ROSS v. ARENA et al

Filing 31

OPINION. Signed by Judge Susan D. Wigenton on 10/10/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RANDI ROSS,

v.
JENNIFER ARENA
UNIVERSITY,

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Plaintiff,
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and RUTGERS :
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Defendants.
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Civil Action No. 11-7153 (SDW) (MCA)

OPINION

October 10, 2013

WIGENTON, District Judge.
Before the Court is Rutgers, The State University of New Jersey (“Rutgers”) and Jennifer
Arena’s (“Arena”) (collectively “Defendants”) Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56(c). The Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391. This Court, having considered the
parties’ submissions, decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78. For the reasons stated below, Defendants’ Motion for Summary Judgment is
GRANTED.
FACTUAL HISTORY
Plaintiff is a former Rutgers employee and writing professor for the Rutgers-Newark
Writing Program. (Defs.’ Statement of Facts (“SOF”) ¶¶ 2-3.) Plaintiff worked as a part-time
lecturer at Rutgers beginning in the fall of 1998 for approximately twelve years. (Id. ¶¶ 3, 5.)
Arena is currently the Director of the Rutgers-Newark Writing Program. (Id. ¶ 6.)
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While Plaintiff was employed at Rutgers, she was a member of the Part-Time Lecturer
Faculty Chapter, Rutgers Council of AUUP Chapters American Association of University
Professors – American Federation of Teachers, AFL-CIO (the “Union”). (Id. ¶ 8.) Rutgers and
the Union “entered into a collective negotiations agreement effective July 1, 2007 through June
30, 2011 (“CNA”).”

(Id. ¶ 9.)

The CNA contains a “four-step Grievance Procedure for

Grievances Arising Within the Executive Vice-President for Academic Affair’s or Provost’s
Jurisdiction.” (Id. ¶ 10.) Steps One, Two, and Three constitute a negotiated grievance process.
(Id.) Step Four provides the Union with an option to arbitrate the grievance if it is unsatisfied
with the decision made in Step Three. (Id. ¶ 11.)
Beginning in the spring of 2008, Arena began to receive complaints from Plaintiff’s
students about her performance such as tardiness and inappropriate conduct. (Id. ¶¶ 13-20.)
Additionally, Arena observed that Plaintiff failed to comply with the Writing Program’s
curriculum. (Id. ¶¶ 15-18.) Arena discussed these concerns with Plaintiff on multiple occasions.
(Id. ¶¶ 13, 17-18, 20-27.)
On October 2, 2009, Arena informed two Deans of the issues regarding Plaintiff’s
performance including: “(1) tardiness; (2) adherence to writing program policies; (3) consistency
with pedagogical values and orientation of the writing program; and (4) numerous student
complaints.” (Id. ¶ 34.) In addition to the student complaints, which spanned from September
2009 to October 2010, Plaintiff received negative reviews on her student evaluations during the
spring 2008, fall 2009, and spring 2010 semesters. (Id. ¶¶ 35-47.) On October 14, 2010, due to
Plaintiff’s poor performance, Plaintiff was informed by Arena that “she will not be appointed to
teach any classes during the spring 2011 semester” in accordance with the CNA. (Id. ¶ 48.)
Plaintiff then filed a grievance with the Union. (Id. ¶ 49.) On December 1, 2010, the President

