JOAN STEPHENSON v. JULIE MCWILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5649-07T35649-07T3

JOAN STEPHENSON,

Plaintiff-Appellant,

v.

JULIE MCWILLIAMS, JOANNA REED,

ELEANOR CARDUCCI, ANITA ULESKY,

BRAD GOTTFRIED, SUSSEX COUNTY

COMMUNITY COLLEGE, SUSSEX COUNTY

COMMUNITY COLLEGE ADJUNCT FACULTY

FEDERATION, CLAUDIA OLIVO, HANK

POMERANTZ, CHARLES CANNY, BILL

WAITE, SUSSEX COUNTY BOARD OF

CHOSEN FREEHOLDERS,

Defendants-Respondents.

__________________________________

 

Submitted November 5, 2009 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-583-04.

Joan Stephenson, appellant pro se.

McCarthy & Jennerich, attorneys for respondents Julie McWilliams, Joanna Reed, Eleanor Carducci, Anita Ulesky, Brad Gottfried, Sussex County Community College, Claudia Olivo, Charles Canny, Bill Waite, and Sussex County Board of Chosen Freeholders (Peter J. Lamont, on the brief).

Roth Horowitz, LLC, attorneys for respondents Sussex County Community College Adjunct Faculty Federation and Hank Pomerantz (Michael A. D'Aquanni, of counsel and on the brief).

PER CURIAM

Plaintiff Joan Stephenson appeals the grant of summary judgment dismissing her claims against defendants Sussex County Community College (College), certain individually named officers and employees of the College, defendant Sussex County Board of Chosen Freeholders, defendant Sussex County Community College Adjunct Faculty Federation (Federation), and defendant Hank Pomerantz, who was the Federation's Vice-President. We affirm in part and reverse in part.

I.

We discern the following facts from the record.

Stephenson, who was born in January 1940, was hired by the College as an adjunct professor of art in October 2000. She had attended the Art Students League of New York, but had no undergraduate or graduate degree when she was hired. She was apparently hired by defendant Julie McWilliams, the coordinator of the Fine Arts Degree Program at the College, on the basis of her prior experience in studying and teaching art. She taught at the College as an adjunct professor from October 2000 through the end of December 2002. Stephenson had a separate contract for each semester. Each contract provided that "[t]here is no guarantee of reappointment."

According to Stephenson, she and McWilliams had a disagreement about student grades during the 2002 summer semester. Although her deposition testimony on the issue is sometimes unclear, Stephenson maintains that McWilliams pressured her at the start of the semester to award inflated grades to several students. Stephenson explained that McWilliams had been advised by guidance personnel that the students were not competent to take the courses. At the end of the semester, Stephenson concluded that two students had plagiarized from a third, but she maintained that McWilliams refused to discuss those concerns. She felt continued pressure from McWilliams to give the students grades they did not deserve. These allegations have been denied by McWilliams. At the end of August 2002, McWilliams circulated a memorandum to all faculty and adjunct faculty concerning the proposed art course offerings for the 2003 spring semester. A draft of the proposed course offerings in art accompanied the memorandum.

According to McWilliams, at some point prior to September 23, 2002, Stephenson approached her and proposed a special topics art class on sculpting, which she offered to teach during the 2003 spring semester. On September 23, 2002, McWilliams submitted the special topics proposal to the College administration, listing Stephenson as the proposed instructor. The course proposal was approved. Stephenson maintains that someone else had proposed that she teach the special topics class.

At about the same time, McWilliams completed the proposed course teaching schedule for the 2003 spring semester. McWilliams proposed that Stephenson teach several classes that semester, including the special topics sculpture class. According to the College defendants, Stephenson did not accept the courses offered to her. Stephenson contends, however, that she agreed to teach some of the courses, but that the offer to teach that spring was withdrawn after she had accepted.

Stephenson further alleges that, during the conversation in which the teaching offer was withdrawn, McWilliams accused her of having Alzheimer's disease and a faulty memory. Stephenson claims that the courses that would have been assigned to her were taught by one or more adjunct professors who were not in her "protected class," by which she apparently means they were not yet of "retirement age."

