APPEARANCES: Robert J. Hensler, Esq. ROBERT HENSLER, LLC 601 Haddon Avenue Collingswood, NJ 08108 Attorney for Plaintiff Tammy R. Davis Andrew John Shapren, Esq. BUCHANAN, INGERSOLL & ROONEY, PC Two Liberty Place 50 S. 16th Street, Suite 3200 Philadelphia, PA 19102-255 Attorney for Defendant Supervalu, Inc., d/b/a Acme Markets
The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Defendant Supervalu's Motion to Dismiss Counts II and III of Plaintiff Tammy R. Davis's complaint. [Docket Item 4.] The instant action arises out of Plaintiff's discharge from employment with Defendant Supervalu. Count II alleges a statutory retaliation claim pursuant the New Jersey Law Against Discrimination, N.J.S.A. 10:5-10, et seq. ("NJLAD"), and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. ("CEPA"). Count III alleges a common law wrongful discharge claim.*fn1
For the reasons discussed herein, the court will grant Defendant Supervalu's motion to dismiss. Count II will be dismissed with prejudice because any amendment would be futile since filing a worker's compensation claim is not protected activity under the NJLAD or CEPA. However, the court will dismiss Count III without prejudice to the Plaintiff filing a motion to amend as the Plaintiff may be able to allege sufficient facts to state a viable wrongful discharge claim.
The instant action arises out of Plaintiff's employment with Defendant Supervalu, Inc., d/b/a Acme Markets ("Defendant Supervalu") and subsequent termination.
Plaintiff, a 46 year old woman, worked for Defendant Supervalu for over 20 years. (Compl. ¶¶ 1, 3, 5.) Defendant employed the Plaintiff as a cashier at the Burlington Acme Market since approximately 1990. Plaintiff had never been accused of any improper behavior and up until her termination, had consistently received satisfactory performance reviews. (Id. at ¶ 6.)
At some time in the beginning of 2011, Plaintiff filed a worker's compensation claim against Defendant Supervalu. Plaintiff alleges she pursued this worker's compensation claim approximately a year prior to her termination. (Id. at ¶ 16.)
Also in or about 2011, the store became equipped with new computerized cash registers. During the training process, and while cashiers were becoming familiar with the new equipment, transactions were slower and, occasionally, errors were made as employees became accustomed to the new equipment. (Id. at ¶ 7.)
On or about January 6, 2012, the Plaintiff was notified by Store Director, Tim Kavanaugh, that she was suspended as the result of an incident which occurred on or about December 30, 2011. (Id. at ¶ 8.) Kavanaugh claimed that the Plaintiff was suspended for allegedly failing to record sales properly. (Id. at ¶ 9.)
On January 10, 2012, Plaintiff was terminated. (Id. at ¶ 10.) On January 17, 2012, a meeting was held to discuss her termination. (Id. at ¶ 11.) On January 25, 2012, the Acme Association Relations Manager for Acme Markets, in West Bridgewater, Massachusetts, sent Plaintiff a letter regarding the outcome of the meeting. The letter stated, "Your employment with Acme Markets, Inc. has been terminated due to your violation of Company Policy." (Id. at ¶ 11.)
Plaintiff was then replaced by a younger person making a significantly lower hourly rate, and with significantly less seniority and benefits. (Id. at ¶ 14.) As a direct and proximate result of her suspension, and termination, Plaintiff has sustained and continues to sustain significant damages, both economic and non-economic. (Id. at ¶ 15.)
Plaintiff filed the instant action against Defendant Supervalu on December 10, 2012, in the Superior Court of New Jersey, Law Division, Burlington County. [Docket Item 1.] Defendant then removed this action on the basis of diversity jurisdiction as Plaintiff is a citizen of New Jersey and Defendant is a corporation with its principle place ...