; Ashley E. Malandre, on the brief).
 Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Division on Civil Rights (Jason
W. Rockwell, Assistant Attorney General, of counsel;
Megan J. Harris, Deputy Attorney General, on the
statement in lieu of brief).

PER CURIAM

Complainant S.S.1 appeals the finding by the New Jersey Division on Civil

Rights (DCR) that there was no probable cause justifying her complaint that

respondent Cherry Hill Public Schools discriminated against her based on her

physical disabilities by denying her a reasonable accommodation. We agree that

DCR's finding was not arbitrary, capricious or unreasonable and was supported

by substantial credible evidence in the record.

I

S.S. was employed by respondent as an art teacher, when between 2008

and 2011, she injured her knee, shoulder and back in work related incidents,

qualifying her for workers' compensation benefits. When she was assigned

during the 2011-2012 school year to teach at two separate elementary schools,

she asked for certain accommodations: a classroom aide to assist her; an adult

chair located at each art table; and classroom teachers to deliver and pick up her

1
We have used initials for privacy purposes given the discussion herein of her
physical disabilities.
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students. She advised respondent she could not stand for more than ten minutes,

carry more than ten pounds or reach over her head with her arms. Respondent

met with her to discuss reasonable accommodations, and then provided part -

time classroom aides to assist her. Halfway through that school year, and at her

request, S.S. was transferred to teach art at the high school level, where she

previously had been assigned. She taught classes daily at both Cherry Hill East

and Cherry Hill West high schools for the rest of that school year. The schedule

allowed her forty-two minutes to drive seven miles between the schools,

followed by a forty-two minute lunch period.

For the 2012-2013 school year, respondent implemented a "modified

block scheduling format" for the high schools that included longer classes that

met less often per week. S.S. was assigned to teach at both high schools, but

the schedule now allowed only twenty-five minutes to travel between the

schools, followed by a twenty-five minute lunch period. That gave her sixty-

two minutes to travel and eat her lunch instead of the previous ninety-six. She

also had a free period two or three times per week prior to her travel period.

Another art teacher had the same schedule; when S.S. was at Cherry Hill East,

the other teacher was at Cherry Hill West and then vice-versa.

A-1880-17T3
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 In July, before this schedule commenced, S.S. emailed the Human

Resources director asking that she and the other art teacher be assigned to teach

at only one high school. She gave a number of reasons for this, but none had to

do with her physical disabilities or with any need for an accommodation. A

month later she communicated the same reasons to the principal of one of the

high schools, again without mentioning the need to accommodate her physical

handicaps. When later questioned by the DCR investigator about this, she

explained she wanted to address "professional and not personal issues relating

to the new changes" and that respondent already knew about her knee-related

disability. Respondent advised S.S. the schedule was set already and would

remain "intact for the upcoming school year."

S.S. commenced the 2012-2013 school year under the new schedule, but

complained that the commute time was inadequate, requiring her to use part of

her lunch period for travel. In October, the district's education association

president contacted respondent about updating S.S.'s Section 504

accommodation plan,2 and a meeting was held within that month. S.S. provided

a doctor's note asking respondent to make reasonable accommodations due to

2
Pub. L. 93-112, Title V, § 504, Sept. 26, 1973, 87 Stat. 394 (codified as
amended at 29 U.S.C. § 794).
A-1880-17T3
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S.S.'s "chronic knee arthropathy and recurrent [carpal] tunnel syndrome." These

included: duty assignments in close proximity to her classroom because she

could not walk long distances or climb stairs; a handicapped parking space near

her classrooms at both high schools; no "stressful repetitive tasks" such as filing

or sorting because of carpal tunnel syndrome; and continued implementation of

earlier accommodations against "lifting of heavy objects, bending, stooping,

stretching and reaching." Her doctor did not say S.S. could not travel between

schools but his note did provide: "[S.S.] has to rush between high schools in

roughly [twenty-five] minutes. This year's greatly reduced travel time is

creating excess stress upon her knee arthropathy, which is unnecessarily

exacerbating her condition. Please formulate a plan to reasonably accommodate

this issue . . . ."