At some point during the 2002 fall semester, McWilliams told Stephenson that one or more of her students had complained about her. Stephenson asked for a meeting with McWilliams and defendant Eleanor Carducci, Dean of Humanities and Liberal Arts, to discuss the student complaints. At the meeting, according to Stephenson, she expressed concern about whether the complaints would interfere with her re-appointment and was told by Carducci that "everything is fine."

Stephenson's final contract with the College started on September 3, 2002, and concluded on December 20, 2002. Because each contract provided that "temporary assignments expire immediately at the end of the term," Stephenson's employment ended as of December 20. Nevertheless, Stephenson believed that she continued to be a College employee despite the fact that she did not receive a contract for the 2003 spring semester. Because of the series of events described in the following paragraphs, she was eventually cautioned by campus security against returning to the campus without registering as a visitor.

On May 2, 2003, Pomerantz, on behalf of the Federation, attempted to schedule an informal grievance with College administrators with respect to the non-renewal of Stephenson's contract. On May 7, 2003, he notified Stephenson that the College had taken the position that she had been offered two teaching positions, which she had turned down. He added that he did not "expect that any further offers will come since they reviewed your file and found that you do not have a master's degree which is the usual requirement."

In May 2003, Stephenson sent a letter to defendant Joanna Reed, a professor at the College, which contained a picture of a Nazi officer hanging another individual. The Nazi officer had been altered to have long blond hair, similar to McWilliams. The letter stated that the picture was a representation of how Stephenson viewed her relationship with the College. Reed contacted the Newton Police because she believed the picture was threatening. Although McWilliams was upset by the letter, she did not pursue any charges with respect to the letter or the accompanying picture.

However, it appears that either Reed or McWilliams told the investigating office that Stephenson's contract was not renewed because she had difficulty with some of the students. Stephenson denied that she had poor student reviews; and the record contains a number of positive reviews.

Stephenson filed a small claims action against McWilliams in the Sussex County Special Civil Part, claiming ownership of a piece of office furniture. The case was tried in October 2003. The judge dismissed the complaint after he determined that the item at issue belonged to the College. During her testimony, McWilliams testified that, in November 2002, "students [were] coming to [her] complaining" about a class and that Stephenson became "extremely belligerent" when McWilliams spoke to her about it. McWilliams also testified that "[a]t that time, it also became apparent to [Carducci] that we could not hire her back at the college [b]ecause she doesn't have the proper credentials and degree." McWilliams added: "And, so that's why we haven't offered her any more courses."

In November 2003, Stephenson received a copy of the police report concerning the letter and picture sent to Reed. The report quoted the statement that Stephenson was not continued as an adjunct professor because there were student complaints about her performance. After receiving the document, Stephenson sought to have the Federation file another grievance. When the Federation did not do so, she filed one on her own. The College informed her that grievances had to be filed by the Federation under the terms of the applicable collective bargaining agreement. The Federation takes the position that failure to rehire an adjunct member of the faculty is not a grievable matter.

At some point in the latter part of 2004, Stephenson filed her first complaint involving her alleged wrongful termination and other wrongful actions by the College, its employees, the Federation and Pomerantz. The complaint was amended several times during the next several years. In October 2007, Stephenson filed her seventh, and last, amended complaint, setting forth twenty-one separate counts.

Although Stephenson's complaint is unclear and disjointed, we read it to allege the following causes of action: (1) violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based upon age discrimination; (2) violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, based upon her disagreement with McWilliams about grade inflation and for asserting her rights under the LAD; (3) intentional and negligent infliction of emotional distress in connection with allegations that Stephenson's students had complained about her and that the complaints were the reason for her termination; (4) hostile work environment; (5) defamation; (6) the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 623(a)(1); (7) conversion, with respect to the disputed furniture; (8) breach of the Federation's duty of fair representation; (9) breach of implied contract with respect to employment; (10) breach of the implied covenant of good faith and fair dealing with respect to employment; (11) breach of federal constitutional rights, specifically due process and equal protection; and (12) breach of rights guaranteed by Article 1, paragraph 1 of the New Jersey Constitution. The defendants duly answered and discovery ensued.

