UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

OMARI GEORGE, a minor; DARYL 

GEORGE and BRENDA BARNES-GEORGE, 

individually and as Parents and Natural 

Guardians of Omari George,

Plaintiffs,

v.

BOARD OF EDUCATION OF THE 

TOWNSHIP OF MILLBURN; RICHARD 

BRODOW, personally and in his Official 

Capacity; WILLIAM MIRON, personally and 

in his official capacity; and MICHELLE 

PITTS, personally and in her Official Capacity,

Defendants.

Civ. No. 2:11-cv-00043 (WJM)

OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs O.G., Daryl George, and Brenda Barnes-George allege race-based 

discrimination at Millburn High School. Plaintiffs further allege that the Board of 

Education of the Township of Millburn (the “Board”) violated O.G.’s due process rights 

when it expelled O.G. from school. The four Defendants—the Board and three Millburn 

school administrators—each move for summary judgment on all claims pursuant to Federal 

Rule of Civil Procedure 56. There was no oral argument. Fed. R. Civ. P. 78(b). For the 

reasons set forth below, Defendants’ motion is GRANTED IN PART, and DENIED IN 

PART.

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I. BACKGROUND

There are three Plaintiffs in this case. Plaintiff O.G. was formerly a student at 

Millburn High School. Plaintiffs Daryl George and Brenda Barnes-George (the “Plaintiff 

Parents”) are O.G.’s parents.

There are four Defendants in this case. The first Defendant is the Board. The other 

Defendants (the “Individual Defendants”), who are named as Defendants in their official 

and personal capacities, all worked in the Millburn School System. Defendant Dr. Richard 

Brodow was Millburn’s Superintendent of Schools; Dr. William Miron was the Principal 

of Millburn High School; and Dr. Michelle Pitts was the Vice Principal of Millburn High 

School. 

Unless otherwise noted, the following facts are undisputed. O.G. is an AfricanAmerican male. Defendants’ Statement of Material Facts Not In Dispute (“DSM”) ¶ 1, 

ECF No. 56-3. O.G. enrolled at Millburn High School in September 2007. Id. During his 

time at Millburn High, O.G. was subjected to racist epithets and, at times, violence. 

Following an altercation that occurred on January 9, 2009, O.G. was expelled from school. 

O.G. was then home-schooled. O.G.’s expulsion was ultimately commuted to a 

suspension, and O.G. was allowed to return to Millburn High School. After graduating, 

O.G. went on to college at Morehouse University.

A. Incidents Involving O.G. Prior to January 9, 2009

1. Freshman Year

In March 2008, when he was a freshman, O.G. was involved in a physical altercation 

with a junior who was Asian-American (the “Junior”). Id. ¶ 4. There is no evidence that 

O.G. and the Junior were involved in any prior or subsequent altercation. Id. ¶ 7. During 

the altercation, O.G.’s nose was broken. Plaintiffs’ Counterstatement of Contested 

Material Facts (“PSM”) ¶ 6, ECF No. 57-2. According to O.G., the Junior said he would 

“beat [O.G.’s] black ass.” Id. ¶ 4. As a result of the altercation, the Junior was suspended 

for two days and O.G. was given five days detention. Id. ¶ 7. Though the incident with 

the Junior occurred in 2008, an accident report was not written until March 11, 2009. Id.

¶ 10. At her deposition, Vice Principal Pitts testified that, besides from this March 11, 

2009 accident report, there are no records that “support any additional claims of race-based 

harassment, intimidation, discrimination or bullying during O.G.’s freshman year.” DSM

¶ 8. However, O.G. testified that there were other occasions during his Freshman year 

when he was subject to race-based bullying. Specifically, O.G. testified that his friends 

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(and apparently O.G., as well) were called names such as “wigger” and “wangster.” O.G. 

Dep. Tr. at 37:14-38:19, ECF Nos. 57-4 & 57-5. O.G. testified that he would report these 

incidents to Dr. Pitts and fill out an incident report. Id. at 38:22-25. O.G. also testified that 

he did not know of any discipline handed down based on the incident reports he provided 

to Dr. Pitts. Id. at 40:9-12. 

2. Sophomore Year Through January 8, 2009

Vice Principal Pitts testified at her deposition that she could not recall any reported 

incidents of race-based harassment or bullying involving O.G. from the beginning of 

O.G.’s sophomore year until January 8, 2009. Pitts Dep. Tr. at 71:15-20, ECF No. 56-5. 

O.G. testified differently. He said that in his Sophomore year he reported to Dr. Pitts that 

another student told him, “get out of the way, blackie.” O.G. Dep. Tr. at 48:19-15. O.G. 

testified that on another occasion, this same student stopped him in the hall and said, “yo, 

yo, blackie.” Id. at 49:17-50:12. O.G. testified that the student took his ipod, told O.G. 

that he didn’t “listen to nigger music anyway,” and proceeded to drop the ipod on the 

ground. Id. O.G. testified that he reported this incident in an incident report. Id. at 50:9-

15. O.G. testified that Dr. Pitts said she would do a full investigation but O.G. never heard 

of any discipline based on the investigation. Id. at 51:21-52:6. O.G. testified that on 

another occasion, the same student called him a “wigger.” Id. at 52:7-16. Additionally, 

O.G. testified that Millburn High School students accosted him at a diner one weekend and 

called him a “tough nigger.” O.G. believes his father wrote a letter informing the school 

about the incident. Id. at 55:17-58:16. 

B. January 8, 2009 Incidents

On January 8, 2009, O.G. was involved in an incident where two of his friends were 

pushed by upper-classmen who uttered racial comments. DSM ¶ 11. According to O.G., 

one of the aggressors called O.G. “nigger” and said that he “[didn’t] like black people in 

[his] hallway.” PSM ¶ 23. According to O.G., this student said he would beat O.G.’s 

“black ass.” Id. ¶ 23. O.G. testified that the student then shoved O.G. and slammed O.G.’s 

head into a locker. O.G. Dep. Tr. at 64:8-10. Vice Principal Pitts’s notes reflect a different 

story than the one offered by O.G. According to Vice Principal Pitts’s notes, which are 

undated, “the senior who hit [O.G.] made a rude remark which was in no way racist.” 

Motion for Summary Judgment (“MSJ”), Ex. I, ECF No. 56-12.

Later in the day, O.G. was again confronted by the upper-classmen involved in the 

earlier incident. DSM ¶ 12. O.G. testified that the upperclassmen pushed O.G.’s friend, 

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and that they also punched and scratched O.G. Id. Two school staff members, Mr. Schilp 

and Ms. Osborne, were present during the altercation. Id. ¶ 13. In a written statement 

dated roughly six months after the fact, Mr. Schilp wrote that he did not see the beginning 

of the fight but he did observe O.G. and another student grappling. Id. ¶ 14; MSJ, Ex. E, 

ECF No. 56-8. Mr. Schilp stated that he did not see the beginning of the fight. He further 

stated that he did not hear any racial comments uttered. Id. Like Mr. Schilp, Ms. Osborne 

also wrote a statement about the events roughly six months after it occurred. MSJ, Ex. F, 

ECF No. 56-9. In her statement, Ms. Osborne said that she saw O.G. throw his book bag 

down and proceed to hit another student. While Ms. Osborne reported that another student 

involved in the altercation said to O.G., “[y]ou’re fucking dead, faggot,” Ms. Osborne did 

not report hearing any racial insults. Id.

