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Bruce Tyson v. Asbury Park Public School

August 1, 2011

BRUCE TYSON, PLAINTIFF-APPELLANT,
v.
ASBURY PARK PUBLIC SCHOOL DISTRICT, JAMES PARHAM, ANDREA BATES, LINDA PALUMBO, ROBERT DISANTOS, JOHN FIGUEIRIDO, GREGORY BREWINGTON, FRANK D'ALESSANDRO, GARRETT GIBERSON, BARBRA LESINSKI, THOMAS PIVINSKI, ADRIENNE SANDERS, GENEVA SMALLWOOD, ASBURY PARK MUNICIPAL COURT CLERK, ASBURY PARK EDUCATIONAL ASSOCIATION, MARCIE MACKOLIN, AND MONMOUTH COUNTY UNISERV, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1529-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Messano and Waugh.

Plaintiff Bruce Tyson appeals from the Law Division's: 1) grant of summary judgment to defendants Asbury Park Public School District, a/k/a Asbury Park Board of Education, and its constituent members and employees, defendants James T. Parham, Andrea Bates, Linda Palumbo, Robert Disantos, John Figuerido, Gregory Brewington, Frank D'Alessandro, Garret Giberson, Barbara Lesinski, Thomas Pivinski, Adrienne Sanders, and Geneva Smallwood (collectively, the Board); 2) dismissal of plaintiff's complaint against defendants the Asbury Park Educational Association, Ron Villano and Monmouth County Uniserv (collectively, the APEA)*fn1 ; and 3) dismissal of plaintiff's complaint against defendant Marcie Mackolin and the "Asbury Park Municipal Deputy Court Administrator." After consideration of plaintiff's arguments in light of the record and applicable legal standards, we affirm.

Plaintiff was employed by the Board as a youth service advocate from November 1996 until March 2004, at which time he left because of a "'family illness,'" the exact nature of which is undisclosed in the record. Plaintiff was subsequently rehired as a security guard in December 2004.

Beginning in fall 2006, plaintiff sent letters to various offices and officials, including the United States Attorney's Office, the Office of the Attorney General of New Jersey, the Office of the Governor, and the New Jersey Education Association (NJEA), alleging unethical conduct by the Board, and, among other things, defamation by Villano, the local representative of the APEA.

Villano subsequently filed a complaint in the Asbury Park Municipal Court alleging harassment, N.J.S.A. 2C:33-4(a). Villano was represented by defendant Marcie L. Mackolin, Esq., who was also a "contracted NJEA attorney." On May 11, 2007, the charges against plaintiff were dismissed.

In the interim, in January 2007, plaintiff was diagnosed with "accelerated hypertension," and his doctor, Sarah A. Morris, provided a letter excusing him from work until February1.*fn2 In April, Morris extended plaintiff's medical absence until July 1 and completed a certificate of disability. According to a letter from Morris dated June 28, her office faxed the medical note to Bates, the Board's Assistant Superintendent, on April 20, and there was no indication that the fax was not received.

On April 24, 2007, Palumbo, then principal of Asbury Park High School, sent plaintiff a letter by certified mail stating that plaintiff had been absent from work for forty-one days. Palumbo cited the Board policy regarding attendance, which provided that "[c]hronic absenteeism and tardiness [we]re subject to discipline and may be cause for dismissal." Palumbo further indicated that she "need[ed] to know the projected length of [plaintiff's] absence" in order to staff his assignment. Palumbo's letter was received by plaintiff.

On May 17, Palumbo sent Parham, the Board's Acting Superintendent, a letter advising that plaintiff had not reported to work since March 29, and had not called in to report his absence since April 5, 2007.

On June 21, Parham sent plaintiff a letter advising that his job performance would be discussed by the Board at its June 27 meeting during a "closed session." In a separate letter to plaintiff sent the same day, Parham advised he "w[ould] recommend [plaintiff's] termination . . . based upon abandonment of [his] position." Specifically, Parham claimed that plaintiff was absent from work for forty-one days as of April 24, 2007, failed to come to work since March 30, "failed to advise the Principal as to why [he was] absent and . . . failed to respond to the Principal's written request . . . as of April 24, 2007." Plaintiff received both of Parham's letters.

In his brief, plaintiff claims that he met with Parham and Bates prior to the Board meeting and provided them with medical information supplied by his doctor. In his original complaint, plaintiff claimed that he "discovered he was not on [the Board] agenda and no actions [regarding] Plaintiff['s] termination commenced." However, there is no certification or affidavit from plaintiff attesting to these facts and plaintiff never asserted them before the motion judge when dispositive motions were filed by defendants.

Plaintiff sent Parham a letter regarding his employment status and requesting documentation of his termination on August 27, 2007. On August 28, Villano sent a letter to plaintiff in response to "receipt of [plaintiff's] transmission from NJEA." Villano wrote that "[t]he [B]oard through administrative recommendation voted to terminate your employment for abandonment . . . . For whatever reason ...


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