                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3091-16T3


VALERIE L. SMITH,

          Plaintiff-Appellant,

v.

BURLINGTON COUNTY
BRIDGE COMMISSION,

     Defendant-Respondent.
__________________________

                    Argued September 27, 2018 – Decided October 17, 2018

                    Before Judges Simonelli, O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Docket No. L-1111-15.

                    John F. Pilles, Jr. argued the cause for appellant.

                    Carmen Saginario, Jr. argued the cause for respondent
                    (Capehart & Scatchard, PA, attorneys; Carmen
                    Saginario, Jr., on the brief).

PER CURIAM
      Plaintiff Valerie L. Smith appeals from the March 9, 2017 order

dismissing the following counts of her complaint: one, breach of contract as a

third-party beneficiary of the Collective Negotiation Agreement (CNA); two, a

42 U.S.C. § 1983 action; four, a declaratory judgment that "just cause" for her

termination was inappropriate; five, attorney's fees under 42 U.S.C. § 1988; and

six, wrongful discharge under the employee handbook. We affirm for the

reasons set forth in the thorough, thorough November 30, 2016 written opinion

of Judge Susan L. Claypoole. We add the following comments.

      Plaintiff   worked   as   a   Burlington   County   Bridge   Commission

(Commission) tower operator and was a member of Local 194, International

Federation of Professional and Technical Engineers, AFL/CIO (the Union). As

such, she was covered by the CNA between the Union and the Commission.

Under Article 20 of the CNA "[t]he parties agree[d] to resolve problems arising

from differences through the Grievance and Disciplinary Action procedures

contained herein."

      On January 26, 2015, the Commission initially suspended plaintiff

without pay from her position after she did not follow proper procedure during




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a test lift of the bridge the previous day. A Loudermill 1 hearing was conducted

on January 29, 2015. On February 11, 2015, the Commission served plaintiff

with a Notice of Disciplinary Action advising termination of her employment.

She requested a disciplinary appeal hearing pursuant to the CNA. Before the

parties agreed upon a hearing date, plaintiff filed a verified complaint in the

Superior Court against the Commission. After numerous conferences with the

court, the parties agreed to stay the litigation until after the disciplinary hearing.

      The Commission conducted a hearing and sustained plaintiff's

termination. Thereafter, plaintiff reinstated her complaint in the trial court. The

complaint asserted counts for breach of contract as a third-party beneficiary of

the CNA, violation of her due process rights under 42 U.S.C. § 1983, a

prerogative writ claim to review the Commission's disciplinary action, a request

for a declaratory judgment, attorney's fees under 42 U.S.C. § 1988, and wrongful

discharge under the employee handbook. The Commission filed a motion to

dismiss or alternatively, for summary judgment and plaintiff filed a cross-

motion.

      After hearing argument, Judge Claypoole dismissed counts one, two, four,



1
  Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (a pre-disciplinary
hearing for public employees).
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                                          3
five, and six of plaintiff's complaint, agreeing with the Commission that

plaintiff's only cognizable claim was the action in lieu of prerogative writs

pursuant to Rule 4:69 raised in count three. Plaintiff later voluntarily dismissed

count three and the judge dismissed plaintiff's complaint with prejudice on

March 9, 2017. This appeal followed. On appeal, plaintiff argues the trial court

erred in dismissing the above referenced counts as a matter of law. We disagree.

      We review an order granting a motion to dismiss de novo. Castello v.

Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016) (citation omitted). A motion to

dismiss a complaint for failure to state a cause of action must be denied if, giving

plaintiff the benefit of all allegations and all favorable inferences, a cause of

action has been made out. R. 4:6-2(e); see Burg v. State, 147 N.J. Super. 316,

319-20 (App. Div. 1977).

      Plaintiff asserts error in the determination she did not have third-party

beneficiary standing to bring a breach of contract claim against the Commission

under the CNA. Plaintiff argues under Donnelly v. United Fruit Co., 40 N.J. 61

(1963), an individual bargaining unit member has standing to pursue a breach of

contract action against his or her employer as long as the collective bargaining

agreement does not contain a provision referring disciplinary disputes for

arbitration. Plaintiff's reliance on Donnelly is misplaced. In Donnelly, our


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                                         4
Supreme Court concluded "an individual employee has a statutorily-vested right

to present his grievance to, and to have it determined by, his employer when the

union declines to process it in his behalf." Id. at 87. The Court explained an

employee only has redress through the courts when his or her employer and

union representative refuse to hear or pursue the employee's grievance by the

procedures set forth in the collective bargaining agreement. Id. at 92 (citations

omitted). Here, the Commission did not refuse to hear her disciplinary appeal.

      Plaintiff may have been a third party beneficiary to the CNA, however,

the right to sue under the agreement is held by the Union, as the signatory to the

agreement. Hynes v. Clarke, 297 N.J. Super. 44, 52 (App. Div. 1997) (citing

Mossberg v. Standard Oil Co., 98 N.J. Super. 393, 402 (Law Div. 1967)).

Plaintiff cannot sue under the CNA and her residual rights are limited. "[A]n

employee covered by a collective-bargaining agreement is permitted to assert

legal rights independent of that agreement, including state-law contract rights,

so long as the contract relied upon is not a collective-bargaining agreement."

Troy v. Rutgers, 168 N.J. 354, 375 (2001) (quoting Caterpillar, Inc. v. Williams,

482 U.S. 386, 396 (1987)) (emphasis in original).

      Moreover, the CNA explicitly provides "[i]t is understood that any

disciplinary action, initiated by the Commission, against any member of the


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                                        5
[Union], does not constitute grievable matters." This clause alone illustrates the

Commission and Union did not intend to grant individual Union members

standing to challenge disciplinary actions in the court. Thus, we discern no error

in the trial judge's dismissal of plaintiff's complaint for lack of standing.

      Plaintiff additionally argues a right to de novo judicial review of "just

cause" for her termination and argues her termination deserves more scrutiny

than the permitted action in lieu of prerogative writs, which focuses on whether

the government entity's action was arbitrary, capricious, or unreasonable.

Plaintiff also asserts she has a viable claim for wrongful termination,

independent of the breach of the CNA, under the Commission's employee

handbook pursuant to Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 290-

91 (1985). Plaintiff alleges the trial court erred in dismissing her 42 U.S.C. §

1983 count because she was denied procedural due process as the departmental

hearing was delayed and she was denied meaningful discovery.

      We have carefully reviewed the record regarding these additional

arguments and have determined they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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