Sergeant First Class Frank Chiofalo, a member of the New Jersey State Police (Badge No. 4772), Plaintiff-Appellant,
State of New Jersey, Division of State Police of the State of New Jersey, and Department of Law and Public Safety,  Defendants-Respondents, and Robert Cuomo and Joseph R. Fuentes, Defendants.
April 23, 2019
certification to the Superior Court, Appellate Division.
T. Daggett argued the cause on behalf of appellant (Law
Offices of George T. Daggett, attorneys; George T. Daggett,
on the brief).
Stephanie J. Cohen, Assistant Attorney General, argued the
cause on behalf of respondents (Gurbir S. Gewal, Attorney
General, attorney; Melissa Dutton-Schaffer, Assistant
Attorney General, of counsel, and Adam Robert Gibbons, Deputy
Attorney General, on the briefs).
H. Schorr argued the cause for amicus curiae National
Employment Lawyers Association of New Jersey (Schorr &
Associates, attorneys; Alan H. Schorr, of counsel and on the
Frank Chiofalo, a then-member of the New Jersey State Police
(NJSP), filed a complaint under the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, against his
employer and certain supervisors (collectively, defendants).
The sole issue in this whistleblower appeal is whether the
trial court erred in not dismissing this matter in its
entirety on summary judgment prior to trial.
Assistant Administrative Officer of Troop B of the NJSP,
Chiofalo was required to log documents that came in and out
of headquarters and to collect reports from the Troop B
commander. Chiofalo alleges he was subjected to adverse
employment actions as retaliation for his engagement in
protected activity related to two incidents.
first pertained to a claimed refusal to destroy internal NJSP
documents. On March 20, 2012, a sergeant and a trooper
participated in an unsanctioned escort on the Garden State
Parkway, for which they later became subjects of internal
review. A "letter of appreciation" from one of the
escorted civilians extended thanks for the officers' help
(the Civilian Letter). On April 18, 2012, Major Edward
Cetnar, Deputy Branch Commander of Field Operations, sent an
internal memorandum (the Cetnar Memo) noting that the
Civilian Letter had been included in the trooper's
personnel file and adding, "[p]lease convey to [the
trooper] my appreciation for a job well done." On April
23, 2012, the officers were suspended without pay pending
investigation into the escort.
Friday, April 27, 2012, the Civilian Letter and the Cetnar
Memo were received by Chiofalo, who presented them the
following Monday to Major Robert Cuomo, the commander of
Troop B, and asked what to do with the documents. Cuomo
stated he would reach out to Cetnar and provide further
instructions. The next week, having received no instructions,
Chiofalo went to Cuomo to discuss what he should do with the
documents. In his deposition, Chiofalo stated "[Cuomo]
said 'It does not exist, '" to which Chiofalo
replied, ["I]t does exist I have it in my hand. . . .
I'm not going to get rid of it.["] According to
Chiofalo, that exchange made it "pretty clear" to
him that Cuomo was asking Chiofalo "to get rid of"
the documents, and that in stating he was "not going to
get rid" of the documents, he was refusing to
participate in a criminal or fraudulent act.
claimed that the second protected activity occurred during an
interaction with Cuomo in which he accused Cuomo of not
reporting his vacation time. According to Chiofalo, Cuomo
"questioned why [Chiofalo] was taking two weeks off in
July." In response, Chiofalo stated that "[he]
earned [his] vacation time and when [he] take[s] it, they
dock it out of [his] bank" and that "[he] take[s]
[his] time, unlike others." According to Chiofalo, when
he stated "unlike others" he was referring to Cuomo
and to his suspicion that Cuomo was not properly reporting
all of the time that he took off.
filed a motion for summary judgment, alleging that Chiofalo
failed to set forth a prima facie case under CEPA. The court
denied the motion. The matter proceeded to trial, and a jury
awarded Chiofalo compensatory and punitive damages.
appealed the denial of summary judgment and of the post-trial
motions they filed. In addition to failure to state a claim,
defendants also argued that Chiofalo failed to identify a
specific law or policy that prohibited Cuomo's conduct.
Appellate Division reversed the trial court judgment,
stating, with respect to the validity of a CEPA claim under
N.J.S.A. 34:19-3(c), that a plaintiff must first find and
enunciate the specific terms of a statute or regulation, or
the clear expression of public policy, which would be
violated if the facts as alleged are true. The appellate
court concluded that Chiofalo failed to do so and that
defendants were entitled to summary judgment on that basis.
Specific to the timekeeping claim, the Appellate Division
added that Chiofalo's statement to Cuomo "was hardly
'whistleblowing' as contemplated by CEPA."
Court granted Chiofalo's petition for certification. 236
N.J. 220 (2018). Although Chiofalo initially alleged CEPA
violations under N.J.S.A. 34:19-3(a) and (c), he conceded at
oral argument that his case now rests on N.J.S.A.
The Court does not agree that the trial court erred in
refusing to grant defendants summary judgment on
plaintiff's CEPA claim related to the alleged refusal to
destroy documents, but affirms as to the fraudulent
was enacted to cement New Jersey's commitment to protect
and encourage employees to report illegal or unethical
workplace activities and should be construed liberally to
effectuate its important social goal. N.J.S.A. 34:19-3 sets
forth the statute's essential prohibition of employer
retaliation for an employee's protected activities, which
are identified in three subsections. Subsection (c)(2)
protects employees who "[o]bject to, or refuse to
participate in any activity, policy or practice which the
employee reasonably believes . . . is fraudulent or
criminal." Subsections (c)(1) and (c)(3), respectively,
protect employees who take similar action with regard to
activities, policies, or practices they reasonably believe
are "in violation of a law, or a rule or regulation
promulgated pursuant to law" or are "incompatible
with a clear mandate of public policy." (pp. 15-17)
2. In a
seminal case, the Court addressed a plaintiff's CEPA
claims brought under N.J.S.A. 34:19-3(c)(1) and (3).
