SERGEANT FIRST CLASS FRANK CHIOFALO v. STATE POLICE OF THE STATE OF NEW JERSEY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2349-16T1
SERGEANT FIRST CLASS
FRANK CHIOFALO, a member
of the New Jersey State
Police (Badge No. 4772),
Plaintiff-Respondent/
Cross-Appellant,
v.
STATE OF NEW JERSEY,
DIVISION OF STATE POLICE
OF THE STATE OF NEW JERSEY,
and DIVISION OF LAW AND
PUBLIC SAFETY,
Defendants-Appellants/
Cross-Respondents,
and
ROBERT CUOMO and
JOSEPH R. FUENTES,
Defendants.
______________________________
Argued April 26, 2018 – Decided June 21, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
0049-13.
Adam Robert Gibbons, Deputy Attorney General,
argued the cause for appellants/cross-
respondents (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Adam
Robert Gibbons, on the briefs).
George T. Daggett argued the cause for
respondent/cross-appellant.
PER CURIAM
Plaintiff, Frank Chiofalo, a retired New Jersey State
Trooper, filed a complaint under the New Jersey Conscientious
Employee Protection Act,
N.J.S.A. 34:19-1 to -8 (CEPA), against
defendants, State of New Jersey; Division of State Police of the
State of New Jersey (NJSP); Division of Public Safety; Robert
Cuomo; and Joseph R. Fuentes. After the trial court denied
defendants' motion for summary judgment, the matter was tried
before a jury that returned a verdict in favor of plaintiff. The
trial court entered judgment against defendants and later denied
their motions for judgment notwithstanding the verdict, R. 4:40-
2(b), and for a new trial, R. 4:49-1(a).
Defendants now appeal from the trial court's April 1, 2016
order denying their motion for summary judgment, and its November
18, 2016 order denying their post-verdict motions.1 Plaintiff
1
Plaintiff's notice of appeal only refers to the November 18,
2016 order as the subject of this appeal. Normally, we do not
consider judgements or orders not identified in the notice of
2 A-2349-16T1
cross-appeals from the trial court's November 18, 2016 order,
challenging the amount of attorney fees awarded by the court.
On appeal, defendants argue that summary judgment should have
been granted because plaintiff failed to prove a prima facie case
under CEPA. Defendants also contend that at trial: (1) plaintiff's
testimony alone was insufficient to prove his economic damages;
(2) the court erred in permitting plaintiff to testify as to future
wage loss when he voluntarily quit his job; and (3) it was error
for the trial court to instruct the jury on punitive damages
because defendants' conduct was not egregious. In his cross-
appeal, plaintiff argues that the trial court's award of counsel
fees only accounted for the time he spent in court. For the
reasons that follow, we vacate the court's final judgment and
reverse the orders denying defendants' summary judgment and
awarding plaintiff counsel fees.
The facts in the motion record, viewed "in the light most
favorable to [plaintiff,] the non-moving party[,]" Globe Motor Co.
v. Igdalev,
225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)), are
appeal. See R. 2:5-1(f)(3)(A) (stating that a notice of appeal
"shall designate the judgment, decision, action or rule, or part
thereof appealed from"); Fusco v. Bd. of Educ. of City of Newark,
349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating that
appellate review pertains only to judgments or orders specified
in the notice of appeal). However, plaintiff's accompanying case
information statement identified the April 1, 2016 order, and all
parties have fully briefed the issue before us.
3 A-2349-16T1
summarized as follows. In 2012, plaintiff, a member of the NJSP
since 1988, was an assistant administrative officer stationed at
the NJSP Totowa barracks. He held the rank of Sergeant First
Class, which entitled him to be referred to as "Sergeant Major."
His job duties were clerical in nature, and included the processing
of incoming and outgoing documents. After he filed his complaint
in this action, plaintiff notified the NJSP that he was retiring
effective July 1, 2013. He retired on that date in good standing.