Following the completion of discovery, the defendants filed motions for summary judgment. On June 20, 2008, after oral argument, the Law Division granted summary judgment. The judge delivered a cursory oral decision at that time, which contained no findings of fact and conclusions of law as required by R. 1:6-2(f). The oral opinion was supplemented by a brief written decision, primarily on the issues related to the Federation, on June 20, 2008. The order of dismissal was entered that day. This appeal followed.

II.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Nini v. Mercer County Cmty. Coll., 406 N.J. Super. 547, 550-51 (App. Div.), certif. granted, 200 N.J. 206 (2009); Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated that there were no genuine disputes as to material facts; we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Many of the important facts in this case are disputed, despite defendants' assertions to the contrary. Consequently, we must base our analysis of the law using the facts in the record viewed in the form most favorable to Stephenson. Ibid. In that regard, we note that the record contains statements by or attributed to the College defendants that Stephenson was not hired to teach in the 2003 spring semester because she lacked the appropriate credentials and because of problems with students, despite assertions by the College defendants during the litigation that she had been offered and refused the opportunity to teach and to renew her contract for the 2003 spring semester. We also note that Stephenson denied the assertion that she declined to teach any courses during the 2003 spring semester. In addition, we further note Stephenson's assertion that she was pressured by McWilliams to give students grades they had not earned and that McWilliams told Stephenson and others that Stephenson suffered from Alzheimer's disease, which is generally considered an age-related condition.

III.

We first address Stephenson's arguments with respect to her claims against the College, its officers, and employees.

A.

With respect to her contractual allegations, Stephenson argues that the College's refusal to renew her teaching contract for another semester in 2003 was a breach of contract and of the related implied covenant of good faith and fair dealing. The defendants contend that she had no right to continued employment as an adjunct professor, and that the implied covenant is inapplicable because there was no underlying contract.

Stephenson's contract for the 2002 fall semester specifically provided, as did each of her prior contracts, that "[t]here is no guarantee of reappointment." It is well established law that courts enforce the contract that the parties themselves have made and, further, that they do not make a better contract for either party. See McMahon v. City of Newark, 195 N.J. 526, 545-46 (2008). "In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing." Noye v. Hoffman-LaRoche, Inc., 238 N.J. Super. 430, 434 (App. Div.), certif. denied, 122 N.J. 146 (1990).

As a result, Stephenson can have no cause of action for breach of contract or breach of the covenant of good faith and fair dealing based upon the College's simple refusal to give her a contract for the 2003 spring semester. We affirm the dismissal of those claims.

B.

We next turn to Stephenson's allegations of age discrimination under the LAD and ADEA. It is well settled that an employer may not refuse to reappoint a non-policy making employee for discriminatory reasons. Battaglia v. Union County Welfare Bd,, 88 N.J. 48, 62-63 (1981), certif. denied, 456 U.S. 965, 102 S. Ct. 2045, 72 L. Ed. 2d 490 (1982) ("[N]o functional difference exists between the failure to reappoint at the end of a fixed term and the dismissal of an at-will employee."); Nini, supra, 406 N.J. Super. at 556-57 (citing Squeo v. Borough of Carlstadt, 296 N.J. Super. 505 (App. Div. 1997)).

In analyzing claims brought under the LAD, "[o]ur Supreme Court has adopted the three-step burden-shifting analysis first developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005) (citing Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 82 (1978)).

[T]he court first determines whether plaintiff has produced sufficient evidence to demonstrate the elements of his or her prima facie case. If so, then the burden shifts to the employer to produce evidence of "legitimate, non-discriminatory reasons" that support its employment actions. Once the employer has done so, the burden shifts back to plaintiff to prove that the stated reasons were a pretext for discrimination.
 
[Ibid. (internal citations omitted).]

In Nini, supra, 406 N.J. Super. at 554-55, we described the prima facie requirements in an age discrimination case as follows:

In order to successfully assert a prima facie claim of age discrimination under the LAD, plaintiff must show that: (1) she was a member of a protected group; (2) her job performance met the "employer's legitimate expectations"; (3) she was terminated; and (4) the employer replaced, or sought to replace, her. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). In the case of age discrimination, the fourth element "require[s] a showing that the plaintiff was replaced with 'a candidate sufficiently younger to permit an inference of age discrimination.'" Bergen Commercial Bank v. Sisler, 157 N.J. 188, 213 (1999) (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)). If plaintiff can establish a prima facie case, the burden of production then "shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action." Zive, supra, 182 N.J. at 449. If the employer provides such a reason, plaintiff must show that the reason "was merely a pretext for discrimination." Ibid.

