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Fusco v. Board of Education of the City of New York

April 1, 2002

LESTER FUSCO, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF NEWARK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9726-98.

Before Judges Baime, Fall and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

OPINION CORRECTED 04/16/02

Argued: March 13, 2002

Plaintiff, Lester Fusco, a former principal in the Newark School District, appeals from the denial of his motion for reconsideration of a prior order which granted summary judgment to defendant, Board of Education of the City of Newark ("School District").

Fusco was employed by the School District from l961 until his retirement in l997, at the age of fifty-nine. From l986 to 1996, he served as a principal at several different schools, concluding with Roseville Avenue School from 1992 through January 1996. Fusco's reassignments were at the behest of the School District. He did not have a formal employment contract with the School District, but held tenured status pursuant to N.J.S.A. 18A:28-5.

From January to September l996, Fusco took an extended paid leave of absence for reconstructive right knee surgery. In May l996, Fusco advised the School District that his surgeon had cleared him to return to work approximately August l9, 1996. On August l3, 1996, he was notified that he was being reassigned as principal of McKinley Elementary School. Principals were scheduled to return to work on August 20, 1996; however, on August l5, 1996, Fusco notified the School District that he was still under medical care, had not been released to return to work and would advise of his status after his re-evaluation on August 29, 1996.

On September 6, 1996, Fusco submitted a disability certificate from his treating physician releasing him to return to work on September 9, 1996 "with restrictions," and after being cleared by the School Board's physician, returned to work on September 20, 1996. In his absence, another principal had been assigned to the McKinley Elementary School. Fusco was informed that before reassignment he would need to receive the principal training he missed while on leave, and was sent to the administrative offices on the ninth floor, which were accessible by elevator, to review the materials. On September 27, 1996, Fusco notified the School Board he was "applying for terminal leave as per CASA contract [principals' collective bargaining agreement] to commence on or about January 27, 1997, through June 31, 1997. Retiring from the Newark Public Schools as of July 1, 1997 [when his terminal leave ended]." Fusco was paid his full salary during the entirety of his terminal leave.

On September l5, l998, Fusco filed a complaint against the School District, alleging handicap and age discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 ("LAD"), breach of the School District's implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and seeking lost income, reinstatement of employment with retroactive restoration of benefits, punitive damages, counsel fees and costs.

On November 17, 2000, Judge F. Michael Caruso granted defendant's motion for summary judgment and dismissed Fusco's complaint in its entirety with prejudice. The judge concluded that he was "satisfied the actions and the conduct of the plaintiff were strictly voluntary and the school system had nothing to do with his submission of his termination . . . for all of the reasons posed by the defendants."

On December 19, 2000, Fusco moved for reconsideration under Rule 4:49-2, requesting that "in the interest of justice, the court should consider this newly discovered evidence." The proffered evidence was a Notice of Determination by the New Jersey Department of Labor Unemployment and Disability Insurance Services ("Unemployment Determination"), in response to Fusco's application for unemployment benefits, which stated:

YOU ARE HEREBY NOTIFIED THAT BASED UPON THE FACTS OBTAINED AND IN ACCORDANCE WITH THE NEW JERSEY UNEMPLOYMENT COMPENSATION LAW, ...


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