NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5341-12T4
ROBIN B. WOJTKOWIAK, APPROVED FOR PUBLICATION Complainant-Appellant, January 2, 2015 v. APPELLATE DIVISION NEW JERSEY MOTOR VEHICLE COMMISSION and NEW JERSEY DIVISION ON CIVIL RIGHTS,
Respondents-Respondents.
____________________________________
Argued November 10, 2014 – Decided January 2, 2015
Before Judges Sabatino, Simonelli, and Leone.
On appeal from the New Jersey Division on Civil Rights, Docket No. PL11MG-63480.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Mr. Schorr and Arykah A. Trabosh, on the briefs).
Megan J. Harris, Deputy Attorney General, argued the cause for respondent New Jersey Division on Civil Rights (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Harris, on the brief).
Nonee Lee Wagner, Deputy Attorney General, argued the cause for respondent New Jersey Motor Vehicle Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Wagner, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Complainant Robin B. Wojtkowiak appeals from the finding by
the Division on Civil Rights (Division) that there is no
probable cause justifying her complaint under N.J.S.A. 10:5-
12(f) of New Jersey's Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -42. The central issue on appeal is whether the New
Jersey Motor Vehicle Commission (MVC) discriminated against her
by requiring her to appear at the nearest MVC location to be
photographed for her driver's license. We hold that where the
extent of a LAD claimant's disability is relevant to the
reasonableness of the accommodations offered or demanded, the
claimant must establish it by expert medical evidence. Because
the extent of complainant's disability is not readily apparent
from her medical evidence, we affirm.
I.
The Division conducted an investigation of complainant's
claim. The Division's Findings of Investigation included the
following facts concerning the MVC photo requirement. In about
2002, the MVC began to require digital driver's licenses
containing a digital picture, for which all applicants had to
appear in person at the motor vehicle agency. See N.J.S.A.
2 A-5341-12T4 39:3-10f; see also N.J.S.A. 39:3-29.4. Around 2011, the MVC
instituted the Enhanced Digital Driver's License (EDDL) system
to comply with federal laws imposing more stringent requirements
for State identification cards.1
The EDDL system does not merely take photographs. Instead,
it captures and stores photographic images, and scans all of the
other photographic images in the camera system's photo database
for duplicates. The EDDL camera system is highly sensitive. It
requires a particular pose, and any deviation from that pose,
such as a tilt of the head or an exaggerated facial expression,
causes the associated computer software to indicate that the
image does not comply with the requirements. The EDDL system
then integrates the photograph with other driver's license
information and imbeds the photograph into the driver's license.
This is an integral part of the document's security features
1 The REAL ID Act of 2005 included a section on "Improved Security for Driver's Licenses and Personal Identification Cards," Pub. L. No. 109-13, 119 Stat. 311, reprinted as §§ 201 to 207 (2005). The REAL ID Act requires not only a digital photograph but also "[p]hysical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes," and "[a] common machine- readable technology, with defined minimum data elements." Historical and Statutory Notes following 49 U.S.C.A. § 30301, at 517-21. It also requires States to "[e]mploy technology to capture digital images of identity source documents so that the images can be retained in electronic storage in a transferable format," and to "[s]ubject each person applying for a driver's license or identification card to mandatory facial image capture." Id. at 519.
3 A-5341-12T4 which ensures the digitally-reproduced image is resistant to
forgery and substitution. See N.J.S.A. 39:3-10h.
Shortly before the January 31, 2006 expiration of her
driver's license, complainant wrote to the MVC. She said she
suffered from agoraphobia and could not go to the MVC to renew
her license, given the closure of the Berlin MVC location a few
miles from her home. She requested an exception from the
requirement that she appear in person to renew her license.2
The MVC responded that all applicants had to appear in
person at a motor vehicle agency to have their digital
photograph taken for the new digital driver's licenses, and that
this requirement "may not be waived." The letter advised
complainant that the MVC had opened a new motor vehicle agency
in Turnersville on June 26, 2006, which "may be accessible to
you by car." If not, the MVC added, complainant could make
arrangements to be driven by a non-profit entity providing
transportation for the disabled.