When this second incident was broken up, Vice Principal Pitts told O.G. to get 

medical attention in the nurse’s office. PSM ¶ 31. O.G. returned from the nurse’s office

and told Vice Principal Pitts what happened. Vice Principal Pitts said she would 

investigate. Id. ¶ 32. 

Later in the day, O.G. and his friends were confronted by a different group of 

students. This group of students called O.G. a “nigger pussy,” said they would “beat 

[O.G.’s] black ass,” and prevented O.G. from entering a classroom. DSM ¶ 16; PSM ¶ 34. 

There was no physical contact, but a staff member named Ms. Cohen separated the 

students. Id. In a statement written more than five months after the fact, Ms. Cohen stated 

that she did not hear the other student say anything to O.G. Id. ¶ 18; MSJ, Ex. G, ECF No. 

11. Instead, Ms. Cohen heard O.G. shout at the other student. Id. 

The students involved in this incident filled out incident reports reflecting the use 

of racially charged language. Opposition to Defendants’ Motion for Summary Judgment, 

Exs. G-I, ECF Nos. 57-9, 57-10, 57-11. Asked how he could have handled the situation 

differently, one of O.G.’s friends wrote, “I don’t know happened too many times before.” 

ECF No. 57-9. Vice Principal Pitts testified that when she spoke with students involved in 

the incident, they admitted to using the word “pussy” but denied using the word “nigger.” 

PSM ¶ 36. Without calling any parents, Principal Miron and Vice Principal Pitts decided 

to schedule a mediation session for the next morning. Id. ¶ 39. 

C. January 9, 2009 Mediation

On January 9, 2009, Principal Miron and Vice Principal Pitts convened a mediation 

session with O.G. and some of the students involved in the previous day’s altercations. 

During the session, the students voiced their grievances. According to Principal Miron’s 

notes, the students were told to “stop pushing buttons.” MSJ, Ex. J, ECF No. 56-13. 

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Principal Miron’s notes indicate that the students at the session were told to see 

administrators for any individual discussions. Id. The notes also indicate that the students 

were advised of a “zero tolerance” policy regarding bullying. Id. Finally, the notes indicate 

that the students agreed to avoid confrontations and immediately report any “further 

occurrences.” Id. No students were disciplined as a result of the mediation. PSM ¶ 40. 

According to his notes from the mediation, Principal Miron learned at the mediation 

that “these 2 groups have been feuding for months without reporting it.” MSJ, Ex. J. 

Similarly, Vice Principal Pitts’s account of the mediation session states that “the soph 

[including O.G.] indicated that the seniors had been bothering them for a while but they 

neglected to report anything to the administrators.” MSJ, Ex. I, ECF No. 56-12. O.G. 

takes issue with these statements to the extent they suggest that he did not report prior 

bullying. Plaintiffs’ Response to Defendants’ Statement of Material Facts ¶ 22, ECF No. 

57-2.

D. January 9, 2009 Incident Involving a Baseball Bat

At some point on January 9, 2009, the day of the mediation, O.G. called his father 

and told him about threats from other students. DSM ¶ 23. O.G. confirmed that his father 

and brother would come to school at the end of the day to watch O.G.’s wrestling practice. 

Id.

At the end of the school day, O.G.’s father and brother arrived at the school. O.G. 

and his brother encountered the students involved in the incident from earlier in the day 

where O.G. was allegedly called a “nigger pussy.” Id. ¶ 24. A heated exchange followed. 

Id. ¶ 25. O.G. claims that he was told, “we’re going to kill you niggers.” O.G. Dep. Tr. at 

117:9-118:1. O.G. and his brother proceeded to go to their father’s car, which was located 

in the school parking lot. DSM ¶ 25. O.G.’s brother took a baseball bat out of the trunk. 

O.G. and his brother then walked back towards the school and the people who were 

involved in the heated exchange from moments earlier. Id. ¶¶ 25-26. O.G. testified that 

he and his brother headed back towards the school because they were being chased by the 

other students and O.G.’s father told them not to get trapped in their car. O.G. Dep. Tr. at 

121:9-17. 

When O.G. and his brother headed back toward the school, they got into a fight with 

the other students. One student was hit by the baseball bat. DSM ¶ 27. O.G. maintains 

that he never touched the bat. PSM ¶ 47. At some point, O.G.’s father became involved 

in the fight. DSM ¶ 29. When the fight broke up, O.G., O.G.’s brother, and O.G.’s father

got into their car and tried to leave the parking lot, but they were blocked by people who

stood in the car’s path. Id. ¶ 30. An ambulance came for the student who was hit with the 

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bat. Id. ¶ 31. Millburn police arrived on the scene and took O.G., O.G.’s brother, and 

O.G.’s father to the police station. Id. ¶ 32.

E. O.G. Is Disciplined

1. The Board Expels O.G.

On January 9, 2009, after the fight involving the baseball bat, Principal Miron and 

Superintendent Brodow wrote O.G.’s father a letter informing him that O.G. was 

suspended for nine days beginning on January 12, 2009. Opposition to Defendants’ Motion 

for Summary Judgment (“Opp.”), Ex. L., ECF No. 57-14. No disciplinary actions were 

taken against the other students involved in the incident with the baseball bat. PSM ¶ 49. 

On January 13, 2009, Superintendent Brodow wrote a letter to O.G.’s father informing him 

that he had recommended that the Board either expel O.G. or suspend O.G. for one year. 

Opp., Ex. O. 

A hearing before the Millburn Board of Education was scheduled for January 21, 

2009, well within the 30 day window for hearings provided by New Jersey law. DSM ¶ 

35; N.J.A.C. 6A:16-7.3(a)(10)(iii) (requiring a hearing within 30 days of a student’s 

suspension). The January 21, 2009 hearing was adjourned so O.G. could retain counsel. 

DSM ¶ 35. The hearing was rescheduled for February 2, 2009. Id. ¶¶ 35-36. The hearing 

was then adjourned a second time, this time because O.G.’s lawyer had a conflict and O.G. 

needed to secure replacement counsel. Id. ¶ 36. The hearing was rescheduled for February 

11, 2009. Id. ¶ 37. 

On February 11, 2009, the Board convened to hear O.G.’s case. Superintendent 

Brodow recommended expelling O.G. Superintendent Brodow did not recommend 

suspending O.G. PSM ¶ 54. O.G. requested a third adjournment, arguing that the hearing 

should be put off until the resolution of criminal charges arising out of the baseball bat 

incident. Id. ¶ 37. O.G. wanted the hearing adjourned so that he could testify without 

waiving his Fifth Amendment privilege. The Board President agreed to adjourn the hearing 

if O.G. agreed not to bring a civil suit against the Board. Id. ¶ 38. O.G. refused, and the 

hearing proceeded. Id. ¶ 39. Ten witnesses testified. Id. ¶ 40. O.G. was not among them. 

