Opinion
DOCKET NO. A-0720-09T3
08-01-2011
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.
Bruce Tyson, appellant pro se. Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., attorneys for respondent Asbury Park Board of Education (Douglas E. Motzenbecker and Lainie Miller, on the brief). Dempster & Haddix, attorneys for respondent Asbury Park Municipal Court Clerk (Robert J. Borrelle, Sr., on the brief). Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for respondents Asbury Park Education Association and Monmouth County Uniserv (Richard A. Friedman, of counsel; Aileen M. O'Driscoll, on the brief). Chamlin, Rosen, Uliano & Witherington, attorneys for respondent Marcie Mackolin, join in the brief of respondents Asbury Park Education Association and Monmouth County Uniserv.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Waugh.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Docket No. L-1529-09.
Bruce Tyson, appellant pro se.
Podvey, Meanor, Catenacci, Hildner,
Cocoziello & Chattman, P.C., attorneys for
respondent Asbury Park Board of Education
(Douglas E. Motzenbecker and Lainie Miller,
on the brief).
Dempster & Haddix, attorneys for respondent
Asbury Park Municipal Court Clerk (Robert J.
Borrelle, Sr., on the brief).
Zazzali, Fagella, Nowak, Kleinbaum &
Friedman, attorneys for respondents Asbury
Park Education Association and Monmouth
County Uniserv (Richard A. Friedman, of
counsel; Aileen M. O'Driscoll, on the
brief).
Chamlin, Rosen, Uliano & Witherington,
attorneys for respondent Marcie Mackolin,
join in the brief of respondents Asbury Park
Education Association and Monmouth County
Uniserv.
PER CURIAM
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); 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 identifies Villano as a defendant throughout his brief. However, while there were factual allegations made against Villano in the two complaints plaintiff filed, he is not named as a defendant in the caption of either. Uniserv is the regional affiliate of the New Jersey Education Association (NJEA) to which the APEA belongs.
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 February 1. 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.
Several documents that appear in plaintiff's appendix were not part of the record below since, as we explain, plaintiff failed to file any opposition to the summary judgment and dismissal motions brought by defendants.
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 you elected not to communicate with this office or the leadership of the APEA on your status . . . ."
In his complaint, plaintiff claimed that he reported to work on September 4 and met with Parham. He requested official documentation of his termination, but did not receive any. On the same day, plaintiff sent Parham a letter requesting all minutes, public and private, tape recordings and resolutions regarding termination of his employment from Board meetings conducted in June, July and August 2007.
On September 12, 2007, Parham sent plaintiff a letter confirming the Board's decision that plaintiff had abandoned his position and terminating his employment. Parham also indicated, "[a]ny records . . . if available to you under law, you may request from . . . [the Board's Business Administrator/Secretary]."
On the day before, September 11, 2007, plaintiff filed a complaint against the Board with the United States Department of Education, New York Office for Civil Rights. In October, the complaint was referred to the Equal Employment Opportunity Commission.
The complaint is not in the record.
On November 21, 2008, plaintiff filed a pro se complaint in the Law Division bearing Docket No. L-5531-08, and subsequently amended his complaint on December 19, 2008 (Tyson I). Generously interpreted, the complaint alleged in fourteen counts that defendants: 1) breached plaintiff's employment contract, specifically its "'Non-harassment and/or CEPA' policy"; 2) violated 42 U.S.C.A. § 1981; 3) caused injury to plaintiff's property rights under the New Jersey Constitution; 4) breached the implied covenant of good faith and fair dealing in plaintiff's employment contract; 5) violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the LAD), based on plaintiff's race; 6) violated plaintiff's rights under the New Jersey Constitution; 7) violated plaintiff's right to pursue chosen gainful employment under the New Jersey Constitution; 8) breached the implied covenant of good faith and fair dealing; 9) violated 42 U.S.C.A. § 1983; 10) defamed plaintiff; 11) tortiously interfered with his prospective economic advantage; 12) maliciously prosecuted plaintiff in Asbury Park Municipal court; 13) maliciously prosecuted plaintiff based on racial discrimination; and 14) wrongfully refused to reinstate him to his position.
The APEA, Villano, and the Asbury Park municipal court personnel moved to dismiss the complaint for "failure to state a claim upon which relief can be granted." Rule 4:6-2(e). The motions were unopposed by plaintiff, and on March 6, 2009, the judge dismissed plaintiff's complaint with prejudice as to those defendants. On March 11, 2009, plaintiff filed a second amended complaint essentially reiterating the same claims against defendants, adding Mackolin as a named defendant, and adding a fifteenth count alleging malicious prosecution by Villano and Mackolin.
The transcript of the proceedings indicates that the judge also granted the court administrator's motion to dismiss, but the record contains no order to this effect.
It is unclear from the record whether Mackolin was ever served with the second amended complaint in Tyson I.
On March 23, 2009, plaintiff filed a new complaint under Docket No. L-1529-09 (Tyson II). Tyson II was in most respects identical to the latest iteration of the complaint in Tyson I. It, too, added Mackolin as a named defendant, added a fifteenth count alleging malicious prosecution by Villano and Mackolin, and substituted the "Asbury Park Municipal Administrative Court Clerk" as a defendant.
On April 13, 2009, the Board moved for summary judgment seeking dismissal of the second amended complaint in Tyson I. Plaintiff did not oppose the motion, and on May 15, 2009, the judge entered an order dismissing Tyson I.