Around May 2007, the MVC also offered complainant the
option of using their Mobile Unit when it was in her area.
2 Complainant submitted a MVC medical examination report, in which her physician stated that, although she had agoraphobia and anxiety, she "has been driving [with] these conditions for [more than] 22 years without accidents," and she was "physically and mentally fit to operate a motor vehicle safely." Based on that medical report, the MVC found she was medically able to drive.
4 A-5341-12T4 However, she did not utilize it before "such mobile service
ended, allegedly for budgetary reasons, in December 2007."
In August 2012, complainant again wrote the MVC, revealing
she had been driving with an expired license almost every day
for six years. She added that she had "made huge feats driving
going further and not driving will make my progress regress."
Complainant asked for a document that would allow her to drive
and would serve as a government-issued photo ID. She complained
that without an ID, she was unable to write checks, do banking,
obtain a passport, or add her name to the deed of her home.
Complainant asserted that the MVC's requirement that she appear
at a MVC facility to have her photograph taken for license
renewal was discriminatory. She again asked for waiver of the
requirement, and offered to supply a recent photo of herself.3
Complainant provided the MVC with an August 1, 2012 letter,
addressed "To Whom It May Concern," from a doctor of osteopathic
medicine. The doctor's letter stated in full:
3 As three years passed since the expiration of complainant's license, its renewal became conditioned on her passing a vision test, a road test, and a written examination, and presenting "six points of identification." See N.J.A.C. 13:21-8.2. Over the course of the litigation, including at oral argument before us, the MVC eventually agreed to send personnel to a closer location to conduct the tests and obtain her identification information. Accordingly, we will not further discuss the testing and identification requirements.
5 A-5341-12T4 Robin Wojtkowiak is a 46 year old woman who is well known to our practice, having been our patient since 1998.
Robin has a longstanding history of agoraphobia and gets uncomfortable and anxious when out of her comfort zone. However, she is slowly progressing with exposure and desensitization techniques, and I am very hopeful for the future.
I understand there is a question of her ability to drive. There is nothing medically to contraindicate her driving, and she tells me that she is totally able to drive comfortably within her safety zone of five miles from her home. She tells me she drives everyday [sic] to stores, restaurants, gym, etc.
Therefore, I do believe that Robin is physically and mentally able to handle the responsibilities of driving short distances alone. If I can be of any further assistance to you regarding this patient's medical condition, please do not hesitate to contact my office.
The MVC responded to complainant, acknowledging her claim
that her agoraphobia "limits [her] travel to a 'comfort zone' of
five miles" was "corroborated" by her doctor's letter. The MVC
explained why it could not agree to waive the requirement. The
MVC suggested that she appear at its nearest facility in Cherry
Hill, and offered to schedule her appointment ahead of time, to
arrange for her to be the first customer of the day, and to
expedite her visit.
6 A-5341-12T4 Complainant filed a complaint with the Division charging
the MVC with discrimination. She alleged that "due to her
disability, she is unable to venture the distance to personally
visit [the MVC's] nearest office." She also alleged that she
provided the MVC with the August 1, 2012 "medical certification
of her disability and her limitations, specifically, her
inability to drive any further than five miles from her home."
She argued the MVC could have waived its photo requirements or
reactivated its mobile unit. She demanded relief including
compensatory damages.
The MVC's answer admitted that complainant had been
diagnosed with agoraphobia, and that it had received her
doctor's August 1, 2012 letter. However, the MVC denied
complainant had shown she was unable to venture the distance to
the MVC's nearest office, "leaving [her] mileage restrictions to
her proofs." The MVC again noted the nearest location was in
Cherry Hill, "approximately 11 miles away" from her home. 4 The
MVC offered to open its facility "early or late in order that
she would not be near any crowds. This accommodation has worked
well with agoraphobic [persons] who have problems with crowds."
