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Tynan v. Vicinage 13 of the Superior Court of New Jersey5/31/2002
the assignment judge that " hese recent actions have exacerbated physical and emotional disabilities."
On March 17, 1999, Farkas responded to Tynan in writing. He referenced Tynan's letter to the assignment judge but did not mention any accommodation that would be considered and requested no meeting with Tynan to discuss her return. Moreover, no reference was made to Regan's five-point plan and instead, he noted that Tynan was expected to return to work on Monday, March 15, 1999, and that her failure "has been treated as a resignation of employment with the Judiciary."
In October, 1999, Tynan filed her Superior Court complaint against defendants alleging that (1) defendants failed to accommodate her medical condition and in the alternative continued to harass her until she became disabled to work in her position with Pardo as her supervisor in violation of the LAD; (2) defendants created a hostile work environment contrary to the LAD; (3) defendants conduct constituted intentional infliction of emotional distress; (4), (5) and (6) defendants violated her liberty interests, property rights and civil rights under the State and Federal constitutions and 42 U.S.C.A. § 1983.
Defendants moved for summary judgment on the basis that Tynan's claims were time barred and that Tynan was not a qualified individual with a disability. In the interim Tynan had filed several expert reports, based on which the trial judge subsequently entered an order baring Tynan from calling as witnesses each of the individual authors of the reports.
The trial judge then granted defendants' motion for summary judgment. The judge was concerned with Tynan's failure during her leave to "specifically indicate what accommodation she is requesting," and that it would not be a reasonable accommodation to have Tynan report to a different administrator. In addition, the judge believed that "the individual himself or herself [must] indicate what the accommodation is that they are requesting and that it be a reasonable accommodation."
Regarding the hostile environment allegations, the judge believed that "all of the specific events that were presented to the Court occurred prior to 1997." Moreover, the judge found "that there were no specific facts that showed that there were pervasive or severe discrimination because of her disability." The judge did not "see anything here indicating that she was discriminated against because of her disability."
Finally, the judge noted Tynan's extended leave and commented that her job "required an individual to be on site. . . somebody who was capable of performing this job; and Miss Tynan, at least, as of March indicates she was asking for additional leave and that she was not able to perform this job."
II.
We begin our analysis with the count in Tynan's complaint that we believe should not have been dismissed, charging that defendants failed to provide reasonable accommodation to her disability. Tynan contends in this count that defendants discriminated against her because they did not accommodate her disability.
Under the Americans with Disabilities Act (ADA) 42 U.S.C.A. § 12101 to § 12213, an employer commits unlawful discrimination if the employer does not reasonably accommodate the known physical or mental limitations of an otherwise qualified disabled employee unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C.A. § 12112(b)(5)(A).
The LAD does not specifically address reasonable accommodation, but our courts have uniformly held that the law nevertheless requires an employer to rea
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