Valerie Campione v. Arizona Beverages USA

• Court: New Jersey Superior Court Appellate Division
• Decided: January 5, 2024
• Docket: A-1186-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1186-22

VALERIE CAMPIONE,

Plaintiff-Appellant,

v.

ARIZONA BEVERAGES USA, LIMITED LIABILITY COMPANY, ARIZONA BEVERAGE COMPANY, LLC, ISLAM AHMED, both individually and in his capacity as supervisory personnel and/or management,

Defendants-Respondents. ______________________________

Submitted November 29, 2023 – Decided January 5, 2024

Before Judges Firko and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1163-22.

O'Connor, Parsons, Lane & Noble, LLC, attorneys for appellant (Gregory Brian Noble and Richard Daniel Bause, of counsel and on the briefs). Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, attorneys for respondents (Thomas E. Lamb II, of counsel and on the brief).

PER CURIAM

Plaintiff Valerie Campione appeals from a November 14, 2022 Law

Division order dismissing her complaint against defendants Arizona Beverage

USA and Arizona Beverage Company LLC (Arizona), improperly pled as her

former employers, and manager, Islam Ahmed, for failure to state a claim upon

which relief can be granted with prejudice and denying her cross-motion to

amend the complaint in lieu of dismissal. We affirm.

I.

The following facts are alleged in the complaint. On January 13, 2020,

plaintiff became employed by AZ Metro Distributors, LLC (AZ) 1 as a Route

Sales Representative at its Edison location. On April 26, 2020, plaintiff claimed

she was assaulted in a domestic violence incident. As a result of injuries arising

out of the incident, plaintiff took off from work on April 27 and 28, 2020.

On April 29, 2020, plaintiff was called into a meeting with Ahmed and

given a "written warning" about the days she took off related to the domestic

violence incident. Plaintiff further alleged that after informing Ahmed she

1 AZ is not named as a defendant in the complaint. A-1186-22 2 would need additional days off for court dates related to the incident, he

"crassly" responded "although unfortunate, this couldn't come at a worse time."

On May 1, 2020, plaintiff contacted the human resources manager Robin

McConnell, and informed her of the domestic violence incident and subsequent

meeting with Ahmed. Plaintiff conveyed to McConnell that she was "not getting

support from management for what had occurred" and the upcoming court dates

related to the domestic violence incident. On May 4, 2020, plaintiff was

terminated from her employment with AZ.

Nearly two years later, on April 19, 2022, plaintiff filed a one-count

complaint in the Law Division against Arizona and Ahmed alleging a "violation

of public policy common law Pierce2 claim" on the grounds she was a domestic

violence victim who required time off from work due to the incident and to

attend court dates. Plaintiff alleged Arizona and Ahmed violated New Jersey

common law, public policy, and the Court's decision in Pierce. Plaintiff sought

back pay, front pay, benefits, compensatory, consequential, and punitive

damages, along with attorney's fees and costs. Plaintiff conceded at the onset

she did not qualify for leave time under the New Jersey Security and Financial

Employment Act (NJ SAFE Act) because she was not employed by defendants

2 Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). A-1186-22 3 (or AZ) for the one year time period required under N.J.S.A. 34:11C-2 to -4, but

argued public policy in this State goes beyond the NJ SAFE Act for victims like

herself, including the right and duty to attend court dates relating to a domestic

violence incident.

Arizona and Ahmed filed an answer denying the allegations in the

complaint but admitted Ahmed was a member of management. In their

affirmative and other defenses, Arizona and Ahmed alleged the complaint failed

to name AZ as a necessary party, warranting dismissal as a matter of law against

the named defendants, and that plaintiff was not employed by Arizona. The

answering defendants also alleged any decisions, actions, or omissions

regarding plaintiff were "based upon legitimate, non-discriminatory business

reasons" and that they maintained and complied with policies to prevent

unlawful harassment, discrimination, or retaliatory conduct.

On August 22, 2022, Arizona and Ahmed moved to dismiss the complaint

under Rule 4:6-2(e), arguing plaintiff did not identify any specific judicial

decision, statement of common law, or public policy to support her Pierce claim.

Plaintiff opposed the motion and filed a notice of cross-motion for leave to

amend the complaint to assert claims against AZ in lieu of a dismissal of the

matter. In her opposition brief, plaintiff argued that her Pierce claim was based

A-1186-22 4 on New Jersey public policy that "protects, encourages, and . . . requires public

participation in the legal process without interference by employers." Plaintiff

argued the "source" of this public policy is the NJ SAFE Act.

