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DSW May Be Liable for Child Abuse Scare Firing

(CN) - A woman can pursue claims that DSW fired her for telling child protection services about a customer who threatened and neglected a filthy toddler, a federal judge ruled.

Mary Stapleton said she was working as an assistant merchandise manager at a DSW in Cherry Hill, N.J., on March 27, 2012, when a female customer entered with a 22-month-old girl.

Stapleton claimed to have later found the child, unsupervised and smelling of feces, painting the store shelves with a bottle of DSW nail polish, which she had also apparently spilled on herself.

After Stapleton seized the polish, the child then started to pull on the clothing of several other customers for attention, Stapleton said.

Stapleton then allegedly advised the woman with the child to change her diaper in the restroom, but the shopper appeared confused and refused, stating that she lacked the necessary supplies. The customer then shopped for two hours while continuing to neglect the child, Stapleton said.

At the cash register, Stapleton said the customer provided her name and address to process a return. During the transaction, the child twice threw items from the counter onto the floor, and the woman allegedly threatened hit the girl when they returned home.

Stapleton said she was concerned for the child's safety and welfare, so gave the customer's information to co-worker, Stephanie Rolen, who had also witnessed the incident, to pass on to New Jersey's Division of Child Protection and Permanency. The next day, a caseworker allegedly spoke with the store's district manager, Denise Basso, to investigate Rolen's report.

Stapleton said Basso asked her a couple of days later to describe the incident in a written statement. Store manager Nancy Gotkin allegedly fired Stapleton on March 31 for violating DSW's policy of protecting confidential customer information.

In an October lawsuit, Stapleton argued that DSW's policy was incompatible with the child's best interests and that she was wrongfully terminated under common law and New Jersey's Conscientious Employee Protection Act (CEPA).

Ohio-based DSW then removed the case to U.S. District Court for the District Court of New Jersey and moved to dismiss for failure to state a claim.

Though U.S. District Judge Joseph Irenas dismissed the common-law claim on March 20, he said Stapleton may have a claim under CEPA

DSW failed to show that Stapleton's activity was not protected since she did not raise concerns about the policy until after she was fired.

"This argument misses the mark," Irenas wrote. "As explained above, CEPA not only protects employees who 'disclose or threaten to disclose' information to a supervisor or public body, but also those employees who 'simply refrain from acting.'"

The judge later added that "Because plaintiff alleges that she was terminated in retaliation for her refusal to participate in DSW's policy and that she released the customer's confidential information because she reasonably believed that her failure to do so would be incompatible with a clear mandate of public policy concerning the safety and welfare of children, plaintiff stated a CEPA claim pursuant to N.J. STAT. ANN. § 34:19-3c."

DSW further failed to show that Stapleton should have notified her supervisor before submitting her report.

"Because the statute expressly requires notice only when an employee discloses the employer's wrongdoing 'to a public body,' the fact that plaintiff did not notify her supervisor until after her refusal to comply with DSW's policy is irrelevant," Irenas wrote. "Plaintiff never alleged that she disclosed DSW's policy to any public body. Rather, plaintiff's CEPA claim is predicated simply on her refusal to participate in DSW's policy. Thus, CEPA's notice requirement does not apply in this case and plaintiff's failure to notify does not bar her CEPA claim."

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