See also Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991); El-Sioufi, supra, 382 N.J. Super. at 167. Our Supreme Court has recognized that this burden is "rather modest." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3rd Cir. 1996)).

The burden then switches to the defendant employer to put forth "a legitimate, nondiscriminatory reason for the employer's action." Id. at 449. At that stage, there is no credibility or truth assessment. All the employer is required to show is that there was a legitimate explanation for its action. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S. Ct. at 1824-25, 36 L. Ed. 2d at 677-79. The employer "must come forward with admissible evidence of a legitimate, non-discriminatory reason for its rejection of the employee." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999). When the employer does produce such evidence, the presumption of discrimination is overcome. Id. at 211.

The burden then shifts back to the plaintiff to establish "by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449. "To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). The employee

does not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action."

[Zive, supra, 182 N.J. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]

"To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes, supra, 32 F.3d at 765. If the plaintiff fails to meet this obligation, the defendant is entitled to summary judgment. Zive, supra, 182 N.J. at 456.

The ADEA requires essentially the same showings to survive a motion for summary judgment for the purposes of our analysis. Bergen Commercial Bank, supra, 157 N.J. at 200.

Stephenson was fifty-nine when she was first hired by the College, and sixty-three in 2003 when she was not given a contract for the spring semester. Consequently, she was clearly a member of the protected class under both the LAD and ADEA. Inasmuch as the College asserts that McWilliams offered teaching assignments to Stephenson for the 2003 spring semester, we must assume that Stephenson was fully qualified to continue teaching at that time. Whether the non-renewal of her contract is viewed as a termination or a refusal to contract, the net result was that her employment at the College came to an end for what Stephenson contends were discriminatory reasons. See Rubin v. Chilton, 359 N.J. Super. 105, 109-11 (App. Div. 2003) ("To distinguish between a refusal to enter into a contract and the termination of a contract where the motivation is illegal discrimination would mock the beneficial goals of the LAD, remedial legislation which should be liberally construed to advance its beneficial purposes.").

It is not as clear that Stephenson can satisfy the requirements of the fourth prong. It is apparent that others taught at least some of the courses that McWilliams offered to Stephenson for the 2003 spring semester. Although we have been unable to discern the specifics in the record, Stephenson asserts that she was replaced by adjunct professors who were not in the protected class, i.e., "of retirement age." The College defendants have not addressed that issue in their merits brief. As a result, we assume that those teachers were "sufficiently younger to permit an inference of age discrimination," as required by Nini, supra, 406 N.J. Super. at 554, for an LAD claim. See also Bergen Commercial Bank, supra, 157 N.J. at 213 (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)).

In any event, because she is entitled to all favorable inferences, we must assume for present purposes that Stephenson presented a prima facie case in opposition to the summary judgment motion. The College's explanation for not contracting with Stephenson for the 2003 spring semester is that Stephenson was offered but refused teaching assignments. Although the assertion is disputed by Stephenson, it nevertheless satisfies the obligation to offer a non-discriminatory explanation for the non-renewal.

We conclude that there are facts in the record suggesting that the College's explanation was a pretext. They include: (1) Stephenson's assertion that the offer of employment was withdrawn after her acceptance rather than rejected; (2) the statement, reflected in the police report, that Stephenson was "let go from the college after receiving several complaints from students," and (3) the statement by McWilliams during her testimony at the Special Civil Part trial in October 2003 that Stephenson was not rehired because of a lack of the proper academic credentials, especially inasmuch as she had the same credentials when she was first hired and when her contract was renewed several times thereafter. Consequently, Stephenson has met her obligation to demonstrate that there is a genuine issue of material fact as to the pretextual nature of the College defendants' explanation for non-renewal of her contract.