In support of her Pierce claim, plaintiff relied upon: (1) N.J.S.A. 2C:29-

7, making it an offense to fail to appear when bail is imposed or a summons is

issued; (2) N.J.S.A. 2C:29-9, making it a crime of contempt to disobey a judicial

order; (3) N.J.S.A. 2B:20-17, requiring employers not to penalize employees for

attending jury service; and (4) Rule 7:8-9, which allows the issuance of a bench

warrant if a criminal defendant fails to appear in court.

On October 7, 2022, Judge Daniel R. Lindemann conducted oral argument

on the motions. The judge instructed counsel to submit supplemental briefs on

the issue of whether a Pierce claim that relies upon public policy contained in a

New Jersey statute—the NJ SAFE Act—may proceed as a common law cause

of action when the NJ SAFE Act already imposes requirements for bringing a

cause of action.

In her supplemental brief, plaintiff asserted that even if the NJ SAFE Act

precluded her Pierce claim under that statute, her "primary" Pierce claim is a

separate and distinct claim and is grounded on New Jersey's public policy

encouraging and requiring participation in court proceedings. Plaintiff argued

A-1186-22 5 she was retaliated against for seeking time off from work to attend her domestic

violence court proceedings, which is a violation of public policy as part of her

primary Pierce claim. In addition, plaintiff averred the NJ SAFE Act

specifically protects domestic violence victims' participation in the legal

process. Plaintiff also posited she took leave related to the domestic violence

incident that was unrelated to the court proceedings, thereby implicating the

public policy advanced in the NJ SAFE Act, but not the public policy contained

in her primary Pierce claim.

On November 4, 2022, the judge heard oral arguments a second time and

reserved decision on the motions. On November 14, 2022, Judge Lindeman n

granted Arizona and Ahmed's motion to dismiss the complaint with prejudice

and issued an order accompanied by a comprehensive written statement of

reasons.

In analyzing plaintiff's primary Pierce claim, the judge found her reliance

upon criminal statutes and a court rule was "inapplicable to the instant matter,

and even if applicable, ultimately d[id] not reflect a public policy in New Jersey

that protects, encourages, and . . . requires public participation in the legal

process without interference by employers." Instead, the judge emphasized the

cited statutes and court rule "represent a public policy in the [S]tate regarding

A-1186-22 6 criminal matters and consequences for failing to appear or abide by court order."

The judge highlighted that N.J.S.A. 2B:20-17 is "specific to required jury

service" and does not articulate a policy that pertains to employers.

As to plaintiff's secondary Pierce claim based on the NJ SAFE Act, the

judge determined that permitting this claim "would undermine the balance [the

Legislature] sought to achieve in enacting the twelve-month limitation." The

judge highlighted that under the NJ SAFE Act, "[a] private cause of action

provided for in this section shall be the sole remedy for a violation of this

[A]ct[,]" N.J.S.A. 34:11C-5(c), and "[a]dditionally, '[a]n action brought under

this section shall be commenced within one year of the date of the alleged

violation,'" N.J.S.A. 34:11C-5(b), confirming plaintiff's ineligibility from a

procedural standpoint.

The judge found our decision in Hampton v. Armand Corp., 364 N.J.

Super. 194, 197 (App. Div. 2003), instructive because plaintiff's Pierce claim

cannot rely on a public policy established by a State statute, such as the New

Jersey Family Leave Act (Family Leave Act)3 with eligibility requirements she

cannot meet. Judge Lindemann relied on Hampton in which we stated: "The

[Family and Medical Leave Act of 1993 (FMLA)] establishes a clear mandate

3 N.J.S.A. 34:11B-1 to -16. A-1186-22 7 of public policy for 'eligible employees' wrongfully terminated pursuant to its

provisions. That such policy exists, however, does not translate to a public

policy that protects short term employees." Id. at 201.

The judge explained plaintiff's supplemental opposition was

"unresponsive" to his direction to brief whether a Pierce claim that relies upon

public policy "enshrined" in a New Jersey statute, such as the NJ SAFE Act,

may proceed as a common law cause of action. Plaintiff also did not respond to

defendants' discussion of Hampton. As a matter of law, the judge concluded

plaintiff failed to allege a cognizable Pierce claim under either of her theories.

Therefore, the court granted defendants' motion to dismiss the complaint with

prejudice and denied plaintiff's cross-motion to amend the complaint as moot.

Memorializing orders were entered. This appeal followed.

Plaintiff raises the following arguments for our consideration:

(1) dismissal of the complaint with prejudice was unwarranted because the judge did not conduct a proper analysis of plaintiff's claim; and

(2) the complaint clearly maintains that the termination of plaintiff's employment violated clear mandates of public policy in New Jersey that protect, encourage, and require public participation in the legal process without interference by employers.