Dzwonar v. McDevitt, 177 N.J. 451, 461-69 (2003).
There, the Court summarized generally what a plaintiff must
set forth to establish a prima facie case pursuant to
N.J.S.A. 34:19-3(c). The Court stated that either "the
court or the plaintiff" must identify the
statute, regulation, rule, or public policy that closely
relates to the complained-of conduct. Id. at 464
(emphasis added). The identification requirement assists
trial courts in weeding out those cases that only concern the
most trivial or benign employee complaints. Importantly,
Dzwonar notes that a plaintiff need not "allege
facts that, if true, actually would violate that statute,
rule, or public policy." Id. at 463. A
plaintiff is required only to "set forth facts that
would support an objectively reasonable belief that a
violation has occurred." Id. at 464. (pp.
While Dzwonar would seem to impose some
identification expectation for CEPA claims brought under
either N.J.S.A. 34:19-3(c)(1), (2), or (3), the Court is
unaware of any New Jersey court that has explicitly imposed
this requirement under subsection (c)(2). Only Battaglia
v. United Parcel Service, Inc., 214 N.J. 518 (2013), has
analyzed N.J.S.A. 34:19-3(c)(2) post-Dzwonar, and it
does not mention any express or implied obligation to
identify some legal source rendering activity fraudulent.
That said, the better practice in CEPA actions brought under
(c)(2) surely is to identify the statutory or other basis for
claiming objected-to behavior is criminal or fraudulent.
"Criminal" or "fraudulent" activity is
often apparent and commonly recognizable, which distinguishes
(c)(2) claims from those brought under (c)(1) and (3). But
the parties and the court need to have a common understanding
of the legal principle that the plaintiff reasonably believed
was being violated to enable joinder. And if a defendant
questions the source of law relied on by the plaintiff, that
source should be provided by the plaintiff. (pp. 20-23)
no point during the trial or post-trial motions did
defendants here argue that the CEPA claim was deficient for
plaintiff's failure to identify a specific law, rule,
regulation or public policy. It is unfair to reassess the
summary judgment record based on arguments that were not
advanced and that relate to a point the parties appeared to
take for granted -- namely, that refusal to participate in
the destruction of documents would support a CEPA claim if
plaintiff reasonably believed that the destruction was
ordered or occurred. The Court therefore reverses the
Appellate Division to the extent that it vacated the jury
award based on the claim as to the destruction of internal
documents. The Court agrees, however, that Chiofalo's
alleged statement to Cuomo that "[he] take[s] [his]
time, unlike others" was simply too amorphous to
constitute "'whistleblowing' as contemplated by
CEPA." The Court therefore does not disturb the
Appellate Division's judgment with respect to
plaintiff's claim related to timekeeping. (pp. 23-25)
IN PART and REVERSED IN PART.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.
a then-member of the New Jersey State Police, filed a
complaint under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14, against his employer and
certain supervisors. The sole issue in this whistleblower
appeal is whether the trial court erred in not dismissing
this matter in its entirety on summary judgment prior to
trial. The Appellate Division concluded it was error and
vacated the jury verdict in plaintiff's favor. Other
issues raised by defendants on appeal were not reached by the
granted plaintiff's petition for certification and now
reverse in part. We do not agree that the trial court erred
in refusing to grant defendants summary judgment on one of
plaintiff's two bases for whistleblowing charges.
Accordingly, we remand to the Appellate Division for
consideration of defendants' unaddressed appellate
this appeal centers on the correctness of the denial of
summary judgment, we review the facts -- as presented at the
close of discovery when defendants filed their motion -- in
the light most favorable to plaintiff. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
Frank Chiofalo was an officer in the New Jersey State Police
(NJSP). At all relevant times, he was the Assistant
Administrative Officer of Troop B of the NJSP, holding the
rank of Sergeant First Class with the designation of Sergeant
Major. His assignment stationed him at the Troop B
Headquarters in Totowa.
Assistant Administrative Officer, Chiofalo's duties
required him to receive and track documents and other forms
of communication to and from Troop B. He was responsible for
the collection and tracking of reports and other paperwork,
managing inter-office and external mail, maintenance of
personnel folders, and managing incoming phone calls.
Pertinent to this appeal, his position required him to log
documents that came in and out of headquarters and to collect
reports from the Troop B commander in which the commander
would specify where he intended to be the following day.
initial complaint -- filed at the beginning of January 2013
against the NJSP, the Department of Law and Public Safety,
and individual members of the NJSP (collectively, defendants)
-- alleged that he was subjected to adverse employment
actions at or around the end of July 2012. The actions
complained of included being transferred to a less desirable
assignment (allegedly a demotion) and being blocked from a
promotion to Lieutenant. Shortly after filing the initial
complaint, Chiofalo filed for retirement from the NJSP,
requesting an effective date of June 1, 2013.
claimed that the NJSP's adverse employment actions
violated CEPA because they were retaliation for
Chiofalo's engagement in protected activity. The ...