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Tynan v. Vicinage 13 of the Superior Court of New Jersey5/31/2002
he vicinage ignored all of this information together with Tynan's leave extension request and simply stuck to its position that a change of supervisor and purging of her personnel file were not accommodations that the vicinage could accept.
Once the vicinage knew of the handicap and Tynan's desire for assistance, the burden was on the vicinage to implement the interactive process. See Taylor, supra, 184 F.3d at 315. If an extension of leave was not possible, then the vicinage had an obligation at that point, considering the information it possessed regarding Tynan's situation, to initiate the interactive process to determine what could be an acceptable accommodation to both sides. Instead, the vicinage ignored Regan's five-point plan, elected not to schedule any meeting with Tynan and in essence decided to orchestrate a termination.
The vicinage did nothing except to treat Tynan's failure to return as a resignation. Given the history of Tynan's situation, the vicinage knew that she could not return to work without some type of accommodation. By failing to initiate the interactive process, and forcing Tynan to return without any accommodation, the vicinage forced the termination.
The vicinage cites to Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3rd Cir. 1998), as directly on point and supportive of its position that it did not have to accommodate Tynan. In that case, plaintiff Gaul's requested accommodation was to be transferred away from co-workers who were causing him prolonged and inordinate stress. The court recognized that Gaul's employer under this accommodation would have to "transfer Gaul to another department whenever he becomes 'stressed out' by a co-worker or supervisor." Id. at 581. This obligation would be impractical for any employer, and accordingly, the court found the requested accommodation to be "unreasonable as a matter of law." Ibid. As the lower court recognized, "in order to accommodate Gaul, his employer would have to insure that he would be guarded against stress and criticism. Such accommodation is not reasonable, and would impose an undue hardship on the employer." Gaul v. AT & T, 955 F. Supp. 346, 353 (D.C. N.J. 1997).
Gaul is distinguishable from Tynan's situation. Tynan had some disability that preceded any difficulties she had with Pardo. Her post-traumatic stress disorder and migraine headaches both preceded Pardo. Tynan's main contention was that Pardo's management style exacerbated her existing disabilities and may have caused others. Gaul, unlike Tynan, could not work under any stress or tension.
While Gaul worked with several supervisors, any tense situation incapacitated Gaul. The only accommodation Gaul requested was a transfer whenever he decided he was stressed. Such an accommodation was unreasonable as a matter of law. Taylor, supra, 184 F.3d at 315, fn7. In contrast, Tynan's work record before Pardo became her supervisor was unblemished. Most of the difficulties Pardo had with Tynan appear to be trivial and perhaps personality based. The two employees seem to have had some confusion over their respective roles. Furthermore, the vicinage has stated that if Tynan had requested a transfer to another title, that might have been accommodated. Transfers to a vacant position may in some situations be a reasonable accommodation. Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir. 2001). In addition, if there were no lateral transfers available, the vicinage as another reasonable accommodation could have offered Tynan a job at a lower rank even though it would be considered a demotion. Smith v. Midland Brake, 180 F.3d 1154, 1177 (10th Cir. 1999). The record does not reflect whether Tynan would have accep
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