NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2852-23
THOMAS TESAR and JULIANNA TESAR,
Plaintiffs-Appellants,
v.
SAYREVILLE BOROUGH (POLICE DEPARTMENT), JOHN ZEBROWSKI, and DAVID ERLA,
Defendants-Respondents. __________________________
Argued November 13, 2025 – Decided February 5, 2026
Before Judges Smith and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4277-21.
Theodore Campbell argued the cause for appellants.
Nicole M. Grzeskowiak argued the cause for respondents (Hoagland Longo Moran Dunst & Doukas, LLP, attorneys; Nicole M. Grzeskowiak, of counsel and on the brief; Christy L. Cushing, on the brief). PER CURIAM
Plaintiff Thomas Tesar appeals from a grant of summary judgment in
favor of defendants Sayreville Borough Police Department, Chief John
Zebrowski, and Lieutenant David Erla, claiming defendants retaliated against
him in violation of the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, after he reported Chief Zebrowski's alleged use of a
racial slur to Internal Affairs (IA) and the Middlesex County Prosecutor's Office
(MCPO). The trial court found plaintiff's claims were barred by CEPA's one-
year statute of limitations. We agree no actionable retaliation occurred during
the year prior to the lawsuit's filing. The only potentially timely retaliatory act
was the Department's investigation of plaintiff after he failed to write a police
report. But the written reprimand resulting from his failure to write the report
was rescinded and cannot serve to establish an adverse employment action
pursuant to CEPA. Therefore, we affirm the order dismissing plaintiff’s
complaint with prejudice.
I.
On July 20, 2021, plaintiff filed a complaint, seeking relief pursuant to
CEPA, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-42, the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and a
A-2852-23 2 variety of tort claims. On April 12, 2024, the trial court granted defendants'
motion for summary judgment as to all claims. On appeal, plaintiff challenges
only the grant of summary judgment of his CEPA claim. See Green Knight
Capital, LLC v. Calderon, 469 N.J. Super. 390, 396 (App. Div. 2021) ("An issue
not briefed on appeal is deemed waived." (quoting Woodlands Cmty. Ass'n v.
Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017))).
II.
In August 2014, plaintiff was hired by the Borough of Sayreville to work
as a patrol officer at the Sayreville Police Department (SPD). In his complaint,
plaintiff alleged a series of retaliatory acts and discipline taken by the
Department after he reported the Chief's alleged use of a racial slur to a
supervisor in July 2016.
In July 2016, plaintiff "was involved in a motor vehicle accident while
responding to a first aid call involving an overdose victim, when he sustained a
back injury," which necessitated physical therapy to address his injury. After
attending physical therapy in a tee shirt, shorts, and baseball cap, plaintiff
returned to police headquarters, where he encountered Chief Zebrowski. The
two men had a short and cordial conversation. Shortly thereafter, Sergeant
Gawron approached plaintiff, and stated, "I just got my a[**] chewed out by the
A-2852-23 3 Chief because of you." Gawron purportedly confronted plaintiff and remarked
the Chief "wanted to know why he [Patrolman Tesar] was walking around the
building dressed like a '[n****r].'"
After this incident, plaintiff called defendant Erla, who told plaintiff he
did not believe Zebrowski would "say something like that," and advised plaintiff
to have a private conversation with Zebrowski. When plaintiff confronted
Zebrowski, he claimed "those words never came out of his mouth." Plaintiff
ultimately decided not to file any complaint with the SPD at that time.
On February 6, 2019, the MCPO was "assigned to investigate a demeanor
complaint lodged against [Zebrowski]." One week later, the MCPO obtained
formal statements from various SPD employees. One stated they did not recall
hearing any conversation relevant to the 2016 racial-slur incident, another
admitted hearing Zebrowski refer to plaintiff with a racial slur, and yet another
employee stated they could not remember the incident but reasoned it "[was]
possible." On February 20, 2019, the MCPO took a formal statement from
Zebrowski, in which he admitted directing another officer to discuss plaintiff's
attire, but he denied using a racial slur. Based on its investigation, the MCPO
determined the complaint against Zebrowski could not be sustained, but it
A-2852-23 4 sustained demeanor complaints filed against the two other members of the
department.
Plaintiff alleged that "as time passed, it became evident that specific
officers within the [SPD] were attempting to avoid working with plaintiff. . . .
[by] avoid[ing] responding to calls involving him in a timely manner, . . .
put[ting] his personal safety at risk." At his deposition, plaintiff "clarified that
this allegation only concerned the response times of [officer] Jamie Unkel."
Plaintiff also testified these purported delayed response times by Unkel occurred
in the 2018–2019 timeframe. Plaintiff stated on one specific call, Unkel delayed
her response time to an incident that was in her area of responsibility. When
asked during his deposition if he believed Unkel was trying to avoid working
with him specifically, plaintiff stated:
I don't know what her intent was. . . . I don't know if she was doing it, like I said, specifically to me or other officers. I specifically observed it happening to me. So I addressed it that way. I'm not going to speculate to what her intent was or why she was doing it.
When asked if plaintiff reported the delayed response times to IA at SPD,
plaintiff replied:
No. No, I didn't. And the point of . . . reporting these is not to try to get her in trouble. I didn't want it to get to [IA]. I just wanted the issue to be addressed whether . . . she needs to be spoken to or whatever it is. But . . .
A-2852-23 5 the intent was never to escalate the situation or make her feel uncomfortable. It's . . . she felt a certain way, then it should have been addressed and that was my point. I don't want to take it to [IA]. I didn't think it needed to get to [IA] I wished the supervisor . . . would have addressed it. And I guess they did or didn't.
In November 2020, plaintiff submitted a bid to have his work schedule
switched from A-side to B-side, "which he perceived to have a better schedule
with more holidays off." Plaintiff claimed the officers that were assigned the B-
side shifts were upset because they did not want to work with plaintiff.
However, in 2021 and 2022, plaintiff was assigned the shift he wanted.
Plaintiff claims the junior officer who was assigned to work with plaintiff
was unhappy with this outcome and offered another officer $1,000 to switch
positions, which the officer declined. Plaintiff maintained this was well known
throughout the department, yet no incident, investigation, or discipline was
conducted. Plaintiff conceded no money was exchanged but maintained the only
reason money that did not occur was because the officer rejected it. In his
deposition, plaintiff stated he did not report this incident.
On November 20, 2020, Zebrowski sent individual emails explicitly
directing plaintiff, Erla, and several other officers to participate in an internal
investigation spearheaded by outside counsel who was "hired by [the SPD] for
the purpose of conducting a neutral workplace investigation." Zebrowski did
A-2852-23 6 not provide details of the matters underlying the inquiry. In his deposition,
plaintiff testified he was being targeted because he claimed Zebrowski used a
racial slur towards him in 2016. However, plaintiff conceded he "hardly
remember[ed]" the investigation, had no personal knowledge as to whether
Zebrowski was ever made aware of what plaintiff told the investigator, and could
recall no negative consequences stemming from his participation in the
investigation.
On April 25, 2021, plaintiff and another officer were dispatched to
respond to a call regarding an incident at a bakery in Sayreville. The owner