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Maryjo Salamone v. Carter's Retail

January 28, 2011

MARYJO SALAMONE,
PLAINTIFF,
v.
CARTER'S RETAIL, INC., DEFENDANT.



The opinion of the court was delivered by: Arpert,u.s.m.j

NOT FOR PUBLICATION

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This matter comes before the Court on a Motion by Defendant Carter's Retail, Inc. ("Defendant" or "Carter's") for a protective order with respect to Plaintiff MaryJo Salamone's ("Plaintiff") interrogatories nos. 19 and 25 [dkt. entry no. 28], returnable January 3, 2011. Plaintiff filed opposition on December 20, 2010 and Defendant filed a reply on December 27, 2010. For the reasons stated herein, Defendant's Motion is denied.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed a Complaint [dkt. entry no. 1] in state court on October 6, 2009, which Defendant removed to the United States District Court for the District of New Jersey, alleging "wrongful termination in violation of company policy" (see Pl.'s Complaint, dkt. entry no. 1 at 2-4), "age discrimination" (Id. at 4-5) and "disability discrimination" in violation of the New Jersey Law Against Discrimination ("NJLAD") (Id. at 5), as well as defamation/slander (Id. at 6-7) against Defendant. By way of background, Plaintiff alleges that, as a member of a protected class as an employee over age forty (40), she was wrongfully terminated by Defendant after approximately thirteen (13) years of employment during which she received only positive performance reviews. Id. at 1-2, ¶¶ 3-5. Plaintiff alleges that she worked as a store manager and that prior to her termination, she was offered a position to manage Defendant's newest store in New Jersey which she turned down due to a physical disability. Id. at 2, ¶¶ 6-7. Plaintiff alleges that she was terminated by Defendant on October 31, 2008 due to "timecard fraud". Id. at 2, ¶ 10.

More specifically, Plaintiff alleges that she was "terminated by Defendant for working off the clock, or working about five hours without charging Defendant for her time, ...[and] replaced by a younger, less-experienced employee". See Pl.'s Opp'n Br. at 1. Based upon "Defendant's employee handbook" (Id.), and Plaintiff's contention that Defendant "applies its policies and procedures uniformly throughout the company" (Id. at 3), Plaintiff argues that she should not have been terminated for any offense that she may have committed because "working off the clock is subject to progressive discipline short of termination" and because "timecard fraud [is] an offense distinct from working off the clock" (Id. at 1). Thus, Plaintiff maintains that Defendant has used the charge of timecard fraud, or "fraudulently adjusting recorded time worked or falsifying Company information", as pretextual grounds for her immediate termination. Id. Further, Plaintiff claims that "she was treated differently from similarly-situated employees accused of working off the clock". Id. As such, Plaintiff argues that in order to prove her case, "she requires information about all similarly-situated employees who were disciplined for working off the clock" (Id.) on a "corporate-wide basis" (Id. at 3).

Defendant claims to be "the largest branded marketer of baby and children's clothing in the United States", with over "6,000 employees in 491 stores nationwide". See Def.'s Br. at 2. Each of Defendant's retail stores "is supervised by a Store Manager", "the Manager of each store reports to a District Manager", the District Managers "report to one of four Regional Vice Presidents", and the "Regional Vice Presidents...report to Carter's Senior Vice President of Store Operations". Id. At the time of her termination, Plaintiff was the Store Manager of "Store #43 in Manasquan, New Jersey". Id.

Defendant maintains that it "terminated Plaintiff's employment for violating Company policy". See Def.'s Br. at 2. Defendant points out that "as a Store Manager, Plaintiff had been paid on an hourly basis since January 1, 2008, when Defendant converted the position from an exempt position to a non-exempt position" after previously distributing "information about the effect of the change and held training classes to insure compliance with state and federal wage and hour laws". Id. Defendant maintains that after discovering that "Plaintiff had been working off the clock and falsifying her time records in order to underreport the number of hours she worked", Defendant terminated her employment. Id. at 2-3. More specifically, Defendant claims that "Plaintiff's time records" demonstrated a "a pattern of conduct, both before and after October 7, 2008, indicating that Plaintiff was working off the clock" in order "to avoid reporting any overtime". Id. at 3.

During the course of discovery, Plaintiff propounded interrogatories to which Defendant responded as follows:

Interrogatory No. 19: Identify any and all other employees who were terminated by Carter's within one year before or after October 31, 2008, the date on which Plaintiff's employment was terminated.

