931 F. Supp. 2d 635
D.N.J.2013Background
- Plaintiff Mary Stapleton, NJ resident, was Assistant Merchandise Manager at DSW’s Cherry Hill, NJ store; DSW is an Ohio corporation.
- In March 2012, a customer with a toddler allegedly neglected the child in the store; plaintiff observed, intervened, and recommended the child be cleaned and diapered in-store.
- Plaintiff learned the customer failed to supervise; the child caused a disturbance and the customer threatened to punish the child.
- Plaintiff and a witness reported the incident to NJ DCPP; plaintiff provided the customer’s identifying information to assist the DCPP investigation.
- DSW’s District Manager and store manager terminated plaintiff on March 31, 2012 for allegedly violating confidentiality policy by conveying customer information to the DCPP.
- Plaintiff filed suit in NJ state court (CEPA and common-law wrongful discharge); DSW removed to federal court and moved to dismiss under Rule 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CEPA claim is viable based on protected activity | Stapleton refused to participate in policy; acted to protect child. | Plaintiff failed to engage in protected whistleblowing activity. | CEPA claim survives; protected activity found in refusal to participate. |
| Whether CEPA notice requirement applies | Notice not required when not disclosing to a public body; not applicable here. | Notice requirement applies if disclosing to a public body. | Notice requirement does not apply; no disclosure to a public body alleged. |
| Whether plaintiff waived the common-law wrongful discharge claim | Not explicitly argued against waiver; CEPA claim can coexist. | CEPA waiver provision forecloses common-law retaliation claim upon instituting CEPA action. | Common-law claim dismissed due to CEPA waiver. |
Key Cases Cited
- D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (N.J. 2007) (CEPA is broad, remedial; liberal construction)
- Yurick v. State, 184 N.J. 70 (N.J. 2005) (protects employees speaking out or declining to participate)
- Dzwonar v. McDevitt, 177 N.J. 451 (N.J. 2003) (need not prove actual violation; reasonable belief suffices)
- Sarnowski v. Air Brook Limousine, Inc., 510 F.3d 398 (3d Cir. 2007) (elements of CEPA claim in Third Circuit)
- Young v. Schering Corp., 141 N.J. 16 (N.J. 1995) (refusal to participate protected when aligns with public policy)
- Bowen v. Parking Auth. of Camden, 2003 WL 22145814 (D.N.J. 2003) (CEPA notice when disclosure to public body)
- Robles v. U.S. Envtl. Universal Serv., Inc., 469 F. App’x 104 (3d Cir. 2012) (CEPA waiver of common-law claims upon instituting CEPA action)