CRAIG SASHIHARA, ETC. VS. NOBEL LEARNING COMMUNITIES, INC., ETC. (L-2227-16, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0603-18T1
    CRAIG SASHIHARA,
    Director of the New Jersey
    Division on Civil Rights,             APPROVED FOR PUBLICATION
    Plaintiff-Appellant,                   October 16, 2019
    APPELLATE DIVISION
    v.
    NOBEL LEARNING
    COMMUNITIES, INC.,
    d/b/a CHESTERBROOK
    ACADEMY,
    Defendant-Respondent.
    _____________________________
    Argued September 17, 2019 – Decided October 16, 2019
    Before Judges Yannotti, Hoffman and Currier.
    On appeal from the Superior Court of New Jersey,
    Law Division, Burlington County, Docket No. L-
    2227-16.
    James R. Michael, Deputy Attorney General, argued
    the cause for appellant (Gurbir S. Grewal, Attorney
    General, attorney; Jason Wade Rockwell, Assistant
    Attorney General, of counsel; James R. Michael and
    Farng-Yi D. Foo, Deputy Attorneys General, on the
    briefs).
    Bonnie M. Hoffman argued the cause for respondent
    (Hangley Aronchick Segal Pudlin & Schiller,
    attorneys; Bonnie M. Hoffman and Andrew M. Erdlen,
    on the briefs).
    The opinion of the court was delivered by
    HOFFMAN, J.A.D.
    In this appeal, we consider whether the Director of the Division of Civil
    Rights (the Director) has general authority to sue in Superior Court, whether
    the Superior Court may grant permanent injunctive relief on the Director 's
    complaint, and whether the New Jersey Law Against Discrimination (LAD) 1
    recognizes a claim for failure to contract with parents of a disabled child.
    Deciding each issue in the negative, the Law Division dismissed the Director's
    complaint. We affirm.
    I
    Defendant, a private, for-profit corporation, describes itself as "a
    network of more than 180 private schools in 19 states and the District of
    Columbia." Defendant owns and operates facilities at four different locations
    in New Jersey, under the trade name of Chesterbrook Academy.               These
    facilities admit children from the age of six weeks through six years in a day
    program, "before and after care," and summer camp.
    1
    N.J.S.A. 10:5-1 to -49.
    A-0603-18T1
    2
    M.M. (Jane),2 the child at the heart of this dispute, was born in July
    2011, with Down Syndrome. In January 2012, Jane's parents enrolled her at
    defendant's center in Moorestown, as part of its "Infant" program, for children
    up to twelve months old. Jane eventually progressed to the "Beginner B"
    program, for children between two and a half and three years old.
    When Jane turned three, she entered the "Intermediate" program, which
    did not provide diapering services. 3       Defendant advised Jane's mother in
    January 2015 of an April 1 deadline for Jane to be toilet trained. However,
    Jane's pediatrician advised that, due to her developmental delays, Jane "will
    not be able to fully potty train until age [five] or older." According to Jane 's
    mother, on March 25, 2015, defendant's principal informed her that Jane
    "would be dis-enrolled if not toilet trained by April 1."
    Between January 26, 2015 and March 26, 2015, defendant's employees
    changed Jane's diaper twenty-two times. Jane's parents requested defendant
    reassign Jane back to the Beginner B program; however, defendant declined
    2
    To protect the privacy of the minor child, we use initials and a pseudonym in
    place of her full name.
    3
    Defendant provided diaper-changing services to children enrolled in its
    "Infants," "Toddlers," and "Beginners" programs, but not to children enrolled
    in its "Intermediate" and "Pre-K" programs.
    A-0603-18T1
    3
    this request, and ultimately dis-enrolled Jane when she was not potty-trained
    by defendant's April 1 deadline.
    On April 26, 2015, Jane's parents filed an administrative complaint with
    the Division of Civil Rights (DCR) on behalf of Jane. The complaint alleged
    defendant discriminated against Jane based on her Down Syndrome. After
    substantiating the charges, the Director filed a complaint against defendant in
    the Law Division. Jane's parents did not join in the complaint nor were they
    named as parties.
    The Director's three-count complaint alleged defendant failed to provide
    reasonable accommodations, subjected Jane to differential treatment, and
    failed to contract with Jane's parents "because of Jane's disability."         The
    complaint demanded injunctive relief ordering defendant: 1) to modify its
    policies and procedures; 2) to cease and desist its discriminatory practices and
    policies; and 3) to undergo training and monitoring for a period o f five years.
    In addition, the complaint demanded compensatory damages for Jane and her
    parents, punitive damages for the Director, civil penalties, fees and costs.
