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Sandy Aviles v. Big M

March 8, 2011

SANDY AVILES, PLAINTIFF-APPELLANT,
v.
BIG M, INC., A CORPORATION, DEFENDANT-RESPONDENT, AND MARINA AMAYA, INDIVIDUALLY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1254-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2011 -- Decided Before Judges Rodriguez and LeWinn.

Plaintiff Sandy Aviles appeals from the June 20, 2008 order terminating her claim pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, against her employer Big M, Inc. (Mandee), the owner of Mandee, a women's apparel retail store. She also appeals from two February 8, 2010 orders dismissing the remaining claims against Mandee and denying restoration of the CEPA claim. We affirm.

We review the facts presented on the summary judgment motions in the light most favorable to Aviles, and give her the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 & 540 (1984).

Aviles was hired by Mandee in May 1996 as a sales associate in its West New York store. By March 2007, she was promoted to manager of that store.

On December 31, 2007, a dressing room attendant notified Aviles that a customer, later identified as Lissete Farfan, had been in the dressing room for an extended period of time, and was making noises in the dressing room that sounded like she was trying to remove security tags from the merchandise. Farfan had entered the dressing room with three garments and emerged with one. Aviles found some merchandise tags in the dressing room after Farfan left. She approached Farfan and asked what happened to the other garments she brought into the dressing room. According to Aviles, Farfan said that she did not steal anything and offered to let Aviles search her handbag. Aviles declined, saying that was not her job. Aviles claimed that she neither touched Farfan nor called the police because she was not sure that Farfan had stolen anything.

Aviles called her district manager, Victor Firavanti, about this situation. Firavanti told her not to call the police. When Farfan exited the store, the merchandise alarm was activated, indicating that a security tag was still attached to an item.

Two days later, Farfan called Mandee's customer service department to complain about her treatment by Aviles. The message was forwarded to Firavanti who then called Farfan to apologize for the incident.

A few days later, Mandee regional manager Ronda Hisiger called Farfan to discuss the complaint. Farfan told Hisiger that Aviles accused her of stealing and told her that "it was company policy to search her." Hisiger prepared a report, indicating that Farfan claimed that Aviles rummaged through her handbag.

Mandee requires all employees to attend loss prevention training and view their loss prevention video at the start of their employment and at the company's annual meetings for those stores that have high levels of theft. Aviles acknowledged that she viewed the loss prevention video on at least two occasions. Mandee's loss prevention video provides four criteria that a store manager must follow before detaining or confronting a suspected shoplifter. The manager must:

(1) personally observe the shoplifter conceal company owned merchandise;

(2) know the exact location of the concealed merchandise;

(3) maintain constant surveillance of the person after the concealment has occurred; and

(4) make sure that person makes no effort to pay for the merchandise before leaving the store.

There is no written rule that states whether a manager is allowed to look into a customer's handbag.

Firavanti and Hisiger met with Michael Bush, director of human resources, Jim Selwood, director of loss prevention, and Rona Korman, general counsel, to discuss the incident. The meeting participants decided to further investigate Farfan's allegations. According to Selwood, the group agreed that if the allegations contained in ...


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