Plaintiff's claims arose from an incident in March 2012,
relating to Trooper Joseph Ventrella and another trooper who were
involved in an unauthorized high-speed escort of civilians driving
high-end cars down the Garden State Parkway. Once identified,
both troopers were suspended and eventually terminated from their
positions. Major Robert Catullo, who was the commanding officer
at the Totowa barracks in charge of those two members, and his
staff were also relieved of their positions. On April 27, 2012,
defendant Major Robert Cuomo replaced Catullo and became
plaintiff's supervisor.
On that same date, plaintiff received, from Deputy Branch
Commander of Field Operations Major Edward Cetnar, a copy of an
April 4, 2012 letter, which had been written by a civilian to
defendant Joseph R. Fuentes, the NJSP's superintendent, commending
Ventrella for his participation in the escort event. Fuentes
4 A-2349-16T1
received the letter on or about April 13, 2012. By April 23,
2012, Ventrella was suspended from the NJSP.
Contrary to his usual procedure for such documents, plaintiff
never "doc track[ed]"2 the letter because he did not know what to
do with it. Instead, plaintiff made a copy of the letter and gave
it to Catullo who told plaintiff that he would attempt to learn
more about the letter and get back to him. However, Catullo never
got back to plaintiff as he was relieved of his position later
that day and replaced by Cuomo. On April 30, 2012, plaintiff took
a copy of the letter to Cuomo, and Cuomo assured plaintiff that
he would call Cetnar and get back to plaintiff.
After a week of not hearing anything, plaintiff decided to
follow up with Cuomo. When he did, Cuomo informed plaintiff that
the letter did "not exist." Plaintiff responded that the letter
did exist and he told Cuomo, "I'm not going to get rid of it."
Cuomo then told plaintiff, "[D]o not approach me with it again."
Cuomo never explicitly told plaintiff to "get rid of it" or
otherwise destroy the document, but plaintiff understood that he
was being told to destroy it and to not discuss it again. After
the conversation, plaintiff brought the document back to his desk
2
"Doc track[ing]" refers to the process of scanning and assigning
a number to incoming paperwork in order to track the document in
the NJSP's computer system.
5 A-2349-16T1
and put it in a bin where he kept unfinished paperwork. He hoped
that someone would tell him what to do with it, but no one ever
did. There were no further discussions between plaintiff and
anyone else in the NJSP about the document and plaintiff never
destroyed or otherwise disposed of the document.
In addition to the incident involving the recommendation
letter, plaintiff's claim relied upon a discussion he had with
Cuomo about Cuomo's improper documentation of hours worked.
According to plaintiff, after Cuomo once questioned the amount of
vacation time plaintiff was taking, plaintiff responded that he
took his "time and . . . deduct[ed] it appropriately, unlike
others." Plaintiff believed that Cuomo had falsified his time
records based upon plaintiff's review of the timesheets for the
twenty-five staff troopers located at Totowa, which he performed
as part of his regular job duties. Plaintiff never mentioned his
suspicions to anyone else prior to filing his complaint.
Plaintiff was later denied a promotion to Lieutenant, even
though he was highly recommended for one, and he was transferred
out of Totowa to Netcong, which plaintiff viewed as unwarranted
adverse employment actions. According to plaintiff, he was not
promoted because of the incident with Cuomo involving the
civilian's letter about Ventrella.
6 A-2349-16T1
Plaintiff filed a complaint, which he amended on June 12,
2013, alleging two violations of CEPA: (1) Cuomo directing him to
cover up information contained in State Police documents, and (2)
Cuomo falsifying his time records. Plaintiff also alleged that
he was denied a promotion, transferred to another position, and
stripped of his title of "Sergeant Major" in retaliation for
reporting Cuomo.3 Although plaintiff alleged that he was
retaliated against for his "object[ion] to and refus[al] to
participate in any activity, policy or practice which he reasonably
believed was a violation of law and was fraudulent or criminal[,]"
he did not identify any law or regulation upon which he relied.
