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Demas v. National Westminster Bank

June 24, 1998


Before Judges Dreier, P.g. Levy and Wecker.

The opinion of the court was delivered by: Wecker, J.A.D.

[9]    Argued April 28, 1998

On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Plaintiff appeals from a summary judgment dismissing her claim that she was terminated from her position as a bank teller in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. Because we agree with the contentions of defendant National Westminster Bank (NatWest) that plaintiff's allegations, even if true, do not state a cause of action under CEPA, we affirm. However, we do so for reasons additional to those expressed by the motion Judge.

Plaintiff she was employed by NatWest from April 5, 1993, until she was terminated on July 5, 1994. Plaintiff's complaint alleges that in the spring of 1994, she became aware that another employee of the bank, Richard Opong, an investment banker assigned to the same branch, was soliciting customers of the bank "in violation of bank policies, banking regulations and statutes, and the Security Exchange Act and security regulations." Plaintiff further alleges that she reported the activity to NatWest and that although it "end[ed] the illegal practice, . . . [NatWest] retaliated against Plaintiff and then terminated Plaintiff based upon fabricated charges." Finally, plaintiff alleges that NatWest retaliated against her for disclosing "to her superiors, an activity, policy, or practice that the employee believed to be in violation of law, rule, regulation promulgated pursuant to law." After the parties completed discovery, defendant moved for summary judgment.

It is undisputed that Opong was in fact misusing referrals from bank employees like plaintiff. Those referrals were intended to assist Opong to sell the bank's investment products to bank customers, and were not intended for him to divert the bank's business to his own private benefit. He offered plaintiff a referral fee, or "kickback," in the event he sold his own products to a customer whom she referred. Plaintiff realized that this was improper, declined to help him, and reported it to bank personnel. Others apparently also reported Opong's conduct, and he was promptly fired. That occurred in the spring of 1994. Plaintiff alleges that after several suspicious acts by Opong, she reported the situation immediately to Angela Petty, the Hoboken branch manager. Plaintiff testified at depositions:

I mean I knew that we were not allowed to work for competing companies. And that none of the information that we came into contact with, we signed a confidentiality thing, we're not allowed to tell anybody, anybody's business under the circumstances.

At Petty's request, plaintiff completed an affidavit with respect to Opong's conduct and participated in an investigative interview with another bank employee.

In her opposition to defendant's motion, plaintiff cites additional facts which we accept for purposes of this appeal. Plaintiff concluded from Opong's unpleasant behavior toward her that he had learned about her affidavit. She claimed to be nervous and sick over the incident and informed the assistant bank manager that she did not want to work on the following Saturday, when the bank operated with a reduced staff and Opong and an employee sympathetic to him would be working. Immediately thereafter, plaintiff claims that the bank manager, Petty, began treating her "horribly," said "nasty things," and was "just very vicious to me . . . ." Plaintiff also alleges that she was overworked at her teller's job, was "spread way too thin [and] was just exhausted," and told that to Petty. According to plaintiff, Petty overworked her over the next several months and was unsympathetic to her complaints. Among other things, according to plaintiff, Petty scolded her on several occasions for "going over her head," as when plaintiff inquired of the visiting district supervisor whether she would have to testify regarding Opong in court.

Finally, according to plaintiff, at the end of June, Petty changed her work schedule. She called plaintiff into her office and told her that she could no longer have Wednesday as her regular day off. Up until that time, plaintiff had been permitted to have Wednesdays off for her music practice sessions. Specifically, Petty informed plaintiff that she would have to work on Wednesday, July 6. On Tuesday, July 5, according to plaintiff, Petty allegedly followed plaintiff into the bathroom, screaming that she had to come to work the next day. According to plaintiff, she responded to Petty as follows: "If you cannot make your point in a civilized manner, we cannot have a discussion, we just can't." In response, Petty fired her, telling her to "sell" her money, return her keys, call personnel, and give an exit interview. In addition, Petty told her to "get the hell out" and called her a "troublemaker." While plaintiff and defendant dispute whether she was actually terminated at that time or not, we accept for purposes of this appeal plaintiff's representation that she was indeed terminated on that day.

Plaintiff alleges another incident prior to Opong's firing, an incident not the subject of her complaint, when she reported thefts by another teller. That teller was promptly fired. Plaintiff contends that Petty also scolded her on that occasion for reporting the thefts directly to security without notifying Petty first, thereby making her look bad. Clearly one of plaintiff's themes is that the bank manager harassed and retaliated against her for making her "look bad."

In dismissing plaintiff's complaint on summary judgment, the motion judge said that he had read these papers and in fact read the deposition excerpts of the plaintiff [and others] looking for something that I thought would make a connection between Mr. Opong *fn1 and the situation with him and her discharge or alleged discharge in July of that same year. And frankly I can't find it. I don't see a question of fact in this case that --that should go to a jury. I don't see how a reasonable jury could find that this plaintiff was fired by Nat West because of what -- of her blowing the whistle, so to speak, on Mr. Opong. I just don't see the -- don't see the connection.

She -- after she and the other employee gave their affidavits as to what Mr. Opong had done, he was fired by the bank. Clearly what he was doing violated bank policy. I don't know whether it would violate the law or not and I'm not--that's not important for my decision. I don't see that her firing was in any way related to what -- what she did in connection with Mr. Opong.

Now Ms. Petty perhaps didn't like the way the plaintiff went and talked to people over her head but certainly that didn't mean that Ms. Petty disagreed with her blowing the whistle on Mr. Opong and on the other people who were -- or person who was apparently stealing from fellow tellers. It's possible that Ms. Petty didn't like Ms. Demas' technique, so to speak, but to say that she was discharged in retaliation for blowing the ...

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