The witnesses included students, parents, and administrators. Id. The witnesses were 

subject to cross examination. Id. ¶ 41. 

Witnesses testified that when O.G. exited the school on January 9, 2009, O.G. and 

his brother threatened the other students. Board Hearing Tr. at 19:1-10, 41:24-42:23, ECF 

Nos. 57-18, 57-19. There was testimony that after an exchange of words, O.G. and his 

brother went to their father’s car, that O.G.’s brother grabbed a baseball bat, and that the 

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brothers then headed back toward the school. The student who was hit with the bat testified 

that O.G.’s brother hit him and that O.G. then grabbed him from behind. Id. at 19:20-

20:11. After hearing this testimony, the Board voted to expel O.G. Id. ¶ 42. O.G. was 

then home-schooled. O.G. Tr. at 137:19-22.

 

2. O.G. Appeals and Succeeds In Getting Expulsion Converted

Into Suspension

On May 28, 2009, O.G. filed a verified petition of appeal with the Commissioner of 

Education of New Jersey. MSJ, Ex. O, ECF No. 56-19. In that petition, O.G. argued that 

the Board “acted arbitrarily, capriciously, and against the weight of the evidence by 

expelling O.G. and have otherwise violated O.G.’s rights under the State and Federal 

Constitutions by depriving him of a public education at Millburn High School.” Id. A 

hearing was scheduled before the Office of Administrative Law on August 31, 2009 and 

October 6, 2009. D.L.G. AND B.B-G ON BEHALF OF O.G. v. BOARD OF 

EDUCATION OF THE TOWNSHIP OF MILLBURN, ESSEX COUNTY (“ALJ 

Decision”), OAL DKT. NO. EDU 07239-09, slip op. at 2 (Sept. 22, 2010), ECF No. 56-

20. After O.G.’s counsel withdrew, the hearing was adjourned. O.G. then retained new 

counsel. O.G.’s new counsel then withdrew. O.G. then retained a third lawyer. 

Before the hearing began, O.G. filed a motion on March 18, 2010 seeking to vacate 

his expulsion, citing, among other things, procedural errors in the hearing process before 

the Board. Id. at 3. The Administrative Law Judge assigned to the case, Ellen S. Bass 

(“the ALJ”) reserved decision. The ALJ then took testimony over the course of three days 

spanning April and June 2010. Id. Vice Principal Pitts, Principal Miron, and 

Superintendent Brodow all testified. Id. at 13. Notably, Superintendent Brodow explained 

that while his letter to O.G.’s parents indicated that he was recommending a suspension or 

expulsion, he always believed an expulsion was proper. Id. at 17. 

Most importantly, the ALJ heard testimony from O.G. The ALJ explained: “O.G.’s 

testimony offered insight into what the Board might have heard had it granted his 

adjournment request, and O.G. had chosen to testify.” Id. at 13. O.G. testified that there 

was “an atmosphere of harassment and discrimination” at his school. Id. at 13. The ALJ 

noted that another student had testified before the Board that racial slurs were common at 

Millburn High School, and that O.G. was frequently called “nigger.” Id. at 11. O.G. 

testified that on January 9, 2010, he was only trying to get away from other students when

the fight broke out. Id. at 14-16. O.G.’s testimony directly contradicted the testimony of 

other witnesses, who related that O.G. instigated a fight by threatening to shoot fellow 

students. Id. at 16. 

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The ALJ stated: “[a]t the hearing before me, O.G. offered a version of the events 

that lacked credibility, and in no way caused me to question the reasonableness of the 

Board’s decision below.” Id. at 21. The ALJ recognized that O.G.’s description of the 

“racially charged atmosphere at Millburn High School” was “disturbing,” but she also 

found that “no words or epithets could justify the violence that took place.” Id. 

While the ALJ found that “[t]he determination of the Board to impose an expulsion 

was reasonable under the facts it heard that evening,” id. at 19, the ALJ concluded that as 

a matter of law the Board did not have the power to expel O.G, id. at 22. Citing to a recent 

decision from the New Jersey Commissioner of Education, M.R. v. Board of Trustees of 

the Hoboken Charter School, EDU 09662-09, Final Decision (March 22, 2010) 

http://lawlibrary.rutgers.edu/oal/search.html —a decision that the ALJ only learned about 

while she was reviewing the parties’ post-hearing submissions—the ALJ held that because 

O.G. did not have a prior long-term suspension, the Board only had the power to issue a 

long-term suspension, not an expulsion. The ALJ ordered that O.G. be allowed to return 

to school.

In her decision, the ALJ also found that the Board did not violate O.G.’s due process 

rights. First, the ALJ noted that O.G.’s due process rights were not violated because the 

Board failed to grant a third adjournment. Id. at 20-21. The ALJ recognized that O.G. 

wanted an adjournment so that he could resolve pending criminal charges and then testify 

before the Board without waiving his Fifth Amendment privilege. However, the ALJ held 

that “there is no absolute right to a stay of a civil matter pending the outcome of criminal 

proceedings.” Id. at 20. Second, the ALJ found that the Board did not act arbitrarily, 

capriciously, or unreasonably when the Board offered to adjourn the hearing on the 

condition that O.G. waive his civil charges. Id. at 21-22. The ALJ explained that this offer 

was a settlement offer and was understood as such by O.G.’s counsel. 

O.G. appealed the ALJ’s decision to the New Jersey Commissioner of Education. 

The Commissioner upheld the decision with one modification. MSJ, Ex. Q, ECF No. 56-

21. The Commissioner held that the Board did not have to reinstate O.G. but could choose 

to continue the long term suspension. There was no appeal of the Commissioner’s decision

to the New Jersey Superior Court. O.G. ultimately returned to Millburn High School. As 

a result of what he had been through, including his expulsion, O.G. was diagnosed with

Post Traumatic Stress Disorder. PSM ¶ 66. After he completed high school, O.G. enrolled 

at Morehouse University. O.G. Dep. Tr. at 145:3-4.

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II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the 

pleadings, the discovery [including, depositions, answers to interrogatories, and 

admissions on file] and disclosure materials on file, and any affidavits show that there is 

no genuine issue as to any material fact and that the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual 

dispute is genuine if a reasonable jury could find for the non-moving party, and is material 

if it will affect the outcome of the trial under governing substantive law. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court considers all evidence and 

inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli 

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

III. DISCUSSION

The Complaint contains 13 counts:

Count 1: 42 U.S.C. § 1983 (discrimination against freshman and sophomores)

Count 2: 42 U.S.C. § 1983 (discrimination based on race)

Count 3: 42 U.S.C. § 1983 (due process violations by the Board)

Count 4: New Jersey Law Against Discrimination (hostile educational 

environment)

Count 5: New Jersey Constitution (discrimination based on race)

Count 6: New Jersey Constitution (due process violations by the Board)

Count 7: New Jersey Civil Rights Act (discrimination based on race)

Counts 8-10: New Jersey Law Against Discrimination (supervisor liability)

Count 11: Damages (money spent challenging expulsion)

Count 12: Damages (money spent homeschooling O.G.)

