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Barner-Purvis v. Marcus


February 26, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5874-04.

Per curiam.


Submitted January 29, 2008

Before Judges Coburn, Grall and Chambers.

Plaintiff Haneefah Barner-Purvis filed a complaint alleging that defendant Neiman Marcus terminated her employment for "no reason" and discriminated against her on the basis of race, gender and disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. After the court set a date for trial, plaintiff moved to amend her complaint to allege that defendant failed to accommodate her disability. The trial judge denied the motion and subsequently granted defendant's unopposed motion for summary judgment. Plaintiff appeals from the denial of her motion to amend the complaint. We affirm.

Plaintiff commenced her employment with defendant on September 1, 2003. Later that month, she learned that she was three months pregnant. In October 2003, she told her supervisor that she was expecting a child. In October 2003 and January 2004, plaintiff sought treatment for minor medical problems. On both occasions, she was treated and discharged the same day. Neither problem caused her any further difficulty. She worked until March 2, 2004.

On March 4, 2004, plaintiff's doctor gave her a note indicating that she should not return to work until she gave birth. On April 6, 2004, plaintiff and her husband met with an employee in defendant's human resources department. Plaintiff was given a form stating that her employment would terminate on April 9, 2004. Plaintiff's husband asked about the termination date but got no response. The date of termination was not changed.

The date of termination was established in accordance with defendant's personnel policy, which was set forth in an employee handbook that plaintiff was given when she was hired. Defendant's employees are eligible for family leave if they have worked for more than one year and at least 1250 hours. Employees who are not eligible for family leave are entitled to thirty days of personal leave. Plaintiff had worked for less time and fewer hours than required for family leave. Her thirty days of personal leave expired on April 9, 2004.

Plaintiff's child was born on April 16, 2004. The delivery was normal. Plaintiff's doctor discharged her from the hospital three days later and cleared her for return to work on June 1, 2004.

Plaintiff filed her complaint on July 21, 2004. Although she filed amended complaints in February, May and August 2005, she never alleged that she asked to return to work after the birth of her child; she alleged that she was treated differently than other employees. On December 28, 2006, the judge scheduled trial for March 26, 2007. On January 16, 2007, plaintiff moved to amend her complaint to allege, for the first time, that defendant failed to accommodate her disability. Although plaintiff's attorney asserted that he acquired information relevant to that claim in a recent deposition, he admitted that he knew all along that defendant had not offered plaintiff an extended leave.

The trial judge denied the motion to amend. Finding that plaintiff knew the facts relevant to the new claim in April 2004, the judge concluded that plaintiff failed to offer a reasonable explanation for her late assertion of this claim. Finding that defendant would be prejudiced if discovery were not reopened, the judge determined that the amendment would unduly protract litigation with a claim that had little merit.

A plaintiff who wishes to allege that an employer failed to make a reasonable accommodation must plead that claim. See Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 19-20 (2002). Leave to amend a complaint to assert a new claim is "freely given in the interest of justice," R. 4:9-1, but the decision is left to the sound discretion of the trial court in light of the delay and prejudice. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). In this case, there is no "clear abuse of discretion" that would permit us to disturb the trial judge's determination. See Salitan v. Magnus, 28 N.J. 20, 26 (1958); Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003). Plaintiff's claim to the contrary and her assertion that her delay was attributable to defendant's conduct during discovery both lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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