SERGEANT FIRST CLASS FRANK CHIOFALO, ETC. VS. STATE OF NEW JERSEY (L-0049-13, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 21, 2018
• Docket: A-2349-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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