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of the Part-Time Lecturer Faculty Chapter (PTLFC)AA, filed a grievance on Plaintiff’s behalf
stating that the “poor teaching evaluations and student complaints are . . . without merit and do
not justify termination.” (Id. ¶ 50.) Further, Plaintiff was “not informed prior to termination of
her employment . . . that there were conduct or performance issues that might jeopardize” her
employment. (Id.)
On December 22, 2010, Arena denied Plaintiff’s grievance at Step One based upon the
student complaints and overall performance concerns. (Id. ¶ 51.) On January 20, 2011, Plaintiff
appealed the Step One decision. (Id. ¶ 52.) On February 24, 2011, a Step Two hearing took
place. (Id. ¶¶ 53-54.) On March 10, 2011, Plaintiff’s grievance was denied at Step Two based
upon the totality of the evidence. (Id. ¶ 55.) On March 23, 2011, Plaintiff requested a Step
Three hearing, through the Union, to appeal the Step Two decision. (Id. ¶ 56.) On April 28,
2011, a Step Three hearing was held, and Plaintiff’s grievance was again denied. (Id. ¶¶ 57-60.)
Plaintiff’s Union opted not to pursue the matter to arbitration. (Id. ¶ 61.)
PROCEDURAL HISTORY
Plaintiff filed her Complaint on or about October 12, 2011 in Superior Court in Essex
County alleging: (1) defamation of character; (2) lack of procedural due process; and (3) breach
of contract based on her Union’s collective negotiations agreement. (Dkt. No. 1.) On December
8, 2011, Defendants removed the matter to this Court. (Id.) On May 22, 2013, Defendants filed
the instant Summary Judgment Motion. (Dkt. No. 26.) Plaintiff did not oppose the Motion.
(Dkt. No. 30.)
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

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P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986). A fact is only “material” for purposes of a summary judgment motion if a dispute
over that fact “might affect the outcome of the suit under the governing law.” Id. at 248. A
dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. The dispute is not genuine if it merely involves
“some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving
party meets its initial burden, the burden then shifts to the nonmovant who must set forth specific
facts showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. See Shields v. Zuccarini, 254 F.3d 476, 481
(3d Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255).
The nonmoving party “must present more than just ‘bare assertions, conclusory
allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the

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nonmoving party is required to “point to concrete evidence in the record which supports each
essential element of its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284,
286 (D.N.J. 2004). If the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which . . . [it has] the burden of
proof,” then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322-23.
DISCUSSION
I.

Defamation of character
“In order to prove defamation, a plaintiff must establish, in addition to damages, that the

defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was
false, and (4) which was communicated to a person or persons other than the plaintiff.” Singer v.
Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005).

“Whether a statement is

defamatory depends on its content, verifiability, and context.” Lynch v. N.J. Educ. Ass’n, 161
N.J. 152, 167 (1999). Statements of fact that can be proven to be true or false are actionable;
however, statements of opinion are unverifiable and neither true nor false. See id. As the Third
Circuit has noted, “[t]o survive a motion for summary judgment on a defamation claim, the
plaintiff ‘must plead facts sufficient to identify the defamatory words, their utterer and the fact of
their publication. A vague conclusory allegation is not enough.’” Robles v. U.S. Env’t Universal
Servs., Inc., 469 F. App’x 104, 109 (3d Cir. 2012) (quoting Zoneraich v. Overlook Hosp., 212
N.J. Super. 83, 101 (App. Div. 1986)).
Here, Plaintiff claims that “Step One, Two, and Three Decisions of the grievance
procedure . . . are untrue and constitute a defamation of my character.” (Compl. at 4; see SOF ¶
67.) In support, Plaintiff provides examples such as “[Arena] claims that when she wrote her

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highly positive recommendation for me in 2008, she really didn’t know me;” “[Arena] writes
that she never heard such awful complaints about a teacher as students were giving her about
me;” and “Ms. Arena also writes that I routinely got the lowest student evaluations in the
program.”

(Compl. at 4-5.)

Plaintiff testified that her defamation claim is based on the

grievance decisions that allegedly contain distorted facts and untruths. (SOF ¶ 64.) However,
Plaintiff did not provide any testimony further detailing the alleged defamatory statements. (See
SOF ¶ 67.)
Based on the record, this Court finds that Plaintiff fails to set forth a viable, actionable
claim for defamation.

Although Plaintiff alleges that the union grievance “contain[ed]

distortions, significant omissions of truth, and untruths that unfairly defame my character,” she
does not provide adequate facts or allegations in support of this contention. (Compl. at 3.)
Importantly, performance evaluations—as they are grounded in expressions of opinion—cannot
be used to support a defamation claim. See Kennedy v. Chubb Grp. of Ins. Companies, 60 F.
Supp. 2d 384, 398 (D.N.J. 1999). As Plaintiff fails to satisfy a necessary element required to
establish a claim for defamation, summary judgment as to this claim is warranted.
II.

