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Stapleton v. DSW, Inc.

United States District Court, D. New Jersey

March 20, 2013

MARY STAPLETON, Plaintiff,
v.
DSW, INC., [1] Defendant

Valerie Weisman, Esq., SIDNEY L. GOLD & ASSOCIATES, P.C., Philadelphia, Pennsylvania, Counsel for Plaintiff.

Deborah J. Krabbendam, Esq., Joshua John Voss, Esq., CONRAD O'BRIEN P.C., Philadelphia, Pennsylvania, Counsel for Defendant.

OPINION

HONORABLE JOSEPH E. IRENAS, Senior United States District Judge.

Page 636

Plaintiff Mary Stapleton initiated this action against Defendant DSW, Inc. (" DSW" ) alleging wrongful termination. [2] The Complaint asserts a claim under New Jersey's Conscientious Employee Protection Act and a common law claim for wrongful discharge. Pending before the Court is DSW's motion to dismiss the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, the Motion will be granted in part and denied in part.

I.

The Complaint alleges the following facts.

DSW is a footwear and accessories retailer incorporated in Ohio. (Compl. ¶ ¶ 6, 9) Plaintiff, a resident of New Jersey, was employed as the Assistant Merchandise Manager at DSW's store in Cherry Hill, New Jersey. (Id. ¶ 9)

On or about March 27, 2012, a female customer (" the Customer" ) entered the Cherry Hill DSW store accompanied by an

Page 637

approximately twenty-two months old female child (" the Child" ) during Plaintiff's shift. (Id. ¶ 10) Thereafter, Plaintiff was informed that the Child had gotten hold of a bottle of nail polish belonging to DSW and was painting the store shelves. (Id. ¶ 11) Plaintiff approached the Child and immediately noticed that the Customer was ignoring the Child and that the Child smelled strongly of feces. (Id. ¶ 12) Plaintiff further observed that the Child had spilled a large amount of nail polish onto her body and belongings. (Id.) Plaintiff proceeded to take the nail polish away from the Child and continued to closely observe the Customer failing to supervise the Child. (Id. ¶ 13) The Customer did not even seem to notice that Plaintiff was interacting with the Child. (Id.) Additionally, the Child approached several other customers in the store and pulled on their clothing for attention. (Id.)

Because of the strong foul odor emanating from the Child, Plaintiff suggested that the Customer clean the Child and change the Child's diaper in the store's restroom. (Id. ¶ 14) The Customer appeared confused and refused to clean the Child. (Id.) She further stated that she did not have the necessary supplies to change the Child's diaper. (Id.) The Customer then continued to shop for approximately two hours while neglecting to supervise or clean the Child despite Plaintiff's further suggestion that she use the restroom. (Id. ¶ 15)

Finally, as the Customer was making her purchase at the cash register, the Child threw several items from the counter onto the floor. (Id. ¶ 16) In response, the Customer twice threatened to punish the Child by hitting her when they returned home. (Id.)

Out of concern for the Child's safety and welfare, Plaintiff discussed the incident with Stephanie Rolen (" Rolen" ), an associate who had also witnessed the Customer's behavior. (Id. ¶ ¶ 17-18) They decided that Rolen would report the incident to New Jersey's Division of Child Protection and Permanency (" DCPP" ). (Id. ¶ 18) In order to assist the DCPP in identifying the Customer, Plaintiff provided Rolen with the Customer's name and address. (Id. ¶ 19) Plaintiff acquired this information while processing the Customer's return of previously purchased merchandise. (Id.)

The following day, DCPP contacted DSW's Cherry Hill store to investigate Rolen's report. At this time, the store's District Manager, Denise Basso (" Basso" ), was informed of both Rolen's report and the underlying incident. (Id. ¶ 20) On or about March 29, Basso met with Plaintiff and required her to provide a written statement describing the incident and the subsequent report to the DCPP. (Id. ¶ 21) On or about March 31, Plaintiff was informed by Store Manager Nancy Gotkin (" Gotkin" ) that she was being fired for violating DSW's policy of protecting confidential customer information by conveying the Customer's identifying information to DCPP. (Id. ¶ 22) Plaintiff explained that she acted in what she believed was the best interests of the Child and that DSW's policy was incompatible with the Child's best interests in this case. (Id. ¶ 23) Nevertheless, Gotkin responded that she had been instructed to terminate Plaintiff's employment with DSW. (Id. ¶ 24)

On October 19, 2012, Plaintiff filed suit in the Superior Court of New Jersey, Civil Law Division, Camden County alleging that DSW unlawfully terminated her in retaliation for her failure to comply with a policy that she believed was incompatible with the best interests of the Child. The Complaint asserts a claim under New Jersey's Conscientious Employee Protection Act (" CEPA" ) and a common law claim for wrongful discharge. ...


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