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Epperson v. Wal-Mart Stores

December 20, 2004


On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. HNT-L-328-01.

Before Judges Wefing, Payne and C.S. Fisher.

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


Argued October 6, 2004

Plaintiff Josefina Epperson filed a complaint, asserting various causes of action claimed to have resulted from her termination as an employee of defendant Wal-Mart Stores, Inc. At trial, after plaintiff rested her case, Wal-Mart successfully moved for an involuntary dismissal of plaintiff's malicious prosecution and wrongful termination claims. Because the trial judge mistakenly interpreted the law applicable to malicious prosecution claims, and because we are satisfied the jury could have found from the evidence that plaintiff met all the factors required to sustain such a claim, we reverse and remand for a new trial of the malicious prosecution claim.

On the other hand, we affirm the dismissal of the wrongful termination claim because, in these particular circumstances, that claim is purely derivative of the malicious prosecution claim. If, in these circumstances, we were to conclude that plaintiff possesses an actionable wrongful termination claim, to sustain it she would have to prove all the elements of her malicious prosecution claim; in addition, the damages available in the alleged wrongful termination claim would be no different from those available if plaintiff succeeds on the malicious prosecution claim. Accordingly, to allow both actions to proceed might engender jury confusion without creating for plaintiff a platform for any additional or alternative relief.


In granting Wal-Mart's motion for an involuntary dismissal, the trial judge was required to accept as true all the evidence presented in plaintiff's case and provide plaintiff, as well, with all legitimate inferences generated by that evidence. R. 4:37-2(b). As the Court stated in Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), the judicial function on a motion for involuntary dismissal"is quite a mechanical one [in which] [t]he trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." That same standard applies to our review of the trial judge's ruling. Accordingly, in determining whether the judge properly granted the motion for an involuntary dismissal, we are required to accept the following evidence as true.

In December 1998, plaintiff was in the tenth year of her employment with Wal-Mart, and was then serving as assistant manager at the Wal-Mart in Clinton. At that time, plaintiff was advised by the ex-wife of a department manager that her ex husband had stolen Wal-Mart property and that another employee, Dan, was selling stolen property, including car stereos, in the Wal-Mart parking lot. At plaintiff's request, the department manager's ex-wife placed this information in writing. Plaintiff thereafter showed this statement to her supervisor as well as another assistant manager. According to plaintiff, even though her supervisor, Richard Tanner, showed little concern about these possible thefts, she thought the allegations were worth further examination. That same month, Officer Oliveira of the Franklin Township Police Department was in the Clinton Wal-Mart investigating another theft allegation, when plaintiff informed him of the allegations made by the department manager's ex-wife.

On February 15, 1999, plaintiff asked Dan, where she could purchase a car stereo; Dan said he could get one for her within a few days. Plaintiff testified that she reported this conversation to both Oliveira and Tanner; Tanner instructed her to proceed with the transaction.

On March 1, 1999, Dan approached plaintiff and asked if she was still interested in buying a car stereo. Plaintiff indicated she was. Two weeks later, Dan informed her that he had a stereo available for $50; plaintiff offered $40 and he accepted. According to plaintiff's testimony, Dan insisted upon installing the stereo himself, but was unable to complete the installation and, as a result, put the stereo back in its container and placed it in the trunk of plaintiff's car.

Plaintiff immediately returned to the store and told Tanner what occurred. According to plaintiff, Tanner asked her to bring the stereo into the store. She declined, however, because Dan was also in the store and she did not want to arouse his suspicions. Tanner agreed, and the stereo was left in the trunk of plaintiff's car. Plaintiff also unsuccessfully attempted to contact Oliveira; she asked Jim Black, the in-store loss prevention employee, to contact Oliveira, but he, too, was unsuccessful in that regard.

A few days later, plaintiff observed Oliveira and Black speaking in the Clinton Wal-Mart. She approached them, and explained that Dan had sold her a stereo that was still in her car. Together, the three retrieved the stereo, and Black later confirmed, from its serial number, that the stereo came from Wal-Mart's inventory.

Despite her concerns about her own safety, Tanner told plaintiff not to worry and to continue to cooperate with the police. Plaintiff also reported these events to the Wal-Mart loss prevention hotline. At a later date, plaintiff advised Michelle Wilson, another loss prevention employee, that Oliveira wanted her to purchase another car stereo from Dan; Wilson advised her not to do so. Plaintiff also spoke to Chuck McDowell, Wal-Mart's district manager of loss prevention. He requested that she put the information in writing and come to work the next day, even though it was her day off.

As requested, plaintiff reported to work on April 13, 1999 and met with McDowell, who asked her to accompany him and Mark Larson, the store manager, to the police station. She complied. When they arrived, Oliveira asked her to sign a Miranda form. She refused. Another police officer interrogated plaintiff in the presence of both Larson and McDowell, insinuating that she had stolen car stereos from Wal-Mart. Plaintiff denied any wrongdoing. After accusing plaintiff of lying, threatening her with jail, and attempting to wrest from plaintiff an admission of shoplifting, Oliveira turned to McDowell and said to him,"I'll give you two minutes to talk to [plaintiff]." McDowell then told plaintiff he did not think she was telling the truth and attempted to persuade her to confess. Plaintiff refused. With that, McDowell looked toward Oliveira, who"stood up from his chair,... asked [plaintiff] to stand up,... start[ed] reading [plaintiff her] rights,... arrested [her], and handcuffed [her to] the chair." When plaintiff continued to advocate her innocence, she was released from the chair, but McDowell immediately terminated her employment and requested her key, badge and discount card. Plaintiff was then arrested, fingerprinted and searched.

Plaintiff was charged with shoplifting. She was required to appear twice in Franklin Township Municipal Court. During the first appearance, plaintiff was offered and rejected a plea bargain to a lesser charge. On the second occasion, sometime in March 2000, the complaint was dismissed. Plaintiff claimed that dismissal was ordered because the prosecutor had insufficient evidence to further pursue the matter.


On November 15, 2000, plaintiff commenced this action against Wal-Mart and Franklin Township, alleging numerous causes of action. The parties later stipulated to a dismissal with prejudice of the claims against Franklin Township. Other claims, including a cause of action based upon the Conscientious ...

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