Lack of Procedural Due Process
To establish a procedural due process claim under 42 U.S.C. § 1983, a plaintiff must

demonstrate two elements: (1) deprivation of an “asserted individual interest[] [that is]
encompassed within the fourteenth amendment’s protection of life, liberty, or property; and (2)
[that] the procedures available [did not provide] the plaintiff with due process of law.” Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Robb v. City of Philadelphia, 733 F.2d 286,
292 (3d Cir. 1984) (internal quotation marks omitted). “[A] state cannot be held to have violated
due process requirements when it has made procedural protection available and the plaintiff has

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simply refused to avail himself of them.” Id. (quoting Dusanek v. Hannon, 677 F.2d 538, 543
(7th Cir. 1982) (internal quotation marks omitted)). “Where a due process claim is raised against
a public employer, and grievance and arbitration procedures are in place, [the Third Circuit has]
held that those procedures satisfy due process requirements . . . .” Dykes v. Se. Pa. Transp.
Auth., 68 F.3d 1564, 1571 (3d Cir. 1995).
In the instant matter, this Court finds that the grievance procedure satisfied the demands
of procedural due process. Plaintiff fails to provide any facts supporting her claim that her due
process rights were violated or that the grievance procedure was inadequate. See Dykes, 68 F.3d
at 1571. To the extent that Plaintiff did have any issues, they were addressed during the
negotiated grievance process. (Defs.’ Br. 15-20; see SOF ¶¶ 48-61.) Furthermore, Plaintiff’s
Union determined that it was unnecessary to pursue arbitration with respect to Plaintiff’s matter.
(Defs.’ Br. 6, 19; SOF ¶ 61.) Plaintiff could have petitioned her Union to proceed to arbitration;
however she chose not to do so. (Defs.’ Br. 19; SOF ¶ 11.) At bottom, there is insufficient
evidence to support Plaintiffs’ claim for lack of procedural due process. Accordingly, this Court
finds that on the merits, no genuine issues of material fact exist and summary judgment is
warranted.
III.

Breach of Contract
Plaintiff claims that Rutgers’s decision to terminate her was in breach of the Union’s

CNA.

(Compl. at 3.)

Under New Jersey’s Employer-Employee Relations Act, N.J.S.A.,

34:13A-5.3, “[g]rievance and disciplinary review procedures established by agreement between
the public employer and the representative organization shall be utilized for any dispute covered
by the terms of such agreement.” N.J. Stat. Ann. § 34:13A-5.3 (West 2013). In the instant
matter, the evidence shows that the CNA had a grievance procedure in place for such disputes

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and Plaintiff utilized the grievance process. (Defs.’ Br. 15-19; see SOF ¶¶ 48-61.) Specifically,
Plaintiff engaged in three steps of the grievance procedure. (Defs.’ Br. 15-19; see SOF ¶¶ 4861.) Plaintiff’s Union—within its discretion—made the decision not to pursue arbitration against
Rutgers. (Defs.’ Br. 6, 19; SOF ¶ 61.) As Defendants point out, arbitration would have resulted
in a final, binding decision; however, Plaintiff chose not to petition the Union to carry out the
matter to arbitration. (See Defs.’ Br. 6.) Plaintiff has failed to identify any genuine issues of
material fact with respect to this issue.
Additionally, this Court notes that Plaintiff is not a party to the CNA agreement. Thus,
Plaintiff lacks standing to maintain a claim for breach of contract in connection with the CNA
agreement. See Hynes v. Clarke, 297 N.J. Super. 44, 52 (App. Div. 1997) (“Employees have
been labeled third party beneficiaries to a collective bargaining agreement negotiated on their
behalf; however, their rights to sue under such an agreement are generally held by the union, as
the signatory to the agreement.”).
CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment is
GRANTED.
s/Susan D. Wigenton, U.S.D.J.
cc:

Madeline Cox Arleo, U.S.M.J.

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