4 The parties disparate estimates that the distances from complainant's home to the MVC's facilities provided in Cherry Hill and Turnersville were between eight and fifteen miles.
7 A-5341-12T4 The MVC's answer explained why it was necessary for
complainant to be photographed using the EDDL system. It also
reiterated the EDDL system's "lack of mobility." "An EDDL
machine costs approximately $30,000 and needs to interface with
multiple federal and state databases in order to create a
driver[']s license. It is not a stand alone camera like the
days when the mobile unit existed."
On June 6, 2013, after conducting an investigation, the
Director of the Division issued a finding of "no probable cause
to credit the allegations of the complaint." In its Findings of
Investigation, the Division correctly noted complainant was
asking the MVC either "to waive the EDDL" photograph requirement
by accepting a photograph taken with another camera, or to let
her "obtain a new license without going to the motor vehicle
office" by making the EDDL system mobile.
The Division found that for legal, technological, and
security reasons the MVC could only accept a digital photograph
taken on the EDDL camera system. The Division also found that
the EDDL system is not mobile, and currently cannot be adapted
to a mobile unit. The EDDL camera is mounted to the counter at
the MVC locations, and moving the camera would invalidate the
warranty and maintenance agreement with the vendor. Although
the MVC was looking into the possibility of creating a mobile
8 A-5341-12T4 unit capable of taking an EDDL photograph, the MVC was unable to
predict when that would be accomplished due to the complex
technology involved.
The Division concluded that "[t]he investigation did not
support Complainant's claim that she was discriminated against
because of her disability. Rather, the investigation found that
[the MVC] offered alternative access to its services." The
Division's investigation also "found that accommodating
Complainant's request . . . would mean fundamentally altering
the nature of [the MVC's] services." Because the investigation
found "insufficient evidence to support Complainant's allegation
of unlawful discrimination under the LAD," the Director ordered
the file closed. Complainant appeals.
II.
The Legislature established the Division to administer and
enforce the LAD. See N.J.S.A. 10:5-6. The Division has
"expertise in recognizing acts of unlawful discrimination, no
matter how subtle they may be." Clowes v. Terminix Int'l, Inc.,
109 N.J. 575, 588 (1988); see also Terry v. Mercer Cnty. Bd. of
Chosen Freeholders, 86 N.J. 141, 157 (1981) (noting the "unique
discretion and expertise" of the Director to effectuate the
policies underlying the LAD).
9 A-5341-12T4 Under the LAD, a person claiming unlawful discrimination
has the choice to "initiate suit in Superior Court," or file
with the Division, N.J.S.A. 10:5-13, taking advantage of the
more expeditious administrative process. See Hermann v.
Fairleigh Dickinson Univ., 183 N.J. Super. 500, 504-05 (App.
Div.), certif. denied, 91 N.J. 573 (1982). After conducting an
investigation, the Director must determine whether there is
probable cause of discriminatory conduct. N.J.S.A. 10:5-14;
N.J.A.C. 13:4-10.2(a). Probable cause exists if there is
"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). The Director's finding of no probable
cause is a final order which may be appealed to this court.
N.J.S.A. 10:5-21; N.J.A.C. 13:4-10.2(c), (e).
We accord "a 'strong presumption of reasonableness' to an
administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014).
"[T]he Appellate Division's initial review of [the Director's]
decision is a limited one. The court must survey the record to
determine whether there is sufficient credible competent
evidence in the record to support the agency head's
conclusions." Clowes, supra, 109 N.J. at 587. "'[T]his
10 A-5341-12T4 standard requires far more than a perfunctory review; it calls
for careful and principled consideration of the agency record
and findings[.]'" Ibid.
We must give "'due regard also to the agency's expertise.'"
