Demas v. National Westminster Bank

CourtSuperior Court of New Jersey
Writing for the CourtWECKER
Citation313 N.J.Super. 47,712 A.2d 693
Decision Date24 June 1998
Parties, 14 IER Cases 177 Theresa DEMAS, Plaintiff-Appellant, v. NATIONAL WESTMINSTER BANK, Defendant-Respondent.

Page 47

313 N.J.Super. 47
712 A.2d 693, 14 IER Cases 177
Theresa DEMAS, Plaintiff-Appellant,
v.
NATIONAL WESTMINSTER BANK, Defendant-Respondent.
Superior Court of New Jersey,
Appellate Division.
Argued April 28, 1998.
Decided June 24, 1998.

[712 A.2d 694]

Page 48

Stephen E. Klausner, Somerville, and Thomas Toman, Brick, for plaintiff-appellant (Klausner and Hunter, attorneys; Mr. Klausner on the brief).

Robyn L. Aversa, Morristown, for defendant-respondent (Jackson, Lewis, Schnitzler and Krupman, attorneys; Ms. Aversa and John M. Nolan on the brief).

Before Judges DREIER, PAUL G. LEVY and WECKER.

The opinion of the court was delivered by

WECKER, J.A.D.

Plaintiff appeals from a summary judgment dismissing her claim that she was terminated from her position as a bank teller in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. Because we agree with the contentions of defendant National Westminster Bank (NatWest) that plaintiff's allegations, even if true, do not state a cause of action under CEPA, we affirm. However, we do so for reasons additional to those expressed by the motion judge.

Plaintiff she was employed by NatWest from April 5, 1993, until she was terminated on July 5, 1994. Plaintiff's complaint alleges that in the spring of 1994, she became aware that another employee of the bank, Richard Opong, an investment banker assigned to the same branch, was soliciting customers of the bank "in violation

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of bank policies, banking regulations and statutes, and the Security Exchange Act and security regulations." Plaintiff further alleges that she reported the activity to NatWest and that although it "end[ed] the illegal practice, ... [NatWest] retaliated against Plaintiff and then terminated Plaintiff based upon fabricated charges." Finally, plaintiff alleges that NatWest retaliated against her for disclosing "to her superiors, an activity, policy, or practice that the employee believed to be in violation of law, rule, regulation promulgated pursuant to law." After the parties completed discovery, defendant moved for summary judgment.

It is undisputed that Opong was in fact misusing referrals from bank employees like plaintiff. Those referrals were intended to assist Opong to sell the bank's investment products to bank customers, and were not intended for him to divert the bank's business to his own private benefit. He offered plaintiff a referral fee, or "kickback," in the event he sold his own products to a customer whom she referred. Plaintiff realized that this was improper, declined to help him, and reported it to bank personnel. Others apparently also reported Opong's conduct, and he was promptly fired. That occurred in the spring of 1994. Plaintiff alleges that after several suspicious acts by Opong, she reported the situation immediately to Angela Petty, the Hoboken branch manager. Plaintiff testified at depositions:

I mean I knew that we were not allowed to work for competing companies. And that none of the information that we came into contact with, we signed a confidentiality thing, we're not allowed to tell anybody, anybody's business under the circumstances.

At Petty's request, plaintiff completed an affidavit with respect to Opong's conduct and participated in an investigative interview with another bank employee.

In her opposition to defendant's motion, plaintiff cites additional facts which we accept for purposes of this appeal. Plaintiff concluded from Opong's unpleasant behavior toward her that he had learned about her affidavit. She claimed to be nervous and sick over the incident and informed the assistant bank manager that she did not want to work on the following Saturday, when the

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bank operated with a reduced staff and Opong and an employee sympathetic to him would be working. Immediately thereafter, plaintiff claims that the bank manager, Petty, began treating her "horribly," said "nasty things," and was "just very vicious to me...." Plaintiff[712 A.2d 695] also alleges that she was overworked at her teller's job, was "spread way too thin [and] was just exhausted," and told that to Petty. According to plaintiff, Petty overworked her over the next several months and was unsympathetic to her complaints. Among other things, according to plaintiff, Petty scolded her on several occasions for "going over her head," as when plaintiff inquired of the visiting district supervisor whether she would have to testify regarding Opong in court.

