Carlos Dominguez v. Costco Wholesale Corporation

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-1888
CARLOS DOMINGUEZ,
Appellant
v.
COSTCO WHOLESALE CORPORATION
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-05-cv-05717)
District Judge: Honorable Jose L. Linares
Submitted Under Third Circuit LAR 34.1(a)
December 14, 2009
Before: SLOVITER, JORDAN and WEIS, Circuit Judges
(Filed: December 15, 2009)
OPINION

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SLOVITER, Circuit Judge.
Carlos Dominguez (“Dominguez”) appeals the District Court’s grant of summary
judgment in favor of Costco Wholesale Corporation (“Costco”). For the reasons stated
below, we will affirm.
I.
Costco is a wholesale club that sells retail goods to its members. In May 2004,
Costco hired Dominguez as a Loss Prevention Agent at its Wharton, New Jersey,
warehouse. Terrence Berry (“Berry”), a Loss Prevention Supervisor who previously
worked with Dominguez at another company, recruited Dominguez for the position and
became his supervisor. It was Dominguez’s job to apprehend shoplifters and investigate
employee dishonesty. Dominguez investigated as possible employee dishonesty the
donation of day-old bakery products to charities from the store’s rear entrance; the taking
of lunch breaks by Gelisa Torres (“Torres”), a salaried manger, that Dominguez thought
were too long; and the selling of Internet-based “bootlegged” DVDs by a manager to co-
workers on store premises.
In Dominguez’s first performance evaluation, a “thirty-day review,” Berry noted
that Dominguez needed to improve his attendance and punctuality. Dominguez agreed
with Berry’s assessment. In the second performance evaluation, a “ninety-day review,”
Berry made the same observation. Dominguez agreed that he was “continuing to have
problems with [his] attendance and punctuality. . . .” App. at 109. Berry nevertheless

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recommended that Dominguez continue to be employed at Costco.
During the ensuing year, Dominguez received five “counseling notices” for
various infractions that included reporting late to work five times in March 2005 and
seven times in May 2005. Two of these counseling notices were issued by Berry. The
May 2005 counseling notice, his fourth, stated that it was the “last and final counseling
notice on this issue.” App. at 291. Under Costco’s policy, an employee will be
terminated for accumulating four counseling notices within a six-month period. In June
2005, Costco’s warehouse manager, Lorry Janus (“Janus”), issued a fifth counseling
notice. Upon realizing that Dominguez had accumulated over four counseling notices in
the previous six months, Janus contacted Costco’s regional vice president, Yoram
Rubanenko (“Rubanenko”), to request approval to terminate Dominguez’s employment.
Rubanenko approved, and Dominguez’s employment was terminated on June 17, 2005.
Dominguez sued Costco under the New Jersey Conscientious Employee Protection
Act (“CEPA”), N.J. Stat. Ann. §§ 34:19-1 to -14, alleging that Costco terminated his
employment because he had been investigating managers and supervisors for misconduct
and reporting his findings to Berry, Torres, and to a regional supervisor. In granting
summary judgment in favor of Costco, the District Court held that Dominguez failed to
adduce evidence that any of his investigations caused the counseling notices.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This court has

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jurisdiction under 28 U.S.C. § 1291. The standard of review of a district court’s grant of
summary judgment is de novo. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566
F.3d 86, 89 (3d Cir. 2009). A court may grant summary judgment if, drawing all
reasonable inferences in favor of the nonmoving party, “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2).
III.
The New Jersey CEPA is “remedial legislation” meant “to protect employees who
report illegal or unethical workplace activities.” Fleming v. Corr. Healthcare Solutions,
Inc., 751 A.2d 1035, 1038 (N.J. 2000) (internal citation and quotation omitted). Under
CEPA, it is unlawful for an employer to retaliate against an employee because the
employee discloses an activity of the employer that the employee reasonably believes is in
violation of a law or is fraudulent or criminal. N.J. Stat. Ann. § 34:19-3(c). A plaintiff
who brings a cause of action under CEPA must demonstrate that (1) he or she reasonably
believed that the employer’s conduct violated a law, rule, or regulation promulgated
pursuant to law, or a clear mandate of public policy; (2) he or she performed a
“whistle-blowing” activity described in N.J. Stat. Ann. § 34:19-3(c); (3) an adverse
employment action was taken against him or her; and (4) a causal connection exists
between the whistle-blowing activity and the adverse employment action. Sarnowski v.

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Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007) (citing Dzwonar v.
McDevitt, 828 A.2d 893, 900 (N.J. 2003)). A CEPA plaintiff can prove a causal
connection through “inferences that the trier of fact may reasonably draw based on
circumstances surrounding the employment action . . . .” Maimone v. City of Atl. City,
903 A.2d 1055, 1064 (N.J. 2006) (citation omitted). In circumstantial evidence cases,
New Jersey courts apply the burden shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and its progeny. Fleming, 751 A.2d at 1041. The burden of
proof to make a prima facie case rests with the plaintiff. Id.
The District Court correctly granted summary judgment based upon a lack of
evidence of causation. Dominguez points to no evidence that the decision-makers, Janus
and Rubanenko, knew about his investigations when they decided to terminate his
employment. In addition, Dominguez points to no evidence that the various managers
who issued counseling notices knew about his investigations, with the exception of Berry.
However, Berry recruited Dominguez, recommended him for continued employment at
Costco, and was not the subject of an investigation. The only manager who issued a
counseling notice and was also the subject of an investigation could not have known
about it, as Dominguez did not reveal the investigation until after the manager had issued
the counseling notice. Dominguez’s argument to the contrary, that Torres must have
known because “she saw [him] following her to the office,” Appellant’s Br. at 7 (quoting
App. at 587), is based entirely on speculation. Dominguez likewise points to no record

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evidence that Marc Cibellis, another manager who issued a counseling notice, knew about
any investigations.
Dominguez argues that Berry and other managers were motivated to issue him
counseling notices because they knew “that other supervisors or managers were guilty of
transgressions disclosed by Dominguez which they themselves . . . had failed to report to
higher authorities,” and, thus, the investigations “presented a potential for serious
interference with the continuation of [their] careers . . . .” Appellant’s Br. at 27-28.
“[R]etaliatory motive on the part of non-decision-makers is not enough to satisfy the
causation element of a CEPA claim.” Caver v. City of Trenton, 420 F.3d 243, 258 (3d
Cir. 2005). In any event, Dominguez’s argument rests on the assumption that multiple
managers independently issued him counseling notices with a shared purpose of
retaliating against him, either as a coincidence or as part of a vast conspiracy. The record
does not support such an assumption.
Finally, Dominguez argues that “the timing of events is certainly consistent with a
causal nexus” because it was “during this same period, from January to June, 2005, that
Dominguez was conducting his investigations . . . .” Appellant’s Br. at 29. As an initial
matter, Dominguez makes this argument without citation to record evidence. Dominguez
could not remember when he conducted certain investigations, and there is no evidence
placing the managers’ knowledge of an investigation in temporal proximity with the
issuance of a counseling notice. See App. at 111 (“I can’t remember the exact dates.”).

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Appellee’s Motion for taxation of costs in connection with1
preparation of the Supplemental Appendix is denied.
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Even if Dominguez conducted investigations from January to June 2005, that does not
permit an inference of causation without evidence that the managers knew about those
investigations. Dominguez has not met his burden.
IV.
For the above-stated reasons, the judgment of the District Court will be affirmed.1

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