Ibid. We may reverse the Director's decision only if "the
Director's 'finding is clearly a mistaken one and so plainly
unwarranted that the interests of justice demand intervention
and correction.'" Id. at 588. "Under that standard of review,
an appellate court will not upset an agency's ultimate
determination unless the agency's decision is shown to have been
'arbitrary, capricious, or unreasonable, or [] not supported by
substantial credible evidence in the record as a whole.'"
Barrick v. State, 218 N.J. 247, 259 (2014); In re Arenas, 385
N.J. Super. 440, 443–44 (App. Div.), certif. denied, 188 N.J.
219 (2006). We must hew to our limited standard of review.
III.
The LAD and its accompanying regulations have evolved to
protect the disabled from discrimination. Victor v. State, 203
N.J. 383, 398-407 (2010). The LAD provides in N.J.S.A. 10:5-4:
All persons shall have the opportunity . . . to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of . . . disability, . . . subject only to conditions and limitations applicable alike to all
11 A-5341-12T4 persons. This opportunity is recognized as and declared to be a civil right.
It is unlawful discrimination to refuse, withhold, or deny that
opportunity, or to discriminate in furnishing it, on account of
disability. N.J.S.A. 10:5-12(f)(1); N.J.A.C. 13:13-4.3.
The MVC does not dispute its locations are places of public
accommodation. See N.J.S.A. 10:5-5(l); N.J.A.C. 13:13-4.2.
"[A] place of public accommodation shall, to the extent
reasonable, afford goods, services, facilities, privileges,
advantages, and accommodations to a person with a disability in
the most integrated setting appropriate to the needs of that
person." N.J.A.C. 13:13-4.4(a). Generally, such a place "shall
make reasonable accommodations to the limitations of a patron or
prospective patron who is a person with a disability, including
making such reasonable modifications in policies, practices, or
procedures, as may be required to afford goods, services,
facilities, privileges, advantages, or accommodations to a
person with a disability." N.J.A.C. 13:13-4.11(a).
Accordingly, under the LAD, a claimant "must show that he
or she (1) had a disability; (2) was otherwise qualified to
participate in the activity or program at issue; and (3) was
denied the benefits of the program or otherwise discriminated
against because of his or her disability." J.T. v. Dumont Pub.
Schs., __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 26).
12 A-5341-12T4 The claimant must also show "whether the accommodation was
reasonable." Id. at 26-27; see Hall v. St. Joseph's Hosp., 343
N.J. Super. 88, 109 (App. Div. 2001), certif. denied, 171 N.J.
336 (2002).
Here, complainant showed she had a disability and was
qualified to apply for a driver's license. To establish she was
denied that opportunity because of her disability, she must show
that the accommodations offered were not reasonable and that the
accommodations demanded were "required" to afford the services
sought. N.J.A.C. 13:13-4.11(a).
Even if the accommodation sought would be required to
provide the services, modification is not required if "the place
of public accommodation demonstrates that making the
accommodations would impose an undue burden on its operation."
Ibid.; Lasky v. Moorestown Twp., 425 N.J. Super. 530, 544-46
(App. Div.), certif. denied, 212 N.J. 198 (2012). "In
determining whether an accommodation is unreasonable because it
will impose an undue burden on the operation of a place of
public accommodation, factors to be considered include" the
"overall size" of the entity, "[t]he nature and cost of the
accommodation sought," and "[w]hether the accommodation sought
will result in a fundamental alteration to the goods, services,
program or activity offered." N.J.A.C. 13:13-4.11(b)(1)-(3).
13 A-5341-12T4 Here, complainant seeks to avoid "conditions and
limitations applicable alike to all persons," N.J.S.A. 10:5-4,
namely the MVC's requirement that an applicant for a driver's
license must appear at a MVC location to be photographed using
the EDDL system. She rejects the MVC's proposed accommodations
to photograph her in that "most integrated setting." N.J.A.C.
