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Sergeant First Class Frank Chiofalo v. State

Supreme Court of New Jersey

July 16, 2019

Sergeant First Class Frank Chiofalo, a member of the New Jersey State Police (Badge No. 4772), Plaintiff-Appellant,
v.
State of New Jersey, Division of State Police of the State of New Jersey, and Department of Law and Public Safety, [1] Defendants-Respondents, and Robert Cuomo and Joseph R. Fuentes, Defendants.

          Argued April 23, 2019

         On certification to the Superior Court, Appellate Division.

          George 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).

          Alan 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 brief).

          PER CURIAM.

         Plaintiff 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.

         As the 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.

         The 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.

         On 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.

         Chiofalo 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.

         Defendants 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.

         Defendants 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.

         The 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."

         The 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. 34:19-3(c)(2) alone.

         HELD: 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 timekeeping allegations.

         1. CEPA 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. 17-20)

         3. 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)

         4. At 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)

         AFFIRMED IN PART and REVERSED IN PART.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.

          PER CURIAM.

         Plaintiff, 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 appellate court.

         We 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 issues.

         I.

         A.

         Because 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).

         Plaintiff 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.

         As the 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.

         Chiofalo's 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.[2]

         Chiofalo claimed that the NJSP's adverse employment actions violated CEPA because they were retaliation for Chiofalo's engagement in protected activity. The ...


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