 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Tynan v. Vicinage 13 of the Superior Court of New Jersey5/31/2002
ted any transfer because the vicinage did not initiate the interactive process to determine whether a reasonable accommodation was possible.
Moreover, Tynan's last letter to the assignment judge complained of not being advised of a posting of a vacant position in the same vicinage. Thus, Tynan might have been interested in a transfer to another position if this were offered as an option during the interactive process. This vacancy, however, was not explored with Tynan.
Thus, in our opinion, Tynan has raised a factual dispute regarding whether the vicinage acted in bad faith by failing to initiate the interactive process. " n employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations." Taylor, supra, 184 F.3d 317-18. Tynan's failure to accommodate claim should not have been dismissed on summary judgment and must be determined by a jury.
III.
Tynan's first count in her complaint must therefore be remanded for further proceedings. Accordingly, we briefly review the other counts of Tynan's complaint. Plaintiff alleges that because she was disciplined twice, she suffered a hostile working environment. This allegation does not meet the requirements of Lehmann v. Toys 'R' Us, Inc. 132 N.J. 587, 601 (1993), and was properly dismissed. Similarly, we do not believe that any of plaintiff's contentions are sufficient to raise constitutional or 42 U.S.C.A. ยง1983 violations and these counts of her complaint were also properly dismissed. Furthermore, plaintiff failed to brief these contentions and they are therefore deemed waived. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div. 2001).
With regard to Tynan's contention that defendants intentionally inflicted emotional distress, the trial judge has made no findings of fact or conclusions regarding this allegation. While we have some doubt as to whether the claim raises sufficiently outrageous conduct to withstand scrutiny under Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355, 366 (1988), we do not exercise our original jurisdiction to resolve this matter. Instead, we leave this count for the trial judge to handle on the remand.
IV.
Because there will be a remand in this matter, we also consider the trial court's exclusion of plaintiff's expert reports. Tynan served on defendants copies of reports from Dr. Howard B. Jones, M.D., Susan M. Bauman, M.D., Howard Layman, M.D., Joseph O. D'Arco, MPA, and Dr. James J. Carroll, CPA. Defendants argue that Tynan failed to submit these reports within the time prescribed by the rules and that the reports failed to set forth any rationale for the conclusions noted.
The trial court entered a November 5, 2000, order barring any expert testimony based on these reports. Except for the language contained in the order, nothing indicates what inquiries the court conducted before barring the experts' testimony and report. It is not clear whether the trial court considered the reports "net opinion" or otherwise defective. In short, there are no findings of fact and conclusions of law on this point. We cannot determine whether the trial court abused its discretion.
Moreover, "the sins or faults of an errant attorney should not be visited upon his client." Wilkins v. Hudson County Jail, 217 N.J. Super. 39, 41 (App. Div.), certif. denied, 109 N.J. 520 (1987) (quoting Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190, 194 (App. Div. 1985). We have been reluctant to impose the sanction of testimonial exclusion where a litigant's attorney has failed to comply fully with the discov
Page 1 2 3 4 5 6 7 8 9 10 New Jersey Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|