    In December 2016, defendant filed a motion for partial dismissal for
    failure to state a claim based on three grounds: 1) the Director lacked authority
    to file an action in Superior Court for compensatory damages for non -party
    private citizens, punitive damages for himself, or penalties; 2) Jane 's parents
    A-0603-18T1
    4
    are not "aggrieved" persons under the LAD; and 3) the LAD does not
    recognize claims of discrimination arising from refusing to do business with a
    person on the basis of the person's child's disability. The motion judge granted
    the motion, based on the first and third arguments.
    Defendant later filed a motion for summary judgment on the injunctive
    relief claims, which the motion judge granted. The judge held that under the
    LAD, the Superior Court cannot issue permanent injunctive relief; instead,
    N.J.S.A. 10:5-14.1 "only allows [the Director] to seek temporary injunctive
    relief that preserves the status quo pending the outcome of an administrative
    hearing." Because the Director chose to pursue an action in Superior Court
    rather than an administrative action, and because "the circumstances that
    potentially warranted an injunction against discrimination no longer exist," the
    motion judge concluded the Director's claim for injunctive relief was moot.
    This appeal followed.
    II
    We review a motion to dismiss de novo.          We examine "the legal
    sufficiency of the facts alleged on the face of the complaint, doing so with
    liberality, and [accord] every reasonable inference to the plaintiffs." Borough
    of Seaside Park v. Comm'r of N.J. Dep't of Educ., 
    432 N.J. Super. 167
    , 200
    (App. Div. 2013) (citing Printing Mart-Morristown v. Sharp Elecs., 116 N.J.
    A-0603-18T1
    5
    739, 746 (1989)). The essential test is "whether a cause of action is 'suggested'
    by the facts." Printing Mart, 116 N.J. at 746 (quoting Velantzas v. Colgate-
    Palmolive, 
    109 N.J. 189
    , 192 (1988)).         Nonetheless, we will dismiss the
    pleading "if it states no basis for relief and discovery would not provide one."
    Rezem Family Assocs. v. Borough of Millstone, 
    423 N.J. Super. 103
    , 113
    (App. Div. 2011).
    The Director argues that two bases support his filing of this claim in
    Superior Court. One is statutory; the other concerns the DCR's authority under
    the doctrine of parens patriae. We address each argument in turn.
    A
    Pursuant to N.J.S.A. 10:5-13, "Any person claiming to be aggrieved by
    an unlawful employment practice or an unlawful discrimination may,
    personally or by an attorney-at-law, make, sign and file with the division a
    verified complaint . . . ." (emphasis added). Further, "The Commissioner of
    Labor     and     Workforce   Development,    the   Attorney   General,   or    the
    Commissioner of Education may, in like manner, make, sign and file such
    complaint." 
    Ibid.
     Likewise, "Any complainant may initiate suit in Superior
    Court under this act without first filing a complaint with the division or any
    municipal office." 
    Ibid.
     (emphasis added). However,
    At any time after 180 days from the filing of a
    complaint with the division, a complainant may file a
    A-0603-18T1
    6
    request with the division to present the action
    personally or through counsel to the Office of
    Administrative Law. Upon such request, the director
    of the division shall file the action with the Office of
    Administrative Law, provided that no action may be
    filed with the Office of Administrative Law where the
    director of the division has found that no probable
    cause exists to credit the allegations of the complaint
    or has otherwise dismissed the complaint.
    [N.J.S.A. 10:5-13]
    Because the statute specifically permits any "person" and also the Attorney
    General to file a verified complaint with the Division, and then permits any
    "complainant" to file directly in Superior Court, the Director maintains the
    statute enables him to file a complaint in Superior Court.
    Since rules of statutory construction require that different words hav e
    different meanings, the Director argues the term "complainant" must mean
    something different than "person." See GE Solid State, Inc. v. Director, Div.
    of Taxation, 
    132 N.J. 298
    , 307-08 (1993). Thus, according to the Director,
    "complainant" includes "not only individual 'persons,' but also the Attorney
    General (acting through the Director) and the Commissioners of Education and
    Labor."
    In making her decision, the motion judge looked to the Rules of Practice
    and Procedure governing "all proceedings in the Division of Civil Rights."
    N.J.A.C. 13:4-1.1. The Rules define "complainant" as "any person filing a
    A-0603-18T1
    7
    verified complaint alleging discrimination under the [LAD] . . . ." N.J.A.C.
    13:4-1.4. (emphasis added). The judge then examined the definition "person"
    contained in the LAD, which "includes one or more individuals, partnerships,
    associations,   organizations,    labor       organizations,   corporations,   legal
    representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries."
    N.J.S.A. 10:5-5(a).    Because the statutory definition did not reference the
    Director, the motion judge concluded the Director could not constitute a
    complainant.
