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Bello v. Lyndhurst Board of Education

October 11, 2001

DONNA BELLO, PLAINTIFF-APPELLANT
v.
LYNDHURST BOARD OF EDUCATION AND JOSEPH ABATE, JR., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4250-98.

Before Judges Havey,*fn1 Coburn and Weissbard.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2001

Plaintiff Donna Bello appeals from an order granting summary judgment to defendants dismissing her complaint in which she had alleged termination from her employment with the Lyndhurst Board of Education (the Board) in retaliation for certain political activity. Both the Board and its Superintendent, Joseph A. Abate, Jr., were named as defendants. Plaintiff asserted claims for violation of 42 U.S.C.A. § 1983, 42 U.S.C.A. § 1985 and N.J.S.A. 18A:27-4.1, as well as a common law cause of action based upon Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980).

Our review of the Law Division's grant of summary judgment is de novo. Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). This court, on appeal of a grant or denial of summary judgment, applies the same standard as the trial court. R. 4:46-2. We look at all of the evidence submitted in the "light most favorable to the nonmoving party," and determine if the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995). However, there are cases where the evidence "is so one-sided that one party must prevail as a matter of law." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Applying these standards, we affirm.

By contract dated June 27, 1994, the Board hired plaintiff to fill the newly-created position of Assessment Manager Processor. Her term of employment ran from July 1, 1994 through June 30, 1995 at an annual salary of $20,120. The title of plaintiff's position was changed to that of a twelve-month secretary by virtue of a new contract dated September 6, 1994 made retroactive for the same term of employment and salary as the original contract.*fn2

The position of Assessment Manager Processor had been created by the Board with a view toward improving the scores of its high school students on proficiency tests and early warning tests mandated by the State. The position envisioned "a computer bank" of tests that teachers could utilize to improve the scores of their students in various academic subjects. During her initial term of employment, the school year 1994-95, plaintiff sought to get the position "up and running." She also performed a variety of tasks in the Board's central office under the direction of Acting Superintendent Talarico and, in addition, served as substitute calling clerk with the responsibility of calling in substitute teachers. In an appraisal of March 27, 1995, Talarico found that she exceeded performance standards in five of eight categories and met performance standards in the remaining three categories.

Plaintiff and her family had been actively involved in local Lyndhurst politics since at least 1982. Plaintiff's father-in- law, Vincent J. Bello (Bello, Sr.), is a former member of the Lyndhurst Board of Education. Beginning in 1990, Bello, Sr. had joined with John DiLascio and his son, Richard DiLascio, the current Board attorney, to promote candidates for the Board opposing the slate of candidates backed by the then Mayor of Lyndhurst. As a result of the 1992 Board election, the candidates backed by the DiLascio/Bello faction gained majority control of the Board. Plaintiff and her husband, Vincent J. Bello, Jr. (Bello, Jr.), actively supported these same candidates. Eventually, there was a falling out between the DiLascios and the Bellos. Although the Bello family supported the DiLascio-backed candidates in the 1995 Board elections, a rumor surfaced that, in fact, the Bellos had worked in opposition to the DiLascio camp. John DiLascio confirmed the existence of this rumor to Bello, Sr. Shortly after the election, plaintiff received notice from Talarico that she would not be rehired for the 1995-96 school year. Plaintiff's husband spoke with a member of the Board about the loss of his wife's job and that individual expressed surprise and advised Bello, Jr. that the termination had not been made with the requisite Board approval. As a result, plaintiff did not lose her position but was rehired under a new employment contract dated June 12, 1995 to again serve as a twelve-month secretary at a salary of $21,499. She also continued to handle duties as substitute calling clerk.

Superintendent Joseph Abate, Jr. returned from a leave of absence and assumed his duties for the 1995-96 school year. Apparently because there was not enough work to support plaintiff's position in the central office, in June 1995 she was transferred from the position of Assessment Manager Processor to that of a secretary in the high school guidance department, where a secretary had retired. Abate had decided that the interests of the district would be best served by placing plaintiff in a full time position where she was needed. Although plaintiff initially understood that this would be a temporary change, she realized when school reopened in September 1995 that the change was permanent. She continued to perform some functions as Assessment Manager Processor but was later directed to discontinue those duties. The Lyndhurst Advocate, a private newsletter put out by the DiLascios, touted plaintiff's move as a consolidation that "saved taxpayers $24,572."

Plaintiff's supervisor in the guidance department was Virginia Testa. It was alleged that animosity existed between Bello, Sr. and Testa as a result of criticisms that Bello had leveled against Testa when Bello was a member of the Board many years earlier. In any event, Testa evaluated plaintiff on three occasions: October 16, 1995, February 28, 1996, and April 26, 1996. In the first evaluation, Testa found that plaintiff did not meet performance standards in five out of eight categories. Plaintiff filed a response to the evaluation, challenging Testa's opinions. Plaintiff also met with Abate about the possibility of a transfer to a position outside the guidance office so that she would not be under the supervision of Testa. According to plaintiff, Abate advised her that although he would be happy to have her back in the central office, "the Board" would not permit him to effectuate such a transfer.*fn3

Despite plaintiff's inquiry, Abate would not specify whom on the Board was opposed to plaintiff's transfer. Plaintiff also disputed Testa's two subsequent negative evaluations. After the third evaluation she again requested a transfer in writing to Abate on May 3, 1996. In that memo plaintiff noted that Testa had recommended that her services as secretary no longer be continued in the guidance office and asked that she be allowed to resume full time duties as Assessment Manager Processor or be transferred to a related secretarial position.

During the 1996 Board election, plaintiff and her family actively and openly supported candidates opposed to the DiLascio slate. Plaintiff's position and the amount of her salary as compared to other secretaries was raised as a political issue by the DeLascio candidates through political flyers. Thereafter, the Board eliminated plaintiff's position as Assessment Manager Processor as a result of the voters having failed to approve a "cap waiver" for the 1996-97 school budget, which would have allowed the Board to spend additional money beyond the budget to retain this position. The decision to eliminate the Assessment Manager Processor position was motivated solely by budgetary consideration, Abate having determined that it was a nonessential position. Indeed, the Board did not even mention the individual occupying the position when the termination decision was made. A memorandum from Abate to the Board, dated May 6, 1996, indicated the elimination of a number of positions. With respect to plaintiff, the reason given for elimination of her job was "cap waiver/cause."*fn4 One day later, Abate wrote plaintiff that she would not be offered employment for the 1996-97 school year, and informed her that she had the right to request a written statement of reasons for her termination. In response to such a request, by letter dated June 4, 1996, Abate stated the following:

I am sorry to inform you that you will not be reappointed for the 1996-97 school year due to financial uncertainty, enrollment changes, and/or possible staff reorganization. Your employment as Assessment Manager ...


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