On May 19, 2009, the Board's attorney sent plaintiff a letter requesting that plaintiff withdraw the complaint in Tyson II. See Rule 1:4-8 (frivolous litigation). Plaintiff did not withdraw the complaint, and, after summary judgment was again granted on July 17, 2009, the Board moved for counsel fees and costs. The judge entered an order on September 11, 2009 granting the Board's motion in an unspecified amount. The September 11 order is not raised as an issue on appeal.
Mackolin moved to dismiss the Tyson II complaint for failure to state a claim, and the other defendants all moved for summary judgment or to dismiss based upon application of res judicata or collateral estoppel. Plaintiff opposed the motions, although we cannot ascertain from the record the nature of the opposition. On July 17, 2009, the judge entered orders dismissing Tyson II. This appeal followed.
The record only includes the orders as to the Board, APEA and Villano.
Plaintiff presents two points on appeal. First, he contends that the judge erred in dismissing his complaints as to Villano, the APEA, and Mackolin for failure to state a claim. Specifically, plaintiff asserts that his complaint stated a cause of action because those defendants "conspire[d] to violate [his] rights under the color of law," specifically, the LAD, "by becoming state actors"; "carr[ied] out an abuse of legal process to suppress [his] First Amendment rights"; and "work[ed] in collusion with a termination process against [his] employent [sic] . . . then refus[ed] a duty of fair representation."
In his second point, plaintiff claims that the judge erred in granting the Board summary judgment because she "fail[ed] to make a basic finding between [his] employee status and contractual rights," "thus violating constitutional and statutory requirements prescribed in the district's personnel policy."
To the extent the complaints in Tyson I and Tyson II named personnel of the Asbury Park municipal court as defendants, plaintiff has raised no argument in his point headings or his brief regarding error in the dismissal of those claims. See Rule 2:6-2(a)(5) (requiring the appellant's brief to include those "points to be argued"); see also Finderne Heights Condominium Ass'n, Inc. v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007) (noting that issues not briefed are waived on appeal).
Turning to the specific points plaintiff raises on appeal as to the Board, plaintiff filed no opposition to the motions that led to the March 6 and May 15, 2009 orders respectively dismissing the claims as to APEA and Villano and granting the Board summary judgment. The opposition he now posits was never raised before the judge and we refuse to consider it now. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) (noting that the appellate court need not address issues not properly raised below).
Moreover, any appeal from the dismissal of plaintiff's claims against the APEA and Villano, or the grant of summary judgment to the Board, in Tyson I is time-barred. Plaintiff filed his notice of appeal on October 5, 2009, more than 45 days after the entry of those orders. See R. 2:4-1(a).
Lastly, regarding the grant of summary judgment to the Board, we have not been supplied with a transcript of the judge's decision, if indeed her decision was orally placed on the record. The appellate record contains only those documents that the Board relied upon in support of the motion and a copy of the judge's May 15, 2009 order. We can apply no meaningful review to the decision granting the Board summary judgment. See, e.g., Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (concluding that deficiencies in the production of transcripts prohibited review of the plaintiff's LAD claims).
Turning to the disposition of Tyson II, defendant makes no argument with respect to the judge's decision to dismiss that complaint as to all defendants, save Mackolin, by application of res judicata or collateral estoppel. Any issues in that regard are, therefore, also waived on appeal.
What remains is plaintiff's contention that the judge erred in dismissing his claims against Mackolin pursuant to Rule 4:6-2(e). Plaintiff apparently filed opposition to the dismissal motion brought by Mackolin, yet we cannot discern the nature of his argument from the transcript of the judge's decision on the motion and it is unclear from plaintiff's brief and appendix what, if any, documents were supplied to the motion judge.
Like all the dispositive motions that preceded it, there was no oral argument.
When reviewing a dismissal pursuant to Rule 4:6-2(e), we employ the same standard as the motion judge. Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). Such a motion should be "approach[ed] with great caution" and should only be granted in "the rarest of instances." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 771-72 (1989). We view the allegations in the complaint with liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint. Id. at 746. "A motion to dismiss a complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005). The plaintiff's obligation on a motion to dismiss is "not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). "However, if the complaint states no basis for relief and discovery would not provide one, dismissal is the appropriate remedy." Cnty. of Bergen v. Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 12 6, 139 (App. Div. 2010) (quotation omitted).
We have independently reviewed plaintiff's allegations against Mackolin contained in Tyson II. Plaintiff alleged Mackolin was employed by a private law firm in West Long Branch and "was a "contracted NJEA attorney." Plaintiff's complaint fails to make any other specific, factual allegations against her.
In many counts, Mackolin is simply alleged to have acted with Villano and the APEA in denying plaintiff some contractual, statutory, or constitutional right. In other instances, Mackolin is alleged to have acted not in conjunction with the APEA, but with the Board. It is clear from the face of the complaint that Mackolin had no relationship with plaintiff's employer and could not be liable for the statutory claims that required plaintiff to prove state action by his employer, see, e.g., Downey v. Coalition Against Rape & Abuse, Inc., 143 F. Supp.2d 423, 437 (D.N.J. 2001) ("plaintiff must demonstrate that a person acting under color of law deprived her of a federal right" to demonstrate a § 1983 claim), or for his contractual claims. Allegations that Mackolin "repeated and reiterated false statements and misrepresentations" lacked any specificity. See, e.g., Russo v. Nagel, 358 N.J. Super. 254, 269 (App. Div. 2003) ("In order to properly plead a claim for libel or slander the defamatory words must be identified.").
In sum, we are convinced that Tyson II failed to state a cause of action against Mackolin and was properly dismissed by the motion judge.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION
Affirmed.