    The Director emphasizes the definition section of the LAD does not
    precisely define "person"; instead, the statute merely uses the term "includes,"
    suggesting that other individuals or organizations could constitute "persons."
    Defendant counters that the Director cannot be considered a complainant under
    N.J.S.A. 10:5-13. Defendant argues that because an aggrieved person may file
    in the Division, the section of the statute requiring the Division to notify the
    "complainant" on a form made by the Director, of the complainant's rights
    under the act, would create a patently absurd result. See N.J.S.A. 10:5-13
    ("Upon receipt of the complaint, the division shall notify the complainant on a
    form promulgated by the director of the division and approved by the Attorney
    General of the complainant's rights under this act. . . . "). Likewise, the statute
    also would reach an absurd result by requiring the Director to seek permission
    A-0603-18T1
    8
    from his own agency before filing the claim with the OAL. 
    Ibid.
     ("At any
    time after 180 days from the filing of a complaint with the division, a
    complainant may file a request with the division to present the action
    personally or through counsel to the Office of Administrative Law."). We find
    defendant's argument persuasive.
    While the Director argues that reading the statute to prevent him from
    filing in Superior Court itself reaches an absurd result, the language of the Act
    supports this interpretation.      In fact, the language of the Act specifically
    references several instances where the Director may file in Superior Court;
    however, none apply here. For instance, the Director may file in Superior
    Court    to   seek   preliminary    injunctive   relief,   to   adjudicate   housing
    discrimination matters, and to enforce orders entered in administrative
    proceedings. See N.J.S.A. 10:5-14.1; 10:5-16; 10:5-19.
    Further, taking the statutory scheme as a whole, as we must, we
    conclude defendant's interpretation should prevail. See Chasin v. Montclair
    State Univ., 
    159 N.J. 418
    , 427 (1999) (citing Zimmerman v. Municipal Clerk
    of Twp. of Berkeley, 
    201 N.J. Super. 363
    , 368 (App. Div. 1985)). The statute
    does not provide for the Director to turn to the Superior Court in every case.
    Instead, it spells out specific instances, and this case does not constitute such
    an instance. Further, defendant's interpretation avoids the absurdity of the
    A-0603-18T1
    9
    Director needing to provide notice to himself of his rights or needing to seek
    his own permission to proceed to the OAL.
    B
    The parens patriae doctrine likewise does not provide a basis for the
    Director to file suit in Superior Court in this case. "Parens patriae refers to 'the
    state in its capacity as provider of protection to those unable to care for
    themselves.'"    Hojnowski v. Vans Skate Park, 
    187 N.J. 323
    , 333 (2006)
    (quoting Black's Law Dictionary 1144 (8th ed. 2004)). The power arises from
    the "inherent equitable authority of the sovereign to protect those persons . . .
    who cannot protect themselves . . . ." In re D.C., 
    146 N.J. 31
    , 47-48 (1996).
    Parens patriae does not apply here because it exists to help those unable
    to protect themselves.    In this case, the LAD gives those who have been
    discriminated unlawfully against the authority to protect themselves by filing
    causes of action. In fact, Jane's parents demonstrated this ability by filing their
    verified complaint with the DCR less than one month after defendant dis -
    enrolled Jane.
    The Director's complaint also alleged a cause of action based on
    defendant's failure to contract with Jane's parents due to Jane's disability. See
    N.J.S.A. 10:5-12 (l). The motion judge rejected this count on a motion to
    dismiss.
    A-0603-18T1
    10
    The LAD makes it unlawful for any person to refuse to "contract with"
    or
    provide goods, services or information to, or
    otherwise do business with any person on the basis of
    the race, creed, color, national origin, ancestry, age,
    pregnancy or breastfeeding, sex, gender identity or
    expression, affectional or sexual orientation, marital
    status, civil union status, domestic partnership status,
    liability for service in the Armed Forces of the United
    States, disability, nationality, or source of lawful
    income used for rental or mortgage payments of such
    other person or of such other person's spouse,
    partners, members, stockholders, directors, officers,
    managers, superintendents, agents, employees,
    business associates, suppliers, or customers.
    [N.J.S.A. 10:5-12(l)]
    The statute, despite listing multiple classes of persons, does not name
    "child" as one of the protected persons. The Director argues that children
    should be included based on "the broad wording used by the Legislature." The
    Director argues the legislature's use of the word "spouse" also encompasses the
    term "family." This interpretation ignores established case law that courts
    should apply a word's ordinary meaning unless there is a clear indication
    otherwise. DiProspero v. Penn, 
    183 N.J. 477
    , 492 (2005); Rubin v. Chilton,
    
    359 N.J. Super. 105
    , 110 (App. Div. 2003).