A-1186-22 8 Having carefully reviewed the record, we affirm primarily for the reasons

expressed in Judge Lindemann's thorough statement of reasons. We add the

following comments.

II.

Our review of a Rule 4:6-2(e) motion to dismiss for failure to state a claim

upon which relief can be granted is de novo. Baskin v. P.C. Richard & Son,

LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). We "must

examine 'the legal sufficiency of the facts alleged on the face of the complaint,'

giving the plaintiff the benefit of 'every reasonable inference of fact.'" Ibid.

(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)). To determine the adequacy of a pleading, we must decide "whether a

cause of action is 'suggested' by the facts." Printing Mart-Morristown, 116 N.J.

739 at 746 (quoting Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. 189, 192

(1988)).

A.

Plaintiff contends the judge erred in dismissing her complaint by failing

to acknowledge the "primary" public policy her Pierce claim is based on is the

State's clear mandate regarding the operation of the courts in allowing or

A-1186-22 9 requiring public participation in proceedings that is unimpeded by any statutory

eligibility requirements such as the "focused" public policy advanced by the NJ

SAFE Act. Plaintiff argues the matter under review implicates two sources of

law and how they interact: (1) the NJ SAFE Act and (2) the broad public policy

within this State that protects, encourages, and requires public participation in

the legal process without interference by employers.

The NJ SAFE Act establishes that "[a]ny employee of an employer in the

State who was a victim of an incident of domestic violence [. . .] shall be entitled

to unpaid leave of no more than [twenty] days in one [twelve]-month period, to

be used in the [twelve]-month period next following any incident of domestic

violence or any sexually violent offense as provided in this section." N.J.S.A.

34:11C-3(a). It further establishes that the unpaid leave may be taken as needed

for the purpose of "attending, participating in, or preparing for a criminal or civil

court proceeding relating to an incident of domestic or sexual violence."

N.J.S.A. 34:11C-3(a)(6).

The Legislature defines an employee as employee as "a person who is

employed for at least [twelve] months by an employer, with respect to whom

benefits are sought under this act, for not less than 1,000 base hours during the

immediately preceding [twelve] month period." N.J.S.A. 34:11C-2. The NJ

A-1186-22 10 SAFE Act makes it illegal to "discharge, harass or otherwise discriminate or

retaliate or threaten to discharge, harass or otherwise discriminate or retaliate

against an employee with respect to the compensation, terms, conditions or

privileges of employment on the basis that the employee took or requested any

leave to which the employee was entitled." N.J.S.A. 34:11C-4.

It is undisputed that plaintiff does not meet the eligibility requirements

established by the NJ SAFE Act as she was only employed by AZ for a period

of four months prior to the domestic violence incident. Since plaintiff is barred

from relief under the NJ SAFE Act, she contends the same remedy can be

achieved under Pierce.

B.

In Pierce, the Supreme Court held "that an employee has a cause of action

for wrongful discharge when the discharge is contrary to a clear mandate of

public policy." Pierce, 84 N.J. at 72. "The sources of public policy include

legislation; administrative rules, regulations or decisions; and judicial

decisions." Ibid. "A salutary limiting principle is that the offensive activity

must pose a threat of public harm, not merely private harm or harm only to the

aggrieved employee." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998).

The public policy must be "clearly identified and firmly grounded."

A-1186-22 11 MacDougall v. Weichert, 144 N.J. 380, 391 (1996). "A vague, controversial,

unsettled, and otherwise problematic public policy does not constitute a clear

mandate." Id. at 392. "Unless an employee at-will identifies a clear, specific

expression of public policy, that employee may be discharged with or without

cause." Hampton, 364 N.J. Super. at 199.

Plaintiff's Primary Pierce Claim

Plaintiff argued the following three statutes and court rule support her

primary Pierce claim:

The Bail Jumping Statute

[A] person set at liberty by court order, with or without bail, or who has been issued a summons, upon condition that he will subsequently appear at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration, commits an offense if, without lawful excuse, he fails to appear at that time and place.

[N.J.S.A. 2C:29-7.]

The Contempt Statute

A person is guilty of a crime of the fourth degree if the person purposely or knowingly disobeys a judicial order or protective order, [. . .], or hinders, obstructs, or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing, or controversy by a court, administrative body, or investigative entity.

A-1186-22 12 [N.J.S.A. 2C:29-9.]

Plaintiff also cites an employment protection statute, which states "[a]n

employer shall not penalize an employee with respect to employment, or

threaten or otherwise coerce an employee with respect to that employment,

because the employee is required to attend court for jury service," N.J.S.A.