Finally, according to plaintiff, at the end of June, Petty changed her work schedule. She called plaintiff into her office and told her that she could no longer have Wednesday as her regular day off. Up until that time, plaintiff had been permitted to have Wednesdays off for her music practice sessions. Specifically, Petty informed plaintiff that she would have to work on Wednesday, July 6. On Tuesday, July 5, according to plaintiff, Petty allegedly followed plaintiff into the bathroom, screaming that she had to come to work the next day. According to plaintiff, she responded to Petty as follows: "If you cannot make your point in a civilized manner, we cannot have a discussion, we just can't." In response, Petty fired her, telling her to "sell" her money, return her keys, call personnel, and give an exit interview. In addition, Petty told her to "get the hell out" and called her a "troublemaker." While plaintiff and defendant dispute whether she was actually terminated at that time or not, we accept for purposes of this appeal plaintiff's representation that she was indeed terminated on that day.

Plaintiff alleges another incident prior to Opong's firing, an incident not the subject of her complaint, when she reported thefts by another teller. That teller was promptly fired. Plaintiff contends that Petty also scolded her on that occasion for reporting the thefts directly to security without notifying Petty first, thereby

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making her look bad. Clearly one of plaintiff's themes is that the bank manager harassed and retaliated against her for making...

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3 practice notes
  • Bowen v. Parking Authority of the City of Camden, CIVIL No. 00-5765 (JBS) (D. N.J. 9/18/2003), CIVIL No. 00-5765 (JBS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 18 Septiembre 2003
    ...activity of the "employer" was unlawful. As cited by defendants, the New Jersey Appellate Division in Demas v. Nat'l Westminster Bank, 313 N.J. Super. 47 (App. Div. 1998), held that conduct of an employee is only deemed conduct of an employer if it is done by a supervisory employee or condo......
  • Costello v. Brigantine, Civ. Action No. 99-4072 (JBS) (D. N.J. 6/28/2001), Civ. Action No. 99-4072 (JBS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 28 Junio 2001
    ...had termination authority. (Pl. Br. at 78.) Only retaliation by "an employer" is prohibited by CEPA. Demas v. Nat. Westminster Bank, 313 N.J. Super. 47, 52 (App. Div. 1998). Plaintiff also has not argued that the Union defendants or Frugoli were his actual or de facto employers. The lynchpi......
  • Gerber v. Board of Review
    • United States
    • New Jersey Superior Court – Appellate Division
    • 24 Junio 1998
    ...This was no fortuitous occurrence resulting from a neutral act. Allied did more than make a general decision which rendered claimant's [712 A.2d 693] status as an employed person more difficult to maintain, such as moving its offices to a distant location, which Self suggested would qualify......
3 cases
  • Bowen v. Parking Authority of the City of Camden, CIVIL No. 00-5765 (JBS) (D. N.J. 9/18/2003), CIVIL No. 00-5765 (JBS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 18 Septiembre 2003
    ...of the "employer" was unlawful. As cited by defendants, the New Jersey Appellate Division in Demas v. Nat'l Westminster Bank, 313 N.J. Super. 47 (App. Div. 1998), held that conduct of an employee is only deemed conduct of an employer if it is done by a supervisory employee or cond......
  • Costello v. Brigantine, Civ. Action No. 99-4072 (JBS) (D. N.J. 6/28/2001), Civ. Action No. 99-4072 (JBS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 28 Junio 2001
    ...authority. (Pl. Br. at 78.) Only retaliation by "an employer" is prohibited by CEPA. Demas v. Nat. Westminster Bank, 313 N.J. Super. 47, 52 (App. Div. 1998). Plaintiff also has not argued that the Union defendants or Frugoli were his actual or de facto employers. The lynchpin of p......
  • Gerber v. Board of Review
    • United States
    • New Jersey Superior Court – Appellate Division
    • 24 Junio 1998
    ...This was no fortuitous occurrence resulting from a neutral act. Allied did more than make a general decision which rendered claimant's [712 A.2d 693] status as an employed person more difficult to maintain, such as moving its offices to a distant location, which Self suggested would qualify......

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