    The Director relies on J.T.'s Tire Services, Inc. v. United Rentals North
    America, Inc., 
    411 N.J. Super. 236
     (App. Div. 2010). In that case, a female
    A-0603-18T1
    11
    business owner pursued a failure to contract claim when another business
    withheld payments and threatened to withdraw its purchases unless the female
    owner engaged in a sexual relationship. 
    Id. at 238
    . But that case did not deal
    with extending section (l) liability based on one's child. Rather, it concerned
    discrimination on the basis of sex, where quid pro quo sexual harassment had
    long been illegal. 
    Id. at 241-43
    .
    The Director also cites Craig v. Suburban Cablevision, 
    140 N.J. 623
    (1995), for the proposition that "friends and family associated with an
    individual who complained of sexual harassment are also protected against
    retaliation." In Craig, the Court answered the question of whether co-workers
    have standing to sue for retaliatory discharge after the employer instituted
    sweeping changes – including firing an entire department – in response to a
    sexual harassment suit; however, Craig concerned retaliation claims, rather
    than failure to contract claims. 
    Id. at 630
    . In addition, the co-workers were
    explicitly protected under the retaliation statute because, as the complaint
    alleged, they "aided or encouraged" the employee who filed the original
    harassment suit. 
    Ibid.
     The plain language of the statute protects those who aid
    or encourage reporting; however, the Court did not expand the protected
    categories, as the Director suggests here.
    A-0603-18T1
    12
    The Director further asserts the motion judge failed to address the
    argument that the case could be viewed in the context that Jane is actually the
    "customer" defendant discriminated against. However, the Director did not
    raise this argument in the complaint, which only addressed defendant's failure
    to contract with Jane's parents.     We therefore affirm the dismissal of the
    Director's claim for failure to contract.
    III
    The Director also challenges the motion judge's summary judgment
    dismissal of his demand for injunctive relief. We review a grant of summary
    judgment de novo and apply the same standard under Rule 4:46-2(c) that
    governs the motion court. Oyola v. Xing Lan Liu, 
    431 N.J. Super. 493
    , 497
    (App. Div. 2013) (citing Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    ,
    539-40 (1995)).     We view all the evidentiary materials before the Law
    Division on the motion, including the facts and inferences therefrom, in the
    light most favorable to the non-moving party. Estate of Hanges v. Metro.
    Prop. & Cas. Ins., 
    202 N.J. 369
    , 374 (2010).
    The Director sought injunctive relief pursuant to N.J.S.A. 10:5-14.1,
    which states:
    At any time after the filing of any complaint the
    Attorney General may proceed against any person in a
    summary manner in the Superior Court of New Jersey
    to compel compliance with any of the provisions of
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    13
    this act, or to prevent violations or attempts to violate
    any such provisions, or attempts to interfere with or
    impede the enforcement of any such provisions or the
    exercise or performance of any power or duty
    thereunder.
    Specifically, the Director sought an injunction to prevent defendant from
    engaging in discriminatory conduct, require defendant to modify its practices
    and policies to ensure there is no further discrimination, and require defendant
    to submit to training and monitoring for five years.
    The Director argues the trial court's ruling that injunctive relief must
    occur during a pending administrative action rewrites the statute. However,
    the corresponding regulation supports reading the statute to apply only to
    temporary injunctive relief during a pending administrative action.          The
    regulation provides, in pertinent part:
    If the Director determines that the interests of the
    complainant may be irreparably damaged by the lapse
    of time before a hearing could be scheduled or
    between the scheduling of a hearing and the ultimate
    disposition of the matter in the Division, he or she
    shall instruct the attorney for the Division to seek such
    temporary injunctive relief in the Superior Court of
    New Jersey, pursuant to N.J.S.A. 10:5-14.1, as may be
    appropriate to preserve the rights of the complainant.
    [N.J.A.C. 13:4-11.3]
    Further, N.J.S.A. 10:5-14.1 only authorizes relief in a summary
    proceeding. Summary proceedings must conform to the procedures outlined in
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    14
    Rule 4:67-1(a), which require the action begin with the filing of an order to
    show cause and to follow certain time periods.       It also contemplates an
    abbreviated discovery schedule.    See R. 4:67-2(b).    The Director did not
    follow the enumerated procedures, and does not even argue that he did.
    Instead, the Director argues that the statute's use of the word "may"
    gives the Director authority to proceed with either a plenary action or a
    summary action. However, a plain reading of the statute does not support this
    interpretation; instead, it simply allows the Director the option to file the
    summary action or not file the summary action. See O'Connell v. State, 
    171 N.J. 484
    , 488 (2002) (holding courts "may neither rewrite a plainly-written
    enactment of the Legislature nor presume that the Legislature intended
    something other than that expressed by way of the plain language").
    Affirmed.
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    15