Count 13: Damages (money spent litigating over O.G.’s expulsion)

All 13 counts are brought by O.G, by O.G.’s parents in their parental capacity, and by the 

Plaintiff Parents in their individual capacity. Counts 1-2, 4-7, and 11-13 are brought 

against the Board and the Individual Defendants in their official and personal capacity. 

Count 3 is brought against the Board and Superintendent Brodow in his official and 

personal capacity. Counts 8-10 are brought against the Individual Defendants in their 

official and personal capacity. While the Complaint suggests that Counts 8-10 are directed 

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at the Board, as well, the briefing clarifies that these counts are directed solely at the 

Individual Defendants. 

Defendants move for summary judgment on all claims. Defendants also move to 

strike O.G.’s request for punitive damages.

The Court begins by considering O.G.’s claims. The Court then considers the 

claims brought by the Plaintiff Parents in their individual capacity. 

A. O.G’s Claims

This section is divided into three parts. First, the Court considers O.G.’s claims 

against the Board. Second, the Court considers O.G.’s claims against the Individual 

Defendants. Finally, the Court considers whether O.G. can recover punitive damages on 

his remaining claims.

1. O.G.’s Claims Against the BOARD

O.G. makes three types of claims against the Board. 

First, in Counts 3 and 6, O.G. asserts due process claims under the federal and New 

Jersey Constitutions. These claims concern the conduct of the Board when it expelled O.G. 

The Board moves for summary judgment on Counts 3 and 6, arguing that the doctrine of 

collateral estoppel forecloses O.G.’s due process challenge.

Second, in Counts 1-2 and 4-7, O.G. asserts discrimination claims under Section 

1983, the New Jersey Law Against Discrimination (the “LAD”), the New Jersey 

Constitution, and the New Jersey Civil Rights Act. The Board moves for summary 

judgment on these claims, arguing that it properly addressed any discrimination that it 

learned about.

Third, in Counts 11-13, O.G. asserts freestanding claims for damages against the 

Board. Here, O.G. seeks to recover money spent on litigation, money paid for 

homeschooling, and money that would compensate him for emotional and reputational 

injuries. The Board moves for summary judgment on these claims, arguing that they do 

not constitute causes of action.

a. Due Process Claims (Counts 3 and 6)

In Counts 3 and 6, brought respectively under 42 U.S.C. § 1983 and Article 1, 

Paragraph 5 of the New Jersey Constitution, Plaintiffs allege that the Board violated O.G.’s 

due process rights in three ways. First, the Board refused to adjourn the hearing for a third 

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time. Second, the Board conditioned an adjournment offer on O.G.’s willingness to

waiving hisright to bring a civil suit. Third, contrary to his written recommendation, which 

recommended a suspension or an expulsion, Superintendent Brodow’s only

recommendation at the Board hearing was that O.G. should be expelled. Defendants argue 

that regardless of whether any of O.G.’s three due process arguments succeed, they are 

foreclosed by the doctrine of collateral estoppel. 

The Court need not reach the collateral estoppel issue. If collateral estoppel applies 

here, then summary judgment is proper on Counts 3 and 6 at least with respect to O.G.’s 

first and second due process challenges. If collateral estoppel does not apply here, and the 

Court has to address the due process issue in the first instance, the Court would still find, 

for the reasons that follow, that none of O.G.’s three arguments establish a due process 

violation. Accordingly, whether or not collateral estoppel applies, Counts 3 and 6 fail. 

To prevail on a due process claim under Section 1983, a plaintiff must prove five 

things: 

1. that he was deprived of a protected liberty or property interest; 

2. that this deprivation was without due process; 

3. that the defendant subjected the plaintiff, or caused the plaintiff to be subjected 

to, this deprivation without due process; 

4. that the defendant was acting under color of state law; and 

5. that the plaintiff suffered injury as a result of the deprivation without due 

process.

Sample v. Diecks, 885 F.2d 1099, 1113-1114 (3d Cir. 1989). The correct standard of 

causation to apply in Section 1983 cases is proximate causation. Hedges v. Musco, 204 

F.3d 109, 121 (3d Cir. 2000). Proximate causation obtains when “a person’s wrongful 

conduct which . . . a substantial factor in bringing about harm to another.” Egervary v. 

Young, 366 F.3d 238, 246 (3d Cir. 2004).

The Court finds that the Board did not violate O.G.’s due process rights. First, the 

Board did not violate O.G.’s rights when it refused to grant a third adjournment. “The 

Constitution . . . does not ordinarily require a stay of civil proceedings pending the outcome 

of criminal proceedings.” SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir.

1980) (en banc) (emphasis added). Furthermore, even if O.G. was deprived of a liberty or 

property interest, O.G. cannot establish proximate causation. O.G.’s argument is that he 

needed an adjournment so he could testify without waiving his Fifth Amendment rights. 

When the proceeding went before the ALJ, O.G. did testify, and the ALJ found that O.G.’s 

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testimony would not have changed the Board’s mind. Accordingly, O.G. cannot establish 

that the denial of his adjournment request was a “substantial factor” in his expulsion. 

Next, the Board did not violate O.G.’s due process rights when it offered to adjourn 

the hearing on the condition that O.G. waive his right to file a civil lawsuit. The Board’s 

offer—which O.G.’s lawyer refused—did not violate O.G.’s due process rights because it 

did not deprive O.G. of a liberty or property interest. 

Finally, the Board did not violate O.G.’s due rights when it came to Superintendent 

Brodow’s recommendation. At the hearing, Superintendent Brodow recommended 

expelling O.G. It is true that Superintendent Brodow has previously recommended that 

O.G. either be expelled or suspended. But the Court fails to see how the different 

recommendation violated O.G.’s rights. O.G. was on notice that Superintendent Brodow 

was contemplating an expulsion. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 

542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or 

property be preceded by notice and opportunity for hearing appropriate to the nature of the 

case.”) (internal quotations and citations omitted). Moreover, the parties have not directed 

the Court to any evidence establishing that Superintendent Brodow’s recommendation 

proximately caused O.G.’s expulsion. As the ALJ noted, “the ultimate determination 

whether to impose the recommended discipline rest[ed] in the discretion of the board.” 

ALJ Decision at 18. Accordingly, O.G. cannot prevail on his due process claims. The 

Court will GRANT summary judgment on Counts 3 and 6.

b. Discrimination Claims (Counts 1, 2, 4, 5, and 7)

Next, the Court turns to O.G.’s discrimination claims against the Board. These 

claims are pled under Section 1983, the LAD, the New Jersey Constitution, and the New 

Jersey Civil Rights Act.

i. LAD: Hostile Educational Environment (Count 4)

Count 4, O.G.’s LAD claim against the Board, survives summary judgment.

“The purpose of the LAD is to eradicate discrimination whether intentional or 

unintentional.” Lehmann v. Toys R Us, Inc., 132 N.J. 587, 604 (1993). “[T]he LAD 

permits a cause of action against a school district for student-on-student harassment based 

on [race] if the school district’s failure to reasonably address that harassment has the effect 

of denying to that student any of a school’s ‘accommodations, advantages, facilities or 

privileges.’” L.W. v. Toms River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 402 (2007) 

(quoting N.J.S.A. 10:5–12(f)). The New Jersey Supreme Court has cautioned, however, 

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that a student does not have a claim under the LAD based on “isolated schoolyard insults 

or classroom taunts.” Id. at 402.