In 2016, defendants moved for summary judgment, arguing that
plaintiff failed to set forth a prima facie case under CEPA.
Defendants contended that plaintiff failed to present any evidence
suggesting that he had a reasonable belief that Cuomo's conduct
violated a law, rule, regulation or mandate of public policy. They
also argued that plaintiff was not a whistleblower as contemplated
by
N.J.S.A. 34:19-3(c), and, in any event, he failed to establish
3
After plaintiff filed suit, the NJSP launched an internal
investigation of plaintiff. Plaintiff was charged with
"[u]nauthorized [u]se [o]f Division [d]ocuments[.]" He was also
accused of keeping an official document, and failing to report a
reportable incident. The investigation found that plaintiff's
complaint against Cuomo was unfounded, and it substantiated the
violations against plaintiff.
7 A-2349-16T1
a causal connection between the alleged whistleblowing and alleged
employment actions.
On April 1, 2016, the trial court denied defendants' motion,
finding that there were genuine disputes of material fact. The
court concluded that "plaintiff brought the document to the
attention of his superiors and then he suffered a loss of
responsibilities thereafter. . . . [Viewed] in the light most
favorable to . . . plaintiff, [he] would have a winning case." On
May 20, 2016, it denied defendants' motion for reconsideration.
The matter was then tried before a jury that returned a
verdict in favor of plaintiff, awarding him $5400 in back pay,
$50,000 in future wages, $250,000 in lost pension benefits, and
$150,000 in punitive damages. Defendants moved for judgment
notwithstanding the verdict, R. 4:40-2(b), or in the alternative,
a new trial, R. 4:49-1(a), or remittitur. On November 18, 2016,
the trial court denied both motions and granted plaintiff's motion
for counsel fees under CEPA. This appeal followed.
We begin with defendants' appeal from the April 1, 2016 order
denying their motion for summary judgment. Among their contentions
on appeal, defendants argue that plaintiff failed to present a
prima facie claim under CEPA because he failed to "identify a
specific law or policy that prohibited . . . Cuomo's conduct[.]"
Defendants contend that plaintiff "never presented any evidence
8 A-2349-16T1
to suggest there was any . . . policy directing that the
destruction of official documents was improper, other than his
subjective conclusions." Similarly, they contend "that
[p]laintiff's conduct relating to [his comment about] Cuomo's
timekeeping did not amount to whistleblowing." According to
defendants, plaintiff's statement that he "put in [his] time
properly, unlike others" was too ambiguous to constitute
whistleblowing.
We review a court's grant of summary judgment de novo,
applying the same standard as the trial court. Conley v. Guerrero,
228 N.J. 339, 346 (2017). Summary judgment must "be granted 'if
the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a
matter of law.'" Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016) (quoting R. 4:46-
2(c)).
Applying these guiding principles, we conclude plaintiff
failed to meet his burden on summary judgment to establish a prima
facie claim under CEPA. To establish a prima facie case of
retaliatory action under CEPA,
a plaintiff must demonstrate:
9 A-2349-16T1
(1) he or she reasonably believed that his or
her employer's conduct was violating either 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.S.A.] 34:19-3(c)[4];
(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.
4 N.J.S.A. 34:19-3(c) provides in pertinent part:
An employer shall not take any retaliatory
action against an employee because the
employee does any of the following:
. . . .
c. Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law . . .;
(2) is fraudulent or criminal, including any
activity, policy or practice of deception or
misrepresentation which the employee
reasonably believes may defraud any
shareholder, investor, client, patient,
customer, employee, former employee, retiree
or pensioner of the employer or any
governmental entity; or
(3) is incompatible with a clear mandate of
public policy concerning the public health,
safety or welfare or protection of the
environment.