13:13-4.4(a). Instead, she argues the MVC must bring the EDDL
camera within her five-mile self-described "safety zone," or
forego full use of the EDDL system. However, she has not shown
that the extent of her disability is such that the
accommodations she demanded were "required" to allow her to be
photographed to obtain a valid license, or that the MVC's
proposed accommodations were unreasonable. N.J.A.C. 13:13-
4.11(a).
A plaintiff claiming a mental disability has the burden to
prove that disability. Viscik v. Fowler Equip. Co., 173 N.J. 1,
16-17 (2002). "Where the existence of a handicap is not readily
apparent, expert medical evidence is required." Id. at 16; see
Clowes, supra, 109 N.J. at 597 (rejecting a plaintiff's
disability claim because there was no expert medical evidence he
was an alcoholic). Similarly, a plaintiff has the burden to
show the extent of the mental disability if the extent is
relevant to the accommodations requested or offered. When the
14 A-5341-12T4 extent of the disability is not readily apparent, expert medical
evidence is required.
It is undisputed that complainant's agoraphobia is a
"disability." N.J.S.A. 10:5-5(q); see N.J.A.C. 13:13-1.3, -4.2;
see also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d
144, 156 (2d Cir. 1998). The Division and MVC also accepted as
true her doctor's August 1, 2012 letter describing her
condition.
However, the doctor's letter did not explain which
definition of agoraphobia he adopted in diagnosing complainant.
See, e.g., Reeves, supra, 140 F.3d at 148 n.2 (defining
agoraphobia as anxiety about being in situations from which
escape might be difficult); Sanchez v. ACAA, 247 F. Supp. 2d 61,
64 (D.P.R. 2003) (fear of crowds); State v. Freeman, 223 N.J.
Super. 92, 110 (App. Div. 1988) (fear of open places), certif.
denied, 114 N.J. 525 (1989). Complainant's appellate brief
cites a definition from the website of the National Institute of
Mental Health (NIMH),5 but there is no indication that the doctor
5 "Agoraphobia involves intense fear and anxiety of any place or situation where escape might be difficult, leading to avoidance of situations such as being alone outside of the home; traveling in a car, bus, or airplane; or being in a crowded area." Agoraphobia Among Adults, NIMH, http://www.nimh.nih.gov/ health/statistics/prevalence/agoraphobia-among-adults.shtml (last visited Dec. 12, 2014). Even the NIMH website has an alternate definition of "agoraphobia [as] fear of open spaces." (continued)
15 A-5341-12T4 applied that definition, or that it fully applies to
complainant, who is admittedly capable of traveling in a car.
The doctor's failure to explain what definition he was applying
to complainant compromises her ability to show the
unreasonableness of the MVC's accommodations, such as allowing
her to appear outside normal business hours, when crowds are
absent.
More important, the doctor's letter did not support the
complaint's allegation that complainant's disability created an
"inability to drive any further than five miles from home." 6
Instead, the letter simply stated that complainant was "totally
able to drive comfortably within her safety zone of five miles
from her home," and that she "gets uncomfortable and anxious
when out of her comfort zone." Discomfort and anxiety do not
necessarily equate to total inability. Moreover, the doctor
added that complainant "is slowly progressing with exposure and
desensitization techniques, and [he was] very hopeful for the
(continued) E.g., Panic Disorder, NIMH, http://www.nimh.nih.gov/ health/topics/panic-disorder/index.shtml (last visited Dec. 12, 2014). 6 The doctor's letter also does not support the assertions in complainant's appellate brief that she gets "extremely ill" and "suffers extreme panic attacks when out of her safety zone, and is therefore incapable of traveling more than five (5) miles from her home."
16 A-5341-12T4 future," which suggest that complainant could progress to drive
slightly further on one occasion to be photographed.
