NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,"

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

, 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."

.

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

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.,

(1988); see also Terry v. Mercer Cnty. Bd. of

Chosen Freeholders,

(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.,

(App.

Div.), certif. denied,

(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,

(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."

. "'[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[.]'"

We must give "'due regard also to the agency's expertise.'"

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.'"

. "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,

(2014); In re Arenas,

, 443–44 (App. Div.), certif. denied,

(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,

(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.,

(App. Div. 2001), certif. denied,

(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.,

(App. Div.), certif. denied,

(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.,

(2002). "Where the existence of a handicap is not readily

apparent, expert medical evidence is required."

; see

(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.,

, 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,

(D.P.R. 2003) (fear of crowds); State v. Freeman,

(App. Div. 1988) (fear of open places), certif.

denied,

(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.,

(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."

(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

.

The LAD, unlike the federal statutes barring discrimination

against the disabled, does not "require that the disability

substantially limit a major life activity."

n.11; Tynan v. Vicinage 13 of the Superior Court,

18 A-5341-12T4

(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

(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-

4.11(a).

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."

. 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."

(internal quotation marks omitted). The same is true for a

place of public accommodation. See Estate of Nicolas v. Ocean

Plaza Condo. Ass'n,

(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."

(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.,

(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."

. 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.,

(App. Div. 1996); see Howard Sav.

Inst. v. Francis,

(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."

(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."

.

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

condition.

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