10 A-2349-16T1
[Lippman v. Ethicon, Inc.,
222 N.J. 362, 380
(2015) (quoting Dzwonar v. McDevitt,
177 N.J.
451, 462 (2003)).]
The first of these prongs is "a pivotal component[.]"
Hitesman v. Bridgeway, Inc.,
218 N.J. 8, 32 (2014). The plaintiff
must identify an "authority in one or more of the categories
enumerated in the statute that" he or she reasonably believes has
been violated. Ibid.. Although the employer's conduct need not
constitute an actual violation for the CEPA claim to be viable,
Dzwonar,
177 N.J. at 462, the identified authority "provides a
standard against which the conduct of the defendant may be
measured." Hitesman,
218 N.J. at 33.
Plaintiff has identified the violation as self-evident, that
official police records should not be destroyed, and that an
employee should not be falsifying timesheets. However, plaintiff
failed to articulate "an authority recognized by CEPA" that
defendants have violated. Ibid. In order for a plaintiff "to
assert a CEPA claim[,]" he or she "must identify a law, rule,
regulation, declaratory ruling adopted pursuant to law or
professional code of ethics that applies to and governs the
employer[.]" Ibid. "[W]hen a plaintiff brings [an action]
pursuant to [N.J.S.A.] 34:19-3[(c)], the trial court, as a
threshold matter, must 'first find and enunciate the specific
terms of a statute or regulation, or the clear expression of public
11 A-2349-16T1
policy, which would be violated if the facts as alleged are true.'"
Dzwonar,
177 N.J. at 463 (citations omitted).
When relying upon a claim under an alleged "clear mandate of
public policy[,]" a plaintiff is still required "to identify a
source of law or other authority, constituting an expression of
public policy, that sets a governing standard for the defendant
employer's conduct." Hitesman,
218 N.J. at 33. Although "a 'clear
mandate' of public policy need not be enacted in a constitution,
statute or rule, [it] must nonetheless provide a definite standard
by which the employer's conduct may be gauged[.]" Ibid.; see also
Massarano v. N.J. Transit,
400 N.J. Super. 474, 488-90 (App. Div.
2008). "The trial court can and should enter judgment for a
defendant when no such law or policy is forthcoming." Dzwonar,
177 N.J. at 463.
Here, plaintiff never identified any law or regulation that
he claimed Cuomo violated by telling plaintiff not to approach him
again about the copy of the letter written by a civilian to the
NJSP Superintendent, which plaintiff identified as an official
record without citation to any authority. Similarly, plaintiff
never identified any specific regulation that Cuomo violated by
not reporting his time correctly, as plaintiff believed. To the
extent plaintiff relied upon a violation of "clear mandate of
public policy[,]" plaintiff still failed to come forward on summary
12 A-2349-16T1
judgment with "a source of law or other authority" to support his
claim. Hitesman,
218 N.J. at 33. Absent that proof, defendants
were entitled to summary judgment.
Because we are satisfied defendants were entitled to the
dismissal of plaintiff's complaint on summary judgment, we need
not reach defendants' remaining arguments. We only note
plaintiff's passing comment about Cuomo's timekeeping was hardly
"whistleblowing" as contemplated by CEPA. See Tartaglia v. UBS
PaineWebber, Inc.,
197 N.J. 81, 109 (2008) (stating that a
plaintiff is not required to make a complaint to an outside
authority, although doing so would "ordinarily be a sufficient
means of expression, [while] a passing remark to co-workers" or
"a complaint to an immediate supervisor generally would not"); see
also Battaglia v. United Parcel Serv., Inc.,
214 N.J. 518, 560
(2013) (stating actions taken by a plaintiff must clearly
demonstrate to his employer "plaintiff was trying to blow the
whistle").
Judgement vacated. The orders denying defendants' summary
judgment and granting plaintiff counsel fees are reversed. The
matter is remanded for entry of an order dismissing plaintiff's
complaint with prejudice.
13 A-2349-16T1
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