Equally important, the doctor, in reaffirming complainant's
ability to "driv[e] short distances alone," did not explicitly
address her ability to be transported by another driver. The
doctor did not state whether similar discomfort and anxiety
could or would be likely to arise for her as a passenger, or
whether removing the challenges and worries of driving would
lessen or remove her discomfort or anxiety. Moreover, the
doctor did not address whether any discomfort and anxiety as a
passenger would pose a safety concern, whether they would be
addressable with medication, or whether they would render her
unable to be transported as a passenger. Thus, the doctor's
letter was inadequate to support the complaint's allegation that
complainant was "unable to venture the distance necessary to
personally visit [the MVC's] nearest office."
In sum, the doctor's letter failed to establish that
complainant was incapable of driving, or being driven, for more
than five miles on a single occasion. Even if it could be
argued that such a conclusion was "implicit in the letter, we
see no reason why, if that were the doctor's opinion, he could
not have simply said [so] in unequivocal language." Heitzman v.
Monmouth Cnty., 321 N.J. Super. 133, 141 (App. Div. 1999).
17 A-5341-12T4 Accordingly, the doctor's letter "falls far short of the kind of
expert medical opinion required to support a handicap
discrimination claim." Ibid. (rejecting a disability
discrimination claim because of the vagueness of the letter from
plaintiff's doctor about the disability).
Indeed, complainant herself was less than definitive in
asserting the effect of her disability on her ability to drive.
In 2006, she told the MVC that she was comfortable driving
within her boundaries, but that she did venture further on some
days. In 2012, she stated that the nearest MVC office was
beyond her boundaries, but that she had "made huge feats driving
going further." She asked to be exempted from the driver's test
"[s]o if and when I do make it to the nearest [MVC], I could
just renew." She later informed the Division's investigator
that she "may be able to gradually increase her ability to go
beyond her five mile limit." In any event, her assertion is
inadequate to prove the extent of her disability because it is
not sufficiently supported by expert medical evidence. See
Clowes, supra, 109 N.J. at 597-98.
The LAD, unlike the federal statutes barring discrimination
against the disabled, does not "require that the disability
substantially limit a major life activity." Victor, supra, 203
N.J. at 410 n.11; Tynan v. Vicinage 13 of the Superior Court,
18 A-5341-12T4 351 N.J. Super. 385, 397 (App. Div. 2002). Nonetheless, the
lack of sufficient expert medical evidence that complainant was
incapable of driving, or being driven, more than five miles on a
single occasion is crucial in considering the reasonableness of
the accommodations offered and demanded. See Tynan, supra, 351
N.J. Super. at 398 (noting that, by defining disability broadly,
the Legislature focused scrutiny on the accommodations "in light
of whatever physical or mental limitations the [complainant]
presents"). Absent such expert medical evidence, complainant
cannot show that the MVC failed to "make reasonable
accommodations to the limitations of a patron or prospective
patron who is a person with a disability." N.J.A.C. 13:13-
Similarly, without sufficient expert medical evidence, she
cannot show that either of the accommodations she demanded were
"required to afford" her the photographic services and driver's
license she sought. N.J.A.C. 13:13-4.11(a), (b). First, she
asserted the MVC had to remove the mounted EDDL camera and
transport it to a location within five miles of her home to take
her photograph, a process that risked damaging or disabling the
expensive camera and voiding its warranty and maintenance
agreement. Second, she contended the MVC had to allow her to
substitute a digital photograph taken with a regular camera,
19 A-5341-12T4 which would not possess the sensitivity of the EDDL camera.
Both alternatives also posed the problem of uploading a
photograph taken remotely into the EDDL system to allow its
computers and software to determine whether the photograph met
its requirements, to compare it to the photographs in the EDDL
database, and to imbed the photograph into the license with the
integrated information.
Where employment discrimination is alleged, the LAD "does
not cloak the disabled employee with the right to demand a
particular accommodation," and "not every accommodation demand
is a reasonable one." Victor, supra, 203 N.J. at 423. If more
than one reasonable accommodation is available, an employer "has
the ultimate discretion to choose between effective
accommodations, and may choose the less expensive accommodation
or the accommodation that is easier for it to provide." Id. at
424 (internal quotation marks omitted). The same is true for a
place of public accommodation. See Estate of Nicolas v. Ocean
Plaza Condo. Ass'n, 388 N.J. Super. 571, 588 (App. Div. 2006).