For a student to establish a race-based harassment claims against a school district 

under the LAD, the student must prove (1) “discriminatory conduct that would not have 

occurred ‘but for’ the student’s protected characteristic,” (2) “that a reasonable student of 

the same age, maturity level, and protected characteristic would consider sufficiently 

severe or pervasive enough to create an intimidating, hostile, or offensive school 

environment,” and (3) “the school district knew or should have known of the harassment, 

but failed to take action reasonably calculated to end the harassment.” Id. at 402-03. With 

respect to the final prong, the LAD recognizes vicarious liability: a supervisor’s actual or 

constructive knowledge can be imputed to a school district. See E.K. v. Massaro, No. 12-

2464, 2013 WL 5539357, at *8 (D.N.J. Oct. 7, 2013) (“[A] school is liable for a hostile 

school environment when it grants a supervisor authority to control the school environment 

and the supervisor either abuses that authority or has actual or constructive knowledge of 

the harassment and fails to take effective measures to end the discrimination.”) (internal 

quotations and citations omitted); see also Lehmann v. Toys R Us, Inc., 132 N.J. 587, 620 

(1993) (“We recognize that although we have declined to hold employers strictly liable for 

hostile work environment sexual harassment by supervisors, we have created a standard 

that may often result in employers being held vicariously liable for such harassment . . . 

An employer will be found vicariously liable if the supervisor acted within the scope of his 

or her employment.”). Also, for purposes of the third prong, reasonableness is determined 

based on the totality of circumstances. Id. at 408. The analysis is fact-sensitive. Id. at 

409. Factors to consider in determining reasonableness are:

• students’ ages, developmental and maturity levels; 

• school culture and atmosphere; 

• rareness or frequency of the conduct; 

• duration of harassment; 

• extent and severity of the conduct; 

• whether violence was involved; 

• history of harassment within the school district, the school, and among 

individual participants; 

• effectiveness of the school district’s response; 

• whether the school district considered alternative responses; and 

• swiftness of the school district’s reaction. 

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Id. at 409. “With those and other considerations in mind, factfinders must consider the 

cumulative effect of all student harassment and all efforts of the school district to curtail 

the maltreatment.” Id. The New Jersey Supreme Court has noted that “a reasonable 

response to name-calling among grade-schoolers may be inadequate to address violence 

among teenagers.” Id.

Disputed facts prevent the Court from granting summary judgment on Count 4. 

O.G. testified that he, as a black student, was subject to a host of vile epithets including the 

word “nigger.” As such, O.G. has set forth evidence of “discriminatory conduct that would 

not have occurred ‘but for’ the student’s protected characteristic.” Construed in the light 

most favorable to Plaintiffs, the record establishes that O.G. got into a fight with someone 

who said he would beat O.G.’s “black ass” and then broke O.G.’s nose, that O.G. was 

called “wigger” and “wangster on various occasions, that O.G.’s ipod was taken by 

someone who referred to “nigger music,” that O.G.’s friend was pushed in the hallway by 

a group of students who said they “[didn’t] like black people in [the] hallway,” that O.G. 

was punched and scratched by these same students, and that O.G. was called a “nigger 

pussy.” According to one Millburn High School student, there was “an atmosphere of 

harassment and discrimination” at Millburn High School, and that O.G. was frequently 

called “nigger.” ALJ Decision at 13. Notes taken by Principal Miron during the mediation 

session indicate that O.G.’s group and another group had been “feuding for months.” A 

jury could find, based on this evidence, that the “a reasonable student of the same age, 

maturity level, and protected characteristic” as O.G. would find that the treatment O.G. 

experienced was “sufficiently severe or pervasive enough to create an intimidating, hostile, 

or offensive school environment.” L.W., 189 N.J. at 402.

Next, a jury could find that the Board knew or should have known about the racist 

bullying O.G. was experiencing. A jury could make this finding because it could find that 

a supervisor, Vice Principal Pitts, had “actual or constructive knowledge of the 

harassment.” Joyce, 2008 WL 906266, at *23. Specifically, a jury could find, based on 

O.G.’s testimony, that besides from the fight O.G. got into freshman year and the incidents 

that took place on January 8, 2009, Vice Principal Pitts knew about additional instances of 

race-based harassment from O.G.’s written reports. Defendants deny that O.G. filed these

reports. Only a jury can resolve that dispute. 

Lastly, a jury could find that the school’s response to the harassment experienced 

by O.G. was not reasonable. As noted by the New Jersey Supreme Court, the 

reasonableness determination is highly fact specific. L.W., 189 N.J. at 409. A jury might 

decide, for example, that a mediation session that failed to mete out any punishment was 

too little too late given what was going on between O.G. and his peers. Moreover, if a jury 

were to credit O.G.’s testimony that he reported other instances of racism and nothing was 

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done in response, a jury could also find that the school’s response was inadequate. 

Accordingly, the Court will DENY summary judgment on Count 4.

ii. Section 1983 (Counts 1-2)

Count 1 is a Section 1983 claim alleging that the Board failed to prevent bullying 

against freshman and sophomores. Count 2 is a Section 1983 claim alleging that the Board

failed to prevent racially motivated harassment. Defendants’ only argument in support of 

summary judgment on these claims is that “Plaintiffs have failed to plead any specific 

violations of federal rights elsewhere conferred and have left it up to the Court to identify 

the constitutional or statutory rights of which they were allegedly deprived to trigger their 

§ 1983 claim.” MSJ at 18.

With respect to Count 1, the Court agrees with Defendants that summary judgment 

is proper: there is no Constitutional right that protects students from being bullied because 

they are freshmen and/or sophomores. Accordingly, the Court will GRANT summary 

judgment on Count 1.

With respect to Count 2, Plaintiffs’ claims of racial discrimination by state actors 

are obviously grounded in the Fourteenth Amendment’s equal protection guarantee. Under 

Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), “a school board can 

be held responsible for a constitutional violation of a teacher only if the violation occurred 

as a result of a policy, custom or practice established or approved by the board.” C.H. v. 

Oliva, 226 F.3d 198, 202 (3d Cir. 2000). However, a school board cannot be held liable 

for a constitutional violation under a respondeat superior theory. Id. Here, there is no 

evidence that the Board established or approved a policy, custom, or practice of allowing 

Millburn High School administrators to effectively turn a blind eye to student-on-student 

racial harassment. Accordingly, the Court will GRANT summary judgment on Count 2.

iii. New Jersey Civil Rights Act (Counts 5 and 7)

Counts 5 is a discrimination claim under Article I, Paragraph 5 of the New Jersey 

Constitution. Count 7 is a discrimination claim under the New Jersey Civil Rights Act. 