That the College defendants may have given Stephenson a false explanation for their refusal to offer her a contract for the 2003 spring semester does not necessarily mean that their actions were the result of age discrimination. As required by Zive and Viscik, Stephenson must be able to demonstrate that there was a discriminatory animus. The only arguably age-related reference to which Stephenson points in her merits brief is her own assertion, made during her deposition, that McWilliams stated that she had Alzheimer's disease and loss of memory. During her cross-examination of McWilliams at the Special Civil Part trial in October 2003, Stephenson had also asserted that McWilliams "had passed around the college" that Stephenson had the disease. Alzheimer's disease and memory loss are frequently viewed as age-related conditions. They are also disabilities entitled to protection under N.J.S.A. 10:5-4.1 and -12. Although they can potentially render an employee unable to perform the essential duties of a position, the College defendants have not raised that issue at this juncture.

Although McWilliams' proofs with respect to an age-based discriminatory animus might appear relatively weak at this point, we cannot say on this record that a jury could not conclude "that age, as a prohibited consideration, played a role in the decision-making process and had a determinative influence on the outcome." Reynolds v. The Palnut Co., 330 N.J. Super. 162, 167 (App. Div. 2000); see also Miller v. CIGNA Corp., 47 F.3d 586, 598 (3d Cir. 1995).

For these reasons, we reverse the dismissal of the LAD and ADEA claims and remand to the Law Division for further proceedings consistent with this opinion.

C.

Stephenson also argues that the non-renewal of her contract was in retaliation for her having challenged McWilliams' insistence that she inflate the grades of students, whom she believed had engaged in plagiarism. Neither the motion judge nor the defendants in their merits brief cited any law with respect to the CEPA issue.

CEPA was enacted in 1986 "to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered 'remedial' legislation and therefore should be construed liberally to effectuate its important social goal." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).

For the purposes of this case, to establish a prima facie case under CEPA, Stephenson would have to demonstrate that she "object[ed] to, or refuse[d] to participate in any activity, policy or practice which [she] reasonably believed . . . [was] incompatible with a clear mandate of public policy concerning the public health, safety or welfare . . . ." N.J.S.A. 34:19-3(c)(3). Stephenson asserts that she objected to McWilliams' request that she give the students good grades without reference to their performance at the beginning of the 2002 summer semester and her subsequent unsuccessful attempts to address with McWilliams their apparent plagiarism at the end of the semester. McWilliams has denied those factual allegations, so there is still a genuine issue of material fact as to their truth.

The "burden shifting analysis" applicable in LAD cases also applies to CEPA cases. Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008). As we have already observed, there is a factual basis in the record for a finding that the College's stated reason for not renewing Stephenson's contract was pretextual.

On this record, especially given the lack of legal analysis by the motion judge and defense counsel, we are not prepared to hold that, in the context of a county community college, high standards of academic honesty do not implicate "a clear mandate of public policy concerning the public health, safety or welfare." A plaintiff may be mistaken in his or her belief, and there may, in fact, be no violation of public policy, but he or she may proceed if the belief was "reasonable." Turner v. Assoc'd. Humane Soc'ies, Inc., 396 N.J. Super. 582, 593 (App. Div. 2007). Nor are we prepared to conclude that refusal to continue temporary teaching assignments or revocation of an offer of such employment do not constitute "[r]etaliatory action" for the purposes of N.J.S.A. 34:19-2(e).

As a result, we reverse the dismissal of the CEPA claim and remand to the Law Division for further proceedings consistent with this opinion.

D.

We turn briefly to Stephenson's claims for conversion with respect to the office furniture. Those claims have been adjudicated in the action she brought against McWilliams in the Special Civil Part in 2003. They were decided against her on the merits, the trial judge having decided that the furniture belonged to the College. There was no appeal. Any attempt by Stephenson to raise the issues again in a separate action is barred by the doctrine of res judicata. Velasquez v. Franz, 123 N.J. 498, 505 (1991) ("In essence, the doctrine of res judicata provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." (citing Roberts v. Goldner, 79 N.J. 82, 85 (1979))).

Consequently, we affirm the dismissal of all claims related to the office furniture.

E.

Stephenson also makes allegations sounding in defamation with respect to oral and written statements made by McWilliams in connection with the Special Civil Part action. Those claims are clearly barred by the litigation privilege. "'A statement made in the course of judicial . . . proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in [that] setting[].'" Hawkins v. Harris, 141 N.J. 207, 213 (1995) (quoting Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563 (1990)).