Here, complainant failed to show that the accommodations
offered by the MVC were unreasonable. Therefore, we need not
and do not determine whether either of the alternate
accommodations complainant demanded would be: (1) possible given
any technological and budgetary constraints; (2) compatible with
20 A-5341-12T4 security requirements; (3) permissible under federal and New
Jersey law; or (4) reasonable if she had shown her disability
rendered her incapable of driving, or being driven, more than
five miles on a single occasion to be photographed.
We also need not resolve the issue raised by the parties
and the Director, namely, whether an accommodation that permits
complainant to obtain a driver's license without having her
photograph taken at a MVC location would "impose an undue burden
on the operation of" the MVC. See N.J.A.C. 13:13-4.11(a), (b).
We acknowledge that such a decision could have substantial
consequences for complainant and the MVC, that it may arise in
the future for her or other plaintiffs, and that determining
whether places of public accommodation are required to take
their services to the disabled is a question of great import.
However, we decline to resolve that question in this case
"because, in the end, this record is a poor vehicle in which to
find the definitive answer to that important question." Victor,
supra, 203 N.J. at 422-23, 425 (declining to resolve an
important legal question regarding disability, despite the
plaintiff's "long medical and psychological history that
qualifies him as disabled," because there was no medical
evidence of the particular disability on which his claim
rested).
21 A-5341-12T4 Accordingly, "[t]he Director's finding of no probable cause
was not an abuse of discretion." Sprague v. Glassboro State
Coll., 161 N.J. Super. 218, 225 (App. Div. 1978). In reaching
this conclusion under our standard of review, we by no means
intend to minimize the genuine difficulties encountered by the
many persons who suffer from agoraphobia. Nor do we minimize
their rights to be protected from discrimination. Our
conclusion affirming the Director's final agency decision is
based upon the specific record in this matter. We hope that the
analysis in this opinion will provide some guidance in the
future, including to disabled persons seeking to substantiate
their need for reasonable accommodations with sufficient
competent proof.
IV.
Complainant also challenges the Division's investigation.
The LAD's discovery procedures, like the probable cause
determination, is designed to "enabl[e] the agency to deal with
large numbers of complaints as swiftly as possible." Id. at
226. After a complaint is filed, the Director "shall cause
prompt investigation to be made." N.J.S.A. 10:5-14; N.J.A.C.
13:4-4.1(b); see N.J.S.A. 10:5-8(d), (h). The Director may
"conduct such discovery procedures . . . as shall be deemed
necessary by the [Director] in any investigation." N.J.S.A.
22 A-5341-12T4 10:5-8(i). This "discretionary authority to investigate" is
reviewable for an abuse of discretion. Gallo v. Salesian Soc'y,
Inc., 290 N.J. Super. 616, 650 (App. Div. 1996); see Howard Sav.
Inst. v. Francis, 133 N.J. Super. 54, 60 (App. Div. 1975).
Here, the Division interviewed complainant. The Director
then assigned an investigator who offered to receive written and
oral information from complainant. The Division requested and
obtained documents and information from the MVC, including the
MVC's EDDL photo capture standards. The investigator also
interviewed the MVC's information technology (IT) technicians.
They explained why the EDDL Image Capturing System was not
mobile and why taking the EDDL picture at a MVC location was
necessary to comply with the facial recognition requirements.
The investigator confirmed that the EDDL equipment was bolted
down, and witnessed a demonstration of its use. The
investigator reported this information to complainant, who had
no response other than to demand an exception for herself. The
investigator found complainant could not provide any pertinent
information which would alter the outcome of the investigation.
Complainant argues that the investigator should have asked
why the MVC could not have accepted a digital photo so long as
it was in JPEG format, or why the EDDL system cannot be mobile.
In fact, the investigator inquired into those issues.