2B:20-17, to support her argument and a court rule that permits the issuance of

a bench warrant in a criminal proceeding when a defendant fails to appear in

court. R. 7:8-9.

Plaintiff's primary Pierce claim lacks merit. Pieced all together, plaintiff

contends these four sources create a broad public policy in this State that

encourages, supports, and even requires public participation at court

proceedings without employer interference. But plaintiff failed to satisfy her

burden to "identif[y] a clear, specific expression of public policy" prohibiting

the discharge of a short-term employee taking time off to attend hearings related

to a domestic violence incident. See Hampton, 364 N.J. Super. at 199.

Moreover, plaintiff's attempt to combine fragmented sections of statutes and

rules related to bail jumping, contempt of court, bench warrants, and jury duty—

none of which are factually relevant here—to create a public policy scheme

A-1186-22 13 regarding participation in the legal process does not establish a prima facie

primary Pierce claim or competent evidence to defeat dismissal.

Plaintiff's Secondary Pierce Claim

Plaintiff reiterates her argument on appeal that she has established a

secondary Pierce claim regarding the public policy contained in the NJ SAFE

Act. In Hampton, the plaintiff asserted a claim for wrongful discharge for taking

medical leave in violation of public policy, based on the FMLA. Id. at 196-97.

However, the plaintiff did not have a viable claim under the FMLA because she

had not been employed for twelve months. Id. at 197. We rejected the plaintiff's

claim because "[t]he FMLA establishes a clear mandate of public policy for

'eligible employees' wrongfully terminated pursuant to its provisions," but does

not establish public policy for ineligible employees. Id. at 201. We reasoned

that an employee who is ineligible for relief under the FMLA should not be able

to obtain relief under Pierce. Ibid.

Applying these standards, we conclude plaintiff's secondary Pierce claim

is devoid of merit. Plaintiff failed to produce any evidence that supported this

claim, and significantly, she failed to "identif[y] a clear, specific expression of

public policy" in favor of wrongful discharge. Id. at 199. In addition, plaintiff's

Pierce claim that her termination violated public policy was barred by virtue of

A-1186-22 14 her failure to establish an underlying NJ SAFE Act claim. See Bosshard v.

Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90 (App. Div. 2001) (stating a

plaintiff is barred from raising a Pierce claim where a public policy interest is

exclusively protected by a statute). Moreover, plaintiff's admission that she did

not qualify to invoke the protection of the NJ SAFE Act based on her four-month

employment with AZ belied any claim under Pierce.

Plaintiff asserts the statutory authority relied upon does not have to be

directly on point to the given circumstance to satisfy the Pierce standard. She

relies on MacDougall, where the Court considered a Pierce claim brought on

behalf of the plaintiff, who operated as a salesperson for a real estate firm and

an elected member of a local municipality. Id. at 385. As a member of the

municipal council, the plaintiff voted for a parking ordinance that was opposed

by a client of the real estate firm. He was subsequently discharged from the law

firm because of his vote. Id. at 387.

The plaintiff relied on two criminal statutes to support his Pierce claim.

Id. at 394. The Court ultimately determined that based on the legislation's

extensive history and its statutory language and structure, there was "a clear

mandate of public policy that serves to protect public officials holding

A-1186-22 15 legislative office in the exercise of official duties relating to legislative matters."

Id. at 398.

MacDougall is distinguishable from the matter under review as the public

policy plaintiff attempts to create has not been established as a clear mandate of

public policy, and is not supported by any legislative history. Plaintiff also relies

on MacDougall to argue that the judge erred because criminal statutes can

suggest public policy under a civil Pierce claim. But here, as Judge Lindemann

found, plaintiff did not jump bail or fail to appear in court and was not called

for jury duty, which makes the four sources she relied upon factually irrelevant

to the analysis.

Finally, to support a Pierce claim, a plaintiff must show that he or she

made a sufficient expression of a disagreement with a corporate policy,

directive, or decision based on a clear mandate of public policy derived from

legislation, administrative rules, regulations, decisions, or judicial decisions.

Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 109 (2008). "[A] complaint to

an outside agency will ordinarily be a sufficient means of expression, but a

passing remark to co-workers will not. A direct complaint to senior management

would likely suffice, but a complaint to an immediate supervisor generally

would not." Ibid.

A-1186-22 16 Here, the record only mentions that plaintiff contacted McConnell and

informed her about the lack of support she received from management regarding

the domestic violence incident. This conversation does not express the level of

disagreement needed to support plaintiff's Pierce claim.

We conclude the factual findings of Judge Lindemann are fully supported

by the record, and the legal conclusions drawn therefrom are unassailable.

Affirmed.

A-1186-22 17