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Toto v. Princeton Township

January 15, 2009

FERNANDO TOTO, PLAINTIFF-APPELLANT,
v.
PRINCETON TOWNSHIP, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-0806-04.

The opinion of the court was delivered by: Chambers, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued telephonically September 17, 2008

Before Judges Winkelstein, Fuentes and Chambers.

Plaintiff Fernando Toto brought this lawsuit against his former employer, defendant Princeton Township, asserting a hostile work environment claim and a failure to accommodate claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 10:5-49. He contends that the trial court erred in holding that his hostile work environment claim was barred by the statute of limitations. He also alleges an error in an evidentiary ruling during the trial of his failure to accommodate claim.

The primary question presented in this appeal is whether the statute of limitations governing plaintiff's hostile work environment claim runs from the date that plaintiff left the workplace or from the later date when he was formally terminated from the position due to his failure to return to work after his vacation days, personal days, and medical leave had expired. The trial judge held that, under the circumstances presented, the statute of limitations began to run when plaintiff left the workplace because that is the date the last act of harassment could have occurred. We agree. Because plaintiff was last physically at the work site more than two years before this action was commenced, the claim is barred by the statute of limitations. We reject plaintiff's attempt to circumvent this result by arguing that he is only seeking damages for the termination of his employment caused by defendant's failure to remediate the hostile work environment while he was on leave. This argument essentially asserts a wrongful discharge claim, which plaintiff acknowledges he has not made in this litigation.

Plaintiff's failure to accommodate claim, which was not barred by the statute of limitations, was tried to a jury that rendered a verdict of no cause against plaintiff. Plaintiff contends that the trial court erred in an evidentiary ruling at trial on the admissibility of a letter and that the error warrants reversal of the verdict. Finding no error, we reject this contention and affirm.

I.

From 1982 until 2002, plaintiff worked as a laborer for defendant Princeton Township in its Public Works Department. He has a speech impediment, and he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in 1993. Due to these conditions, he asserts that he was harassed by his co-workers, in that they verbally taunted and teased him. He contends that his co-workers also engaged in sexual harassment that included sexual remarks and showing him pornographic material.

In 1997, plaintiff and his psychiatrist advised the Township of plaintiff's disability. In a letter to the Township, the psychiatrist explained in a general way how an employer can best deal with a worker with this type of disability, including clearly explaining rules, repeating instructions, providing a structure for the work, and helping plaintiff plan a schedule for his work. Plaintiff maintains that these suggestions were not implemented and that the harassment continued. In 1999, plaintiff was involved in a physical altercation with a co-worker. Plaintiff was disciplined for provoking the fight, and the co-worker received a more serious disciplinary sanction for punching plaintiff in response to the provocation.

In 2000, plaintiff enlisted the services of an employment agency working with people with developmental disabilities, and Mary Ellen Mazzarella, from that agency, interceded with the Township on plaintiff's behalf. Nevertheless, plaintiff maintains that the harassment by co-workers continued. On January 9, 2002, he was involved in a verbal confrontation with two co-workers. He left the workplace on January 11, 2002, and never returned. A note from his psychiatrist dated February 11, 2002, states that plaintiff should be excused from work effective January 25, 2002, with an uncertain return date due to medical issues. Plaintiff was not thereafter medically released to return to work with the Township. At his deposition, plaintiff explained that he stopped working because "I was not getting any accommodations from Princeton Township. I felt depressed, afraid to go back because the work environment was too hostile for me and I felt that I could not pursue employment based on my disabilities." Plaintiff remained out of work, using his accrued sick, vacation, and personal time.

In March 2002, plaintiff's attorney, job coach, sister, and psychiatrist met with representatives of the Township regarding plaintiff's return to work, but plaintiff contends that the Township took no steps to remedy the harassment. However, nothing in the record indicates that the Township was asked to do anything specific to correct the hostile work environment, which it failed to do.

On July 17, 2002, the Township sent plaintiff's counsel a letter asking whether plaintiff intended to return to work once his paid leave expired on July 19, 2002. It advised that if he did intend to return to work, then an accommodation questionnaire would need to be completed by his physician. It states that if he did not intend to return to work, then his employment with the Township would be terminated. Plaintiff did not return to work, and as a result, his employment with the Township was ...


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