23 A-5341-12T4 Complainant also asserts the investigator should have asked
the size of the MVC's budget, how much the MVC spends in
accommodating disabled persons, and how much it would cost to
provide the accommodations complainant requested. There is no
indication she asked the investigator to ask those questions.
Moreover, those questions pertain to the "undue burden" inquiry,
and thus would not have changed the outcome, given complainant's
failure to show her disability required those accommodations.
In any event, if complainant wished to control the
investigation, she "had the alternative right to file a
complaint in the Superior Court which would normally culminate
in a full-scale plenary trial." Sprague, supra, 161 N.J. Super.
at 225 (citing N.J.S.A. 10:5-27); see also N.J.S.A. 10:5-13.
"However, having chosen to pursue her grievance
administratively, that chosen remedy is exclusive while it is
pending and when it has been concluded." Hermann, supra, 183
N.J. Super. at 504.
Complainant proffers additional documents in her appellate
appendix. She attaches advertising from the website of
MorphoTrust USA, the manufacture of EDDL, stating its EDDL
camera tower weighs 24.5 pounds, is mountable with a "bolt down
option" that "[s]ecures critical equipment," and is connected to
computer monitors and data storage units using biometric
24 A-5341-12T4 identification and automated search engine software. She also
includes an internet page about Florida's Licensing on Wheels
mobile program which does not specify what photographic system
is used in Florida's mobile units.
There is no indication that complainant supplied those
documents to the Director, even though she was given an
opportunity to do so during the investigation. Moreover, those
documents, and the news clippings indicating that the MVC
uploaded many millions of photographs into its database, do not
necessarily impugn the Director's investigation or conclusions.
In any event, complainant's claim fails because she did not
provide sufficient expert medical evidence of the extent of her
V.
Accordingly, we affirm the Director's finding of no
probable cause. We add the following thoughts.
First, we must express our concern that complainant
admittedly drove without a valid driver's license frequently
from 2006 to 2012, and may be continuing to drive without a
valid license. "No person shall drive a motor vehicle on a
public highway in this State unless the person . . . is in
possession of a . . . basic driver's license" issued to her in
25 A-5341-12T4 accordance with the motor vehicle laws. N.J.S.A. 39:3-10. We
in no way condone complainant's driving with an expired license.
Second, our decision is based on the expert medical
evidence before the Division, and addresses only the allegations
of discrimination predating the decision of the Director.
Because the need for a driver's license is continuing in nature,
complainant is free to make a new request to the MVC to
accommodate her disability, if it is supported by new and
materially different expert medical evidence showing her
disability at that time requires greater accommodation than the
MVC offered in this litigation. The MVC would be obligated to
consider such a request, and any subsequent refusal to provide
"reasonable accommodations to the limitations of" complainant's
disability may be actionable under the LAD and its regulations.
See N.J.A.C. 13:13-4.11(a). Nothing in our opinion should be
read to foreclose such a future request, relieve the MVC of the
obligation to consider whether additional accommodations are
required, or preclude an allegation of subsequent discrimination
under the LAD. Nor does this opinion remove the need for the
Division to address thoroughly any challenge to the
reasonableness of any accommodations and any claim of an undue
burden, based on the then-current technology, costs, and budgets
26 A-5341-12T4 that may exist at that time.7 The Deputy Attorney General
representing the Division acknowledged at oral argument such a
request would not be inappropriate because technology and
complainant's medical condition can change.
We recognize that N.J.S.A. 10:5-27 provides that the
Division's final determination "shall exclude any other action,
civil or criminal, based on the same grievance of the individual
concerned." However, a claim of subsequent acts of
discrimination, supported by new and materially different expert
medical evidence of complainant's limitations at that time,
would not pose the same grievance.
Affirmed.
7 At oral argument the Deputy Attorney General representing the MVC indicated that the agency has made recent appropriation requests for the resumption of mobile units, but that such funding has not been authorized to date.
27 A-5341-12T4