The counts are essentially redundant. See Trafton v. City of Woodbury, 799 F. Supp. 2d 

417, 444 (D.N.J. 2011) (New Jersey Civil Rights Act provides a cause of action to address 

violations of rights conferred by the New Jersey Constitution). Because the Court has 

already granted summary judgment on the analogous discrimination claim under the 

federal Constitution, and since the New Jersey Constitution is interpreted analogously to 

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the federal Constitution, see id., the Court will GRANT summary judgment on Counts 5 

and 7.

c. Standalone Claims For Damages (Counts 11-13)

The final set of claims against the Board are standalone claims for damages. Count 

11 seeks costs incurred challenging O.G.’s expulsion. Count 12 seeks costs incurred 

homeschooling O.G. after the expulsion. Count 13 seeks damages for emotional distress 

and harm to reputation. Defendants move for summary judgment on Counts 11-13, arguing 

that they do not constitute independent causes of action. Defendants are correct. Because 

Counts 11-13 do not constitute independent causes of action, the Court will GRANT

Defendants’ motion for summary judgment. 

2. O.G’s Claims Against The INDIVIDUAL Defendants

Based on the Court’s earlier discussion, the Court will GRANT summary judgment 

in favor of the Individual Defendants on Counts 1, 6, 11, 12, and 13, and it will GRANT

summary judgment in favor of Defendant Brodow (in his personal and official capacity) 

on Count 3. In this section, the Court will address the additional claims against the 

Individual Defendants: the supervisory liability claims under the LAD (Counts 8-10) and 

the Section 1983 and New Jersey Civil Rights Act claims alleging racial discrimination.

a. LAD (Counts 4, 8-10)

Plaintiffs’ LAD claim in Count 4 is directed against the Individual Defendants, as 

well as the Board. However, individual liability under the LAD can only arise through 

aiding and abetting liability. See Cicchetti v. Morris Cnty. Sheriff's Office, 194 N.J. 563, 

594 (2008). Accordingly, the Court will GRANT summary judgment in favor of the 

Individual Defendants on Count 4.

Next, the Court addresses Counts 8-10, the aiding and abetting claims brought 

against the Individual Defendants under the LAD. The LAD provides that a supervisor can 

be liable for aiding and abetting discrimination based on “active and purposeful conduct.” 

Tarr v. Ciasulli, 181 N.J. 70, 83 (2004). Supervisors can also be liable if they act with 

deliberate indifference. See Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL 933251, at *10 

(D.N.J. Mar. 19, 2012). While Defendants contend that the LAD does not recognize the 

imposition of personal liability, they are mistaken. See Fasano v. Federal Reserve Bank 

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of New York, 457 F.3d 274, 289 (3d Cir. 2006) (“The LAD permits the imposition of 

individual liability of an employee who has aided or abetted barred acts.”).

Here, Plaintiffs point to no evidence that Superintendent Brodow or Principal Miron 

actively violated O.G.’s rights or exhibited deliberate indifference to the alleged violation 

of those rights. Accordingly, the Court will GRANT summary judgment in favor of 

Superintendent Brodow and Principal Miron in their personal and official capacity on 

Counts 8-10. 

However, the Court cannot reach the same result for Vice Principal Pitts. O.G. 

claims that he reported numerous instances of race-based harassment to Vice Principal 

Pitts, and that, besides from suspending the Junior who O.G. fought with when O.G. was 

a Freshman, Vice Principal Pitts did nothing to address O.G.’s complaints until the 

mediation session in January of O.G.’s Sophomore year. Vice Principal Pitts, on the other 

hand, maintains that O.G. did not provide her with reports of race-based harassment. 

Clearly, the facts here are disputed. As such, the Court will DENY summary judgment 

against Vice Principal Pitts on Counts 8-10 in her personal and official capacity.

1

 

b. Constitutional Claims Against the Individual Defendants

(Counts 2, 5, and 7)

In this section, the Court considers the constitutional claims against the Individual 

Defendants. The Court begins by considering the claims brought against the Individual 

Defendants in their official capacities. The Court then considers the claims brought against 

the Individual Defendants in their personal capacities.

i. Constitutional Claims Against the Individual

Defendants in Their Official Capacities

Count 2 is a Section 1983 claim against the Individual Defendants in their official 

and personal capacities. To the extent Count 2 is brought against the Individual Defendants 

in their official capacities, Count 2 is redundant of the claims seeking to impose liability

against the Board. Accordingly, the Court will GRANT summary judgment on Count 2 

to the extent Count 2 is directed against the Individual Defendants in their official 

1 The parties have not directed the Court to caselaw that addresses the official 

capacity/personal capacity distinction when it comes to LAD claims, and the Court has been unable 

to locate any on-point authority. Since Defendants’ arguments relating to Plaintiffs’ official 

capacity claims are directed solely at Plaintiffs’ Section 1983 claims, the Court will allow both the 

official and personal capacity LAD claims to proceed against Vice Principal Pitts.

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capacities. See Dull v. West Manchester Tp. Police Dept., No. 7-0307, 2008 WL 717836, 

at *7 (M.D. Pa. Mar. 17, 2008) (“Claims asserted against both a government entity and the 

entity’s agents in their official capacity warrant dismissal of the redundant official-capacity 

suits.”). Since Courts interpret the New Jersey Civil Rights Act analogously to Section 

1983, the Court will also GRANT summary judgment on Counts 5 and 7 to the extent 

those counts are directed against the Individual Defendants in their official capacities.

ii. Constitutional Claims Against the Individual

Defendants in Their Personal Capacities

Next, the Court turns to the constitutional claims asserted against the Individual 

Defendants in their personal capacities. The Individual Defendants argue that qualified 

immunity requires the Court to grant summary judgment on these claims. 

“The doctrine of qualified immunity protects government officials from liability for 

civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. 

Callahan, 555 U.S. 223 (2009) (internal quotations and citations omitted). Qualified 

immunity is only available to officials named as defendants in their personal capacity. See 

Duran v. Merline, 923 F. Supp. 2d 702, 713 (D.N.J. 2013) (citing Kentucky v. Graham, 

473 U.S. 159, 166-67 (1985)). In deciding whether qualified immunity applies, the Court 

asks two questions. First, did the official’s conduct violate a constitutional or federal right? 

Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010). Second, was that right “clearly 

established”? Id. Qualified immunity applies to O.G.’s federal and state constitutional 

claims. See Sussino v. New Jersey Division of State Police, No. 9-6278, 2012 WL 5184582, 

at *7 (D.N.J. Oct. 18, 2012) (“Although the Third Circuit has yet to weigh in on the subject, 

other district courts have either held or assumed that claims brought under the [New Jersey 

Civil Rights Act] may be subject to a qualified immunity defense.”).

1. Did the Individual Defendants Violate O.G.’s

Constitutional Rights?

In Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134, 140-41 (2d 

Cir. 1999), the Second Circuit held that in certain circumstances, school administrators can 

be liable under the Fourteenth Amendment for deliberate indifference to student-on-student 

racial harassment. See also DiStiso v. Cook, 691 F.3d 226, 241 (2d Cir. 2012) (denying 

summary judgment where kindergartener was called “nigger” 8-15 times and teacher took 

no action); Doe v. Cape Henlopen School Dist., 759 F. Supp. 2d 522, 531-32 (D. Del. 2011) 

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(applying deliberate indifference standard in equal protection case alleging hostile school 

environment). To establish an administrator’s deliberate indifference to racial harassment, 

a plaintiff must prove that:

(1) the child in question was in fact harassed by other students based on 

his race; 

(2) . . . such race-based harassment was actually known to the defendant

school official; and 

(3) the defendant’s response to such harassment was so clearly 

unreasonable in light of the known circumstances as to give rise to a

reasonable inference that the defendant himself intended for the

harassment to occur. 

DiStiso, 691 F.3d at 241 (internal quotations and citations omitted) 

While the Third Circuit has not addressed whether the Fourteenth Amendment 

protects students from a school’s deliberate indifference to student-on-student racial 

harassment, another judge in this District has. In Joyce v. Sea Isle City, No. 4-5345, 2008 

WL 906266, at **17-18 (D.N.J. March 31, 2008), the Honorable Robert Kugler held that 

under the Third Circuit’s decision in D.R. by L.R. v. Middle Bucks Area Vocational 

Technical School, 972 F.2d 1364 (3d Cir. 1992), a Plaintiff cannot recover under the equal 

protection Clause for a school’s deliberate indifference to racial discrimination perpetrated 

by fellow students. This Court respectfully disagrees with Joyce’s reading of D.R. The 

D.R. case concerns a school’s liability under the Fourteenth Amendment’s Due Process 

clause when a student is sexually assaulted by another student. Discrimination by fellow 

students—the conduct alleged in this case—differs from the sexual violence that is the 

focus of D.R. As the Second Circuit has put it, “deliberate indifference to such [studenton-student] harassment can be viewed as discrimination by school officials themselves,” 

Gant, 195 F.3d at 140 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642 

(1999)). Because D.R. failed to engage this issue, it is inapposite. Accordingly, the Court 

will follow the Second Circuit’s on-point decision in Gant. 

Here, Defendants do not point to any evidence establishing that Superintendent 

Brodow or Principal Miron both knew about the harassment of O.G. and then responded 

to that harassment in a clearly unreasonable manner. Accordingly, the Court will GRANT

summary judgment on Counts 2, 5, and 7 to the extent those counts are directed against 

Superintendent Brodow or Principal Miron in their personal capacities.

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On the other hand, a reasonable jury might conclude that Vice Principal Pitts knew 

about the harassment and failed to act in a reasonable manner to address that harassment. 

As such, the Court must proceed to the second step and determine whether the undisputed 

facts establish that Vice Principal Pitts violated O.G.’s clearly established constitutional 

rights. 

2. Were O.G.’s Constitutional Rights Clearly 

Established?

For purposes of the qualified immunity analysis, a right is clearly established if 

“[t]he contours of the right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.” Good v. Dauphin County Soc. Servs. 

for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989). “This is not to say that an 

official action is protected by qualified immunity unless the very action in question has 

previously been held unlawful, but it is to say that in light of preexisting law the 

unlawfulness must be apparent.” Id. To determine whether a right is clearly established, 

there need not be a case “directly on point,” however, “existing precedent must have placed 

the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 

2074, 2083 (2011). 

In DiStiso, the Second Circuit found that there was a clearly established Fourteenth 

Amendment right protecting a student from an administrator’s deliberate indifference to 

racial harassment by other students. 691 F.3d at 240. However, the Second Circuit 

explained that the right was clearly established since the Second Circuit decided Gant. As 

discussed earlier, the Third Circuit has no case that is analogous to Gant. While the Tenth

Circuit agrees with Gant that a school administrator’s deliberate indifference to studenton-student racial harassment violates the Fourteenth Amendment, Murrell v. School Dist. 

No. 1, 186 F.3d 1238, 1250 (10th Cir. 1999), the district courts in this circuit have parted 

ways on the question. Compare Cape Henlopen, 759 F. Supp. 2d at 531-32 (recognizing 

right under Fourteenth Amendment), with Joyce, 2008 WL 906266, at **17-18 (rejecting 

right under Fourteenth Amendment). Accordingly, the Court finds that the Fourteenth 

Amendment right at issue here is not clearly established. It follows that qualified immunity 

applies to the constitutional claims directed at Vice Principal Pitts in her personal capacity. 

Accordingly, the Court will GRANT summary judgment on Counts 2, 5, and 7 to the extent 

those counts are directed against Vice Principal Pitts in her personal capacity.

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3. O.G.’s Request for Punitive Damages

O.G. seeks punitive damages under Section 1983, the New Jersey Civil Rights Act, 

and the LAD. The LAD claims are the only claims that survive summary judgment. The 

Court finds that O.G. may seek punitive damages under the LAD.

Unlike Section 1983 and the New Jersey Civil Rights Act, the LAD allows plaintiffs 

to recover punitive damages against a municipality. Gares v. Willingboro Twp., 90 F.3d 

720, 728 (3d Cir. 1996); Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 133 (1999). 

The LAD also provides for punitive damages against supervisors who work for 

municipalities if the supervisors aid and abet discriminatory conduct. See Oras v. Hous. 

Auth. Of Bayonne, 373 N.J. Super. 302, 318 (App. Div. 2004) (refusing to strike punitive 

damage claim under the LAD against Bayonne Housing Authority Executive Director).

To qualify for punitive damages under the LAD, a plaintiff must establish two 

things. First, the plaintiff must establish “actual participation in or willful indifference to 

the wrongful conduct on the part of upper management.” Rendine, 141 N.J. at 314. In 

Cavuoti v. New Jersey Transit Corp., the New Jersey Supreme Court explained:

it is fair and reasonable to conclude that upper management would consist of 

those responsible to formulate the organization's anti-discrimination policies, 

provide compliance programs and insist on performance (its governing body, 

its executive officers), and those to whom the organization has delegated the 

responsibility to execute its policies in the workplace, who set the 

atmosphere or control the day-to-day operations of the unit (such as heads of 

departments, regional managers, or compliance officers). 

Cavuoti, 161 N.J. at 561. The New Jersey Supreme Court added:

For an employee on the second tier of management to be considered a 

member of “upper management,” the employee should have either (1) broad 

supervisory powers over the involved employees, including the power to 

hire, fire, promote, and discipline, or (2) the delegated responsibility to 

execute the employer’s policies to ensure a safe, productive and 

discrimination-free workplace. Obviously such instructions should be 

tailored to the facts of the case . . . .

Id.

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Second, the plaintiff must establish that the “offending conduct” was “especially 

egregious.” Id. at 551. The New Jersey Supreme Court has explained the latter 

requirement as follows: “To warrant a punitive award, the defendant’s conduct must have 

been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense 

of an ‘evil-minded act’ or an act accompanied by a wanton and willful disregard of the 

rights of another.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984). 

Furthermore, “the requirement [of willfulness or wantonness] may be satisfied upon a 

showing that there has been a deliberate act or omission with knowledge of a high degree 

of probability of harm and reckless indifference to consequences.” Rendine, 141 N.J. at 

314 (internal citations and quotations omitted). 