June 17 Response: Plaintiff is the only Carter's employee in the State of New Jersey whose employment was terminated due to timekeeping-related misconduct within one year before or after October 31, 2008. To the extent this Interrogatory seeks information related to terminations at stores or locations outside the State of New Jersey or for reasons other than timekeeping-related misconduct, Defendant objects on the basis that the Interrogatory is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

August 24 Response: In Interrogatory No. 19, Plaintiff has requested the identities of all employees at any Carter's location whose employment was terminated for any reason within one year before or after October 31, 2008. This interrogatory is overly broad, as it is neither limited to the geographic area where Plaintiff worked (New Jersey) nor the specific type of misconduct for which Plaintiff was discharged (i.e. timekeeping misconduct). For purposes of allegations of discrimination, employees must be similarly-situated to Plaintiff. Here, individuals whose employment was terminated for absenteeism, theft, or reasons having nothing to do with timekeeping misconduct are not similarly-situated to Plaintiff. Likewise, individuals whose employment was terminated in Montana, New Mexico, Arkansas, and the like are not similarly-situated to Plaintiff either, as their terminations necessarily would have involved different decision-makers. Consequently, Carter's appropriately limited the scope of this Interrogatory to the identities of those employees in New Jersey whose employment was terminated for timekeeping-related misconduct... .

Interrogatory No. 25: Set forth the names of any and all other employees who were either terminated for timecard fraud or who were over age forty and who were terminated by Carter's for any other reason within one year before or after October 31, 2008, the last known address of each person, the reason for each such person's termination, and the name and age of any person who filled the position vacated by any such terminated employee.

June 17 Response: Plaintiff is the only Carter's employee in the State of New Jersey whose employment was terminated due to time-keeping related misconduct within one year before or after October 31, 2008. To the extent this Interrogatory seeks information related to terminations at stores or locations outside the State of New Jersey or for reasons other than time-keeping related misconduct, Defendant objects on the basis that the Interrogatory is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

August 24 Response: In Request No. 25, Plaintiff has requested the identities of all employees (regardless of age) at any Carter's location whose employment was terminated for "time card fraud" within one year before or after October 31, 2008 and all employees over the age of 40 at any Carter's location whose employment was terminated for any reason within one year before or after October 31, 2008. As with Interrogatory No. 19, and for the reasons explained above with respect to Interrogatory No. 19, this Interrogatory is overly broad because it is not limited in territory or scope to employees that are similarly-situated to Plaintiff. Carter's appropriately limited the scope of this Interrogatory to the identities of those employees in New Jersey whose employment was terminated for timekeeping-related misconduct... .

See Cert. of James M. Powell ("Powell"), Ex. B.

Consistent with the Court's Scheduling Orders filed April 14, 2010 (see dkt. entry no. 24) and June 3, 2010 (see dkt. entry no. 25), the Parties' dispute concerning the scope of Plaintiff's discovery requests was brought to the Court's attention by letter dated September 16, 2010 from Timothy P. Smith, Esq. (see dkt. entry no. 31, Ex. E). Thereafter, the Court conducted two (2) case management conferences during which this dispute was addressed. Although counsel agreed to proceed informally, based on the Court's instructions during these conferences, the parties later disagreed as to what the Court directed. Specifically, Plaintiff contends that on September 21, 2010, the Court instructed Defendant to produce "all records regarding disciplinary actions and terminations in Defendant's East Region for the time period from October 31, 2007 to October 31, 2009". See Pl.'s Opp'n Br. at 7. Oppositely, Defendant contends that after the September 21, 2010 conference with the Court, it was to provide Plaintiff with "an alphabetical list of all employees involuntarily terminated in Carter's East Region during the period of October 31, 2007 and October 31, 2009...[that includes] store number, brand, city, state, date of birth, job title, full or part-time status, regular or temporary status, termination date, and reason for termination for each person". See Def.'s Br. at 6.

Plaintiff further contends that during the later conference on October 26, 2010, the Court instructed Defendant to provide Plaintiff "with all records regarding disciplinary action taken with respect to similarly situated employees for working off the clock and other time-keeping infractions" and defined "similarly situated employees to include store managers, assistant managers, sales associates, stock associates, and supervisors...[including] part-time and full-time...but not temporary or seasonal workers". Id. at 7-8. Notwithstanding this direction, Plaintiff claims, "Defendant still refuses to provide the requested discovery". Id. at 8. According to its counsel, notwithstanding the Court's informal efforts, Defendant "remains concerned about the proper scope of Plaintiff's discovery requests". See Def.'s Br. at 6.

As a result, on December 10, 2010, Defendant filed the instant Motion seeking a Protective Order with respect to ...


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