S.S. presented a "504 Reasonable Accommodation" chart at the meeting

listing her disabilities and requested accommodations: she wanted to be assigned

to one high school, not two; not to have to walk long distances; a key for the

elevator; handicapped parking; a key to one of the secure doors at Cherry Hill

West or for security to leave that door unlocked for fifteen minutes; and

extended time to travel. Respondent developed a "[S]ection 504 staff

accommodation plan" for the 2012-2013 school year that S.S. would not sign

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because she complained it did not address the travel issue between the high

schools. It included three accommodations for her "chronic knee arthropathy

and recurrent carpal tunnel syndrome":

1. There will be a staff member available to open the
side doors for [S.S.] when she arrives at the second
school building. This will give her closer access to
handicapped parking.

2. [S.S.] is unable to lift objects over [ten] lbs.

3. [S.S.] will be provided elevator access.

Similar to other teachers who taught in two facilities, S.S. was relieved of her

duty assignments, which gave her two or three free periods per week prior to her

twenty-five minute travel time, followed by a twenty-five minute lunch period.

S.S. alleged there were problems with implementation of the plan. There

was not someone at the locked side door to open it for her. She complained

about not being issued a key for that door when two IT staff members had been

issued keys. She requested to be assigned to one high school. She reportedly

was using part of her lunch time for the commute.

In January 2013, petitioner filed a complaint with the DCR alleging that

respondent failed to accommodate her disabilities. She also sent a letter to

respondent the next day explaining her difficulties in detail and asking to be

assigned to one high school. She attached a doctor's note that said she had

A-1880-17T3
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"developed serious gastrointestinal symptoms as a direct result of greatly

reduced travel and lunch times on her job. Kindly formulate appropriate

accommodations." Following up on Human Resources' timely inquiry, the

principal of Cherry Hill West responded that no other teacher had a key to the

side door and that S.S.'s 504 plan had been put in place promptly. Although the

principal apparently believed that S.S. and another teacher would change

students at the end of the semester, he explained that having two teachers teach

art was beneficial for the students. Shortly after this, S.S. was advised she would

be assigned to one high school in the 2013-2014 school year.

The DCR investigated the complaint and although an investigator wrote

to petitioner in July 2016 that the investigation was nearing conclusion, a new

investigator was assigned and he conducted additional interviews and gathered

more information. Mediation was unsuccessful.

The DCR issued its decision on November 17, 2017, finding no probable

cause justifying S.S.'s complaint. The DCR noted that because S.S. and another

art teacher "essentially had parallel schedules," respondent could have granted

S.S.'s request to switch schools "without making significant changes to the

schedule mid-year." However, respondent argued that administrators developed

the class schedules "considering the individual skills, areas of expertise and

A-1880-17T3
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capabilities of each instructor as well as the classes being offered in the

upcoming school year" and that because of this, it was "usually unable to re-

staff teachers at the mid-year break."

In concluding there was no probable cause, the DCR found senior school

officials met with S.S. in a reasonably prompt manner on more than one occasion

to discuss her request for accommodations and granted a number of her requests.

The DCR found respondent "engaged in a good faith interactive process and

provided accommodations to assist [S.S.] in performing her duties." Although

respondent could have been more "communicative," it did not show a lack of

good faith. The DCR reported that its investigators were able to travel between

the schools in twelve to fifteen minutes. That S.S. did not receive all the

accommodations she requested was not the legal standard. Respondent assigned

her to one school in the 2013-2014 school year. It found that "in the specific

context of this case . . . the evidence [did] not support the conclusion that the

sequence and timing of the accommodations respondent provided failed to

reasonably accommodate [S.S.'s] disability." The DCR concluded that its

investigation did not find sufficient evidence to indicate that respondent violated

the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

There also was no evidence of "discriminatory animus."

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 On appeal, S.S. contends the DCR decision should be reversed because it

was not supported by the evidence. She argues that she did not receive a

reasonable accommodation because the solutions provided did not work. None

of the steps taken actually remedied the problems caused by the split school

assignment with the shorted commute times. She argues the accommodations

were not consistently provided nor did respondent engage in a good faith

interactive process. S.S. contends that additional fact-finding is needed to

resolve inconsistencies in DCR's no probable cause finding.

II

The scope of our review in an appeal from a final decision of an

administrative agency is limited. Russo v. Bd. of Trs., PFRS, 206 N.J. 14, 27

(2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision

should be upheld unless there is a "clear showing that it is arbitrary, capricious,

or unreasonable, or that it lacks fair support in the record." Ibid. (quoting

Herrmann, 192 N.J. at 27-28). The burden of demonstrating the agency's action

was arbitrary, capricious or unreasonable rests upon the party challenging the

administrative action. See In re Stream Encroachment Permit, 402 N.J. Super.