While the parties discuss New Jersey’s general punitive damages statute, the parties 

fail to address the LAD-specific punitive damages standard. Based on the summary 

judgment record now before the Court, it appears that a jury could potentially award 

punitive damages under the LAD. To begin, Vice Principal Pitts apparently satisfies the 

first prong of the LAD’s punitive damages test—the “upper management” prong—since 

Vice Principal Pitts appears to control at least some of the day-to-day operations at 

Millburn High School and since Vice Principal Pitts apparently has the power to “execute 

the employer’s policies to ensure a safe, productive and discrimination-free workplace.” 

Cavuoti, 161 N.J. at 129. It also appears that Vice Principal Pitts satisfies the second, 

“willful disregard” prong since O.G. alleges that Vice Principal Pitts refused to act when 

O.G. complained about race-based harassment. Accordingly, the Court will DENY the 

Defendants’ request to strike the punitive damages in the LAD claims brought against the 

Board and Vice Principal Pitts. The Court will be willing to revisit this decision at trial.

B. Claims of Plaintiff Parents in Their Individual Capacity

The Plaintiff Parents sue in both their individual capacity and also in their capacity 

as O.G.’s parents and guardians. Defendants argue that summary judgment is proper on 

the claims O.G.’s parents bring in their individual capacity because the Plaintiff Parents

lack standing in their individual capacity. Defendants also argue that summary judgment 

is proper on the claims the Plaintiff Parents bring in their individual capacity because the 

undisputed facts require judgment in Defendants’ favor. The Court is persuaded by the 

second argument but not the first.

Under Article III of the United States Constitution, a plaintiff must have standing to 

bring suit in federal court. Standing involves three elements: 

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(1) the plaintiff must have suffered an injury in fact—an invasion of a 

legally protected interest which is (a) concrete and particularized and 

(b) actual or imminent, not conjectural or hypothetical;

(2) there must be a causal connection between the injury and the conduct 

complained of—the injury has to be fairly traceable to the challenged 

action of the defendant and not the result of the independent action of 

some third party not before the court; and 

(3) it must be likely, as opposed to merely speculative, that the injury will 

be redressed by a favorable decision.

Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 484-85 (3d Cir. 

1998). Defendants argue that the Plaintiff Parents lack Article III standing to sue in their 

individual capacity because they did not suffer an injury in fact. The Court disagrees. In 

Winkleman v. Parma City Sch. Dist., 550 U.S. 516, n.3 (2007), the Supreme Court 

recognized that parents had Article III standing to challenge procedural violations in their 

son’s administrative due process hearing. The parents had standing because they had a 

“concrete interest in the outcome of the proceeding, [namely] . . . an interest in having their 

child receive an appropriate education.” Id. Here, the Plaintiff Parents had an interest in 

the outcome of the Board hearing: they had an interest in keeping their son in school. They 

also had an interest in ensuring their son received an education free from discrimination. 

Accordingly, the Plaintiff Parents have Article III standing to bring claims in their 

individual capacity.

However, the Plaintiff Parents cannot proceed to trial on the claims they assert in 

their individual capacity. To begin with, the Plaintiff Parents cannot recover in their 

individual capacity under Section 1983. The parties have not directed the Court to any 

cases that have addressed whether Section 1983 allows parents to recover under the equal 

protection clause for discrimination experienced by their child. However, the Ninth Circuit 

has recognized that “a party bringing a discrimination action must, as a prudential matter, 

assert his own rights and interests, not those of third parties.” Estate of Amos ex rel. Amos 

v. City of Page, Arizona, 257 F.3d 1086, 1093 (9th Cir. 2001). In McCurdy v. Dodd, 352 

F.3d 820 (3d Cir. 2003), the Third Circuit refused to recognize a parent’s due process claim 

under the Fourteenth Amendment where the parent’s adult son was shot by police officers. 

The Third Circuit explained that “we are hesitant to extend the Due Process Clause to cover 

official actions that were not deliberately directed at the parent-child relationship.” See

McCurdy v. Dodd, 352 F.3d 820, 829 (3d Cir. 2003). Following this guidance, the Court 

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finds that the Plaintiff Parents cannot recover in their individual capacity under Section 

1983 for the alleged violation of their son’s equal protection rights. Based on this 

conclusion, it follows that the Plaintiff Parents cannot recover in their individual capacity 

under the New Jersey Civil Rights Act for the violation of their son’s equal protection 

rights. See Trafton, 799 F. Supp. 2d 417 at 443. 

Next, the Plaintiff Parents parents cannot recover in their individual capacity under 

the LAD because there is no evidence that any discrimination was directed at the Plaintiff 

Parents. See Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500 (App. Div.

2005) (“[The NJLAD] did not intend to establish a cause of action for any person other 

than the individual against whom the discrimination was directed.”). 

Finally, the Plaintiff Parents argue that they can recover in their individual capacities 

under a theory of intentional emotional distress or negligent emotional distress. Even if 

the Court were to construe one of Plaintiffs’ claims as a claim for emotional distress, no 

reasonable jury could find for the Plaintiff Parents on such a claim. To prevail on an 

intentional infliction of emotional distress claim, a plaintiff must establish emotional 

distress that is “so severe that no reasonable man could be expected to endure it.” Buckley 

v. Trenton Saving Fund Soc., 111 N.J. 355, 367 (1988). To prevail on a negligent infliction 

of emotional distress claim, a plaintiff must establish “severe emotional distress.” Portee 

v. Jaffee, 84 N.J. 88, 101 (1980). Here, the Plaintiff Parents have not directed the Court to 

any evidence establishing that they experienced such a significant level of distress. 

Accordingly, the Court will GRANT summary judgment on the claims that the Plaintiff 

Parents bring in their individual capacities.

IV. CONCLUSION

For the above-stated reasons, the Court will GRANT IN PART, and DENY IN 

PART Defendants’ motion for summary judgment. The Court rules as follows:

• Summary judgment is GRANTED IN PART, and DENIED IN PART on O.G.’s 

claims against the Board. Summary judgment is GRANTED on Counts 1, 2, 3, 5, 

6, 7, 11, 12, and 13. Count 4 survives against the Board. Plaintiffs may seek 

punitive damages against the Board under Count 4.

• Summary judgment is GRANTED IN PART, and DENIED IN PART on O.G.’s 

claims against Vice Principal Pitts. Summary judgment is GRANTED on Counts 

1, 2, 4, 5, 6, 7, 11, 12, and 13. Counts 8-10 survive against Vice Principal Pitts in 

her personal and official capacity. Plaintiffs may seek punitive damages against 

Vice Principal Pitts under Counts 8-10.

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Case 2:11-cv-00043-WJM-LDW Document 61 Filed 07/23/14 Page 24 of 25 PageID: 1848
• Summary judgment is GRANTED on all of O.G.’s claims against Superintendent 

Brodow and Principal Miron.

• Summary judgment is GRANTED on all claims brought by the Plaintiff Parents.

 /s/ William J. Martini 

 WILLIAM J. MARTINI, U.S.D.J.

Date: July 23, 2014

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Case 2:11-cv-00043-WJM-LDW Document 61 Filed 07/23/14 Page 25 of 25 PageID: 1849