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Duncan v. Atlantic City Board of Education

October 22, 2008

ALLYSON DUNCAN, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
ATLANTIC CITY BOARD OF EDUCATION AND KENDALL BROWN, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND ROSETTA JOHNSON, SYLVIA STEWART AND ANGEL GARCIA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-290-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Fuentes, Gilroy and Chambers.

Plaintiff Allyson Duncan appeals from the judgment dated April 12, 2006, dismissing her claims for sexual harassment after a no cause jury verdict and from the order dated May 12, 2006, denying her motion for a new trial and petition for a Writ of Mandamus. Defendant Atlantic City Board of Education ("Board of Education") cross-appeals from the order of May 12, 2006, denying its motion for attorney's fees.

Plaintiff contended that while working as a custodian for the Board of Education, she had been sexually harassed by her supervisor, defendant Kendall Brown. She brought this law suit alleging sexual harassment in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 10:5-49. At trial, plaintiff, a long time employee of the Board of Education, testified that Brown had engaged in sexual harassing conduct, including improper touching and crude and sexual remarks. Brown denied engaging in this conduct, although he did admit that on one occasion he had, in anger, made a sexually inappropriate remark to a co-worker of plaintiff and on a few other occasions, when rebuffing plaintiff's romantic overtures to him, he had said that she was "fat" and had a "nasty behind." Brown further testified to numerous job performance problems he had with plaintiff. After an eight day trial, in which numerous other witnesses testified as well, the jury rejected plaintiff's claim, finding that she had failed to prove that Brown "created a hostile work environment by committing acts of sexual harassment."

The trial judge thereafter denied plaintiff's motion for a new trial and petition for a "Writ of Mandamus relating to Defendant Atlantic City Board of Education's failure to enforce its sexual harassment policies and procedures." The Board of Education's request for attorney's fees was also denied by the trial judge.

Plaintiff appeals, raising the following issues:

POINT I

PLAINTIFF IS ENTITLED TO A NEW TRIAL ON THE ISSUES OF LIABILITY AND DAMAGES.

A. Liability under the LAD.

B. An Employer's Failure to Take Remedial Action.

POINT II

THE TRIAL COURT ERRED BY REFUSING TO ALLOW THE PLAINTIFF'S TREATING PSYCHIATRIST TO TESTIFY AS TO THE CAUSE OF THE ...


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