A federal court recently held that an assistant merchandise manager stated a claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”) after she was terminated for using a customer’s confidential information to report potential child abuse and neglect to New Jersey’s Division of Child Protection and Permanency (“DCPP”). Stapleton v. DSW, Inc., No. 12-7406, 2013 U.S. Dist. LEXIS 38502 (D.N.J. Mar. 20, 2013).

Plaintiff, Mary Stapleton, was an Assistant Merchandise Manager at DSW’s store in Cherry Hill, New Jersey.  During her shift, Stapleton witnessed a female customer with a twenty-two month old female child enter the store.  Stapleton observed that the child had spilled nail polish on her body and belongings, and smelled like feces.  Despite Stapleton’s suggestion that the customer clean the child, the customer refused, and continued to shop for the next two hours while neglecting to clean or supervise the child.  Stapleton also witnessed the customer threaten to punish the child by hitting her when they returned home after the child threw items from the counter onto the floor.  Following this incident, Stapleton and a DSW associate decided to report the incident to the DCPP using the customer’s information, which Stapleton had obtained through processing the customer’s returned purchase.  Stapleton was terminated for providing the customer’s information to the DCPP in violation of the DSW’s policy of protecting confidential information.  Stapleton filed suit, asserting claims under the CEPA and common law, arguing that she was wrongfully terminated in retaliation for failing to comply with a policy that she believed was incompatible with the best interests of the child. The company moved to dismiss, arguing that Stapleton failed to allege that she performed a whistleblowing activity or meet the CEPA’s notice requirement.   The court disagreed, holding that Stapleton’s refusal to participate in DSW’s policy, as well as her reasonable belief that her failure to release the customer’s confidential information would be incompatible with a clear mandate of public policy concerning the safety and welfare of children, were protected under the CEPA.  

This case establishes that employers must be mindful that CEPA protections extend to employees who refrain from acting or participating in an activity, not just those who disclose or threaten to disclose information to a supervisor or public body.