The litigation privilege applies to "'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Id. at 216 (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)). It is not "limited to statements made in a courtroom during a trial," but rather, "'extends to all statements or communications in connection with the . . . proceeding.'" Ibid. (quoting Ruberton v. Gabage, 280 N.J. Super. 125, 133 (App. Div. 1995)).

We therefore affirm the dismissal of all claims sounding in defamation.

F.

Stephenson also seeks to state a cause of action for intentional infliction of emotional distress. Our review of the record leads us to conclude that there are no facts in the record that would support that cause of action. See Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009) ("'[B]ecause the [required] severity of the emotional distress raises questions both of law and fact, the court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved.'" (quoting Tarr v. Ciasulli, 181 N.J. 70, 77 (2004))).

We see no facts in the record to support such claims, and affirm their dismissal.

G.

We address Stephenson's claims against the County defendants and the Board of Freeholders only briefly. The College is a separate corporate entity, governed by its own board of trustees. See N.J.S.A. 18A:64A-11 and -12. There is no evidence in the record to support a claim against the County defendants or the Board of Freeholders with respect to actions taken by the College, its officers, or its employees. Consequently, we affirm the dismissal of all claims against them.

H.

Stephenson's remaining arguments with respect to the College defendants do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

IV.

We now address the issues on appeal as they relate to the Federation and Pomerantz. In very general terms, Stephenson contends that the Federation violated its duty of fair representation to her as a union member, based largely on its alleged unwillingness to pursue a grievance on her behalf and to advise her with respect to other avenues of relief.

A labor union has a duty to process grievances for its members in "complete good faith," which has been described as "the obligation of fair representation." D'Arrigo v. N.J. State Bd. of Mediation, 119 N.J. 74, 79 (1990). However, there is no factual support for any allegation in this case that the Federation favored other union members over Stephenson. Indeed, Pomerantz began an informal union grievance on Stephenson's behalf, which was discontinued only when management took the position that she had been offered and refused teaching assignments for the 2003 spring semester.

An action for breach of the duty of fair representation under circumstances such as those presented in this case requires facts demonstrating that the Federation's actions were "arbitrary, discriminatory, or in bad faith." Riley v. Letter Carriers Local, 668 F.2d 224, 228 (3d. Cir. 1981). We find no such facts in the record, even according Stephenson the benefit of all favorable inferences. Even if the Federation was wrong about the merits or timeliness of her request for the filing of a grievance, that would not be a sufficient basis for an action against it, absent conduct that is "arbitrary, discriminatory, or in bad faith." Ibid. A union is not required to present a grievance that it considers to be without merit. Faust v. RCA Corp., 657 F. Supp. 614, 621 (M.D. Pa. 1986).

Stephenson's remaining arguments with respect to the Federation and Pomerantz do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that Stephenson clearly had access to the collective bargaining agreement when she filed her own grievance in late 2003, because it is quoted in that document. She has not cited any law or contractual requirements to support her assertion that the Federation was required to give her legal advice with respect to common law or statutory causes of action.

The dismissal of all claims against the Federation and Pomerantz is affirmed.

V.

In summary, we reverse the dismissal of Stephenson's claims against the College defendants to the extent they are based upon the LAD, ADEA, and CEPA. We affirm the dismissal of all claims against the County defendants and the Freeholders, as well as all other claims involving the College, its officers, or its employees. We also affirm the dismissal of all claims against the Federation and Pomerantz. We remand only the claims against the College defendants that are based upon violations of the LAD, ADEA, and CEPA for further proceedings consistent with this opinion.

Affirmed in part and reversed in part.

The individual College defendants not mentioned in the text of the opinion are Anita Ulesky, Vice President and Dean of Academic Affairs; Brad Gottfried, President of the College; Claudia Olivo, Director of Human Resources; Charles Canny, Director of Facilities; and Bill Waite, Interim Vice President for Academic Affairs.

There are differences between the two statutes concerning the nature of the fourth prong of a prima facie case, see Williams v. Pemberton Twp. Public Schools, 323 N.J. Super. 490, 501-02 (App. Div. 1999), but we assume that there is a prima facie case under the easier standard of the ADEA for the purposes of our analysis.

(continued)

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A-5649-07T3

February 26, 2010