Appeals court overturns verdict, admonishes judge for decision

ELIZABETH — A New Jersey appeals court has thrown out a $1.1 million wrongful discharge lawsuit against the board of education, saying hearsay testimony involving a motive could have prejudiced the jury.

The 18-page appellate decision said the alleged statements made out of court by a former board member and admitted in court by Superior Court Judge Lisa Chrystal over defense objections, fit none of the hearsay legal standards which allow the testimony to be admissible.

In fact, the court admonished Chrystal for allowing hearsay under these circumstances, saying there was no legal basis for her decision.

According to the appellate decision, which LocalSource obtained, the panel held that because of “plain error or abuse of discretion analysis,” the matter had to be reversed because Chrystal allowed the admission of hearsay testimony allegedly made by a former board member after her term expired.

The case was brought against the school board and superintendent Pablo Munoz by Anthony Pace, 63, who, along with 15 other security guards, lost their jobs as a result of 2006 staff reductions.

The original jury, which found for Pace, was one of 15 security guards that did not have their contracts renewed by the district as part of a staff reduction. Pace, however, felt that losing his job was the result of unfair treatment by the district.

Pace claimed he lost his job because of filing a workers compensation claim against the district while he worked there. However, upon appeal, that decision was found to be on very shaky ground legally.

In an 18-page statement, the appellate court said Chrystal improperly allowed two witnesses to repeat statements made by former Elizabeth Board of Education member Carol Cascio, who told several former employees of the district that someone on the board wanted to get rid of employees filing frequent compensation claims against the school district.

The district took the position that the employee contracts were not being renewed in 2006 because of  a $30 million budget shortfall, but the lawsuit claimed there were other reasons for Pace’s dismissal.

An employee with the district for 15 years, Pace had a number of incidences where either a work-related injury or other problems resulted in him being absent from work.

For example, according to the appellate court, in testimony it was revealed that Pace’s absenteeism was “above the norm.”

It included 13 days in 2005-2006, six days in 2004-2005, 16 days in 2003-2004 and twenty-two other days prior to that. Also factored into the decision by an immediate superior to not renew Pace’s contract, according to the decision, was the fact he took frequent breaks and repeatedly failed to have someone cover for him during that period of time.

One of Pace’s witnesses during the first trial was a former employee, Francesco LaFace, a former board of education electrician, who also had a workman’s compensation claim pending against the board.

LaFace recounted a conversation he had with Cascio, a former board member, who had been a member in the 2005-2006 school year. LaFace said Cascio told him that she had been in a closed door board meeting when the board discussed his situation along with others who have pending claims against the school board.

Another former employee, Vito Nufrio, previously the vice-principal at Edison House, and the last school Pace was employed at by the district, said in testimony that this same former board member indicated to him that the areas of reduction they were looking at “were people who had compensation cases” against the district.

Nufrio said he told Cascio he better be careful himself since he also had a compensation case pending against the district for an injury he received in 2003.

The appellate court said virtually the only evidence connecting the plaintiff’s work-related injury and any disability or perceived disability or workman’s compensation claim with his contract’s renewal, were the statements allegedly made by Cascio, the appellate court said. And the admission of the statements “is so consequential that it is clearly capable of producing an unjust result,” the decision said.

The court said it believed the statements made by Cascio were not only hearsay, but “hearsay within hearsay,” putting reliability into serious question.

“These statements raised the spector that the Elizabeth Board of Education acted improperly, while providing no details or names,” the court said.

“Without the statements, on this record, plaintiff could not have connected the nonrenewal with any disability, actual or perceived, or the nonrenewal and realization for a workman’s compensation claim,” the appellate court said.

Elizabeth Board of Education President Fernando Nazco said in a statement that despite the lengthy appeals process the district was “ultimately satisfied that the court determined the board was completely justified in its non-renewal of Mr. Pace, and any allegations that the district acted improperly were completely baseless.”