587, 597 (App. Div. 2018). We are not bound by the "agency's interpretation of

A-1880-17T3
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a statute or its determination of a strictly legal issue." Russo, 206 N.J. at 27

(quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

The LAD prohibits an employer from discriminating based on an

individual's disability. Victor v. State, 203 N.J. 383, 410 (2010). "It shall be an

unlawful employment practice, or, as the case may be, an unlawful

discrimination: (a) for an employer, because of . . . disability . . . to discriminate

against such individual . . . in terms, conditions or privileges of employment

. . . ." N.J.S.A. 10:5-12(a). The LAD prohibits unlawful discrimination against

any person who is or has been disabled "unless the nature and extent of the

disability reasonably precludes the performance of the particular employment."

N.J.S.A. 10:5-4.1. An employer is required to "reasonably accommodate an

employee's handicap." Royster v. N.J. State Police, 227 N.J. 482, 499 (2017);

see Victor, 203 N.J. at 423. The burden is on the employee to put the employer

on notice as to the need for an accommodation. See, e.g. id. at 414.

Reasonable accommodation "refers to the duty of an employer to attempt

to accommodate the physical disability of the employee, not to a duty on the part

of the employer to acquiesce to the disabled employee's requests for certain

benefits or remuneration." Id. at 423 (quoting Raspa v. Office of Sheriff of City

of Gloucester, 191 N.J. 323, 339 (2007)). "If an employer reasonably

A-1880-17T3
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determines that an employee because of handicap cannot presently perform th e

job even with an accommodation, then the employer need not attempt reasonable

accommodation." Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385,

397 (App. Div. 2002).

Under the LAD, a disability discrimination claim requires proof by the

employee that she:

(1) qualifies as an individual with a disability, or . . . is
perceived as having a disability, as . . . has been defined
by statute;

(2) is qualified to perform the essential functions of the
job, or was performing those essential functions, either
with or without reasonable accommodations; and

(3) that defendant failed to reasonably accommodate
[her] disabilities.

[Royster, 227 N.J. at 500 (quoting Victor, 203 N.J. at
410).]

Whether an employer has made a reasonable accommodation is evaluated

on a "case-by-case basis." N.J.A.C. 13:13-2.5(b). The employer has the

discretion to choose between "effective accommodations" and "may choose the

less expensive accommodation or the accommodation that is easier for it to

provide." Victor, 203 N.J. at 424 (quoting Kiel v. Select Artificials, Inc., 169

F.3d 1131, 1136-37 (8th Cir. 1999)).

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 Once an employee makes clear that she is requesting a reasonable

accommodation for her disability, "both parties have a duty to assist in the search

for appropriate reasonable accommodation and to act in good faith." Tynan, 351

N.J. Super. at 400 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312

(3d Cir. 1999)). Employers must make a "good faith effort" to engage in an

interactive accommodation process and to determine what appropriate

accommodations may be necessary. Victor, 203 N.J. at 424. Where an

employee alleges the employer failed to engage in the interactive process, she

must show that:

1) the employer knew about the employee's disability;

2) the employee requested accommodations or
assistance for his or 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.

[Tynan, 351 N.J. Super. at 400-01 (citing Taylor, 184
F.3d at 319-20).]

Petitioner filed a complaint with the DCR claiming that respondent did

not provide her with reasonable accommodations to address her disabilities.

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When a complaint is filed, the DCR director is required to determine, after an

appropriate investigation of the claims, whether "probable cause exist s to credit

the allegations of the verified complaint." N.J.A.C. 13:4-10.2(a). Probable

cause exists if "based upon a review of the investigative findings . . . there is a

reasonable ground of suspicion supported by facts and circumstances strong

enough in themselves to warrant a cautious person in the belief that the [LAD]

. . . has been violated . . . ." N.J.A.C. 13:4-10.2(b). Without probable cause, the

DCR will issue a final agency order closing the case. N.J.A.C. 13:4-10.2(e); R.

2:2-3(a)(2). It is against this framework that we evaluate the DCR's finding of

no probable cause.

We agree with the DCR there was substantial evidence in the record to

show that respondent engaged in good faith with S.S. in an interactive process

to address reasonable accommodations for her disabilities. Respondent

acknowledged in its answer to the DCR complaint that S.S. was a person with a

disability. She requested accommodations for the 2011-2012 and 2012-2013

school years. Respondent met with her promptly on more than one occasion to

discuss her 504 plans and to consider her requests. It granted many of these

requests including: a handicapped parking space; a part-time aide when she was

assigned to teach in elementary school; a transfer from teaching elementary

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school classes to teaching high school classes; allowing her to use a secured

door for entry that was closer to her handicapped parking spot; assigning a

person to open that door for her; not requiring her to lift any objects over ten

pounds; elevator access; and notifying her in advance that, effective for the

2013-2014 school year, she would be assigned to one high school. Because she

was required to travel between the two schools, she and other teachers were

relieved of duty assignments, which gave her an additional free period two or

three days per week.

Respondent did not grant her request to transfer to a single high school.

She does not contend the issue was not discussed or considered by respondent;

only that it was not granted. The fact that a request for accommodation is not

granted, does not establish the absence of a good faith interactive process. See

Victor, 203 N.J. at 424 (citing Taylor, 184 F.3d at 317). Respondent rejected

the mid-year transfer because, as explained by the principal, "it would interfere

with the administration's ability to assign teaching staff members to positions

and school buildings based upon the District's educational needs and student

enrollment." He explained to the DCR that staff assignment decisions were

"complicated" and "typically occur[ed] in the spring prior to each school year."

The teaching schedules were developed "by considering the individual skills,

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areas of expertise and capabilities of each instructor as well as the classes being

offered in the upcoming school year" and "because those decisions require a

balancing of many factors, the District [was] usually unable to re-staff teachers

at the mid-year break." Petitioner never refuted this.

That the principal was mistaken about the fact that petitioner and another

art teacher were not making a switch in their classes at the end of the semester

did not prove lack of good faith. See Fuentes v. Perskie, 32 F.3d 759 (3d. Cir.

1994) (a "plaintiff cannot simply show that the employer's decision was wrong

or mistaken, since the factual dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is wise, shrewd, prudent, or

competent"). S.S. did not provide any proof this was anything other than a non-

pretextual error. Respondent implemented new scheduling throughout the

district; the fact it could transfer her mid-term the year earlier did not mean the

same could apply the next.

As cited by S.S., Taylor supports the DCR's finding that respondent

showed good faith in the interactive process: it met with S.S.; considered

information she presented about her disabilities and her limitations; reviewed

her chart that listed her accommodation requests; considered these and discussed

and implemented alternatives to address her disabilities. 184 F.3d at 317.

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 We also agree with the DCR there was substantial evidence in the record

that respondent made reasonable accommodations for S.S.'s disabilities. S.S.

argues that respondent would not transfer her to a single high school even though

she said the requested change was "uncomplicated, easily achievable and had

been previously granted." However, the employer has the discretion to choose

which accommodations to give, so long as the accommodations are effective in

permitting the employee to perform her essential job functions. Victor, 203 N.J.

at 424 (quoting Kiel, 169 F.3d at 1136-37).

We see no reason why respondent could not have chosen to try to shorten

the walking distance for S.S. by allowing her to enter via a side door, which was

nearest to her handicapped parking spot, rather than change the schedule that

affected other teachers and students. Respondent certainly could consider the

security of the students and staff by limiting the keys issued for the side door

and by keeping the door locked. No teachers were issued a key to that door.

Apparently, there was not always a person there to open the door for S.S.

Respondent then assigned someone. That person suggested to S.S.—what

seemed obvious—that she call ahead so he could be there. Sometimes that

arrangement did not work out; at other times the commute cut into her lunch

period. She acknowledged to the DCR, however, that once the school schedule

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was set, it was not workable to change the schedule mid-year to give her more

time to travel between the schools. Fairly early in 2014, S.S. was advised that

in the 2014-2015 school year, she would be assigned to one high school.

Respondent had operational reasons for not transferring her mid-term that she

really did not refute. Her other requests for accommodation were implemented.

On this record, the DCR's decision that petitioner was accorded reasonable

accommodation was not arbitrary, capricious or unreasonable.

There is no reason to remand the case to the DCR so that it can "investigate

contradictory evidence" and "resolve discrepancies" with that evidence. The

issues raised by S.S. were reasonably explained. No other teachers had a key to

the secured door; the commute was seven miles between schools; respondent

explained why it did not transfer her mid-term.

After carefully reviewing the record and the applicable legal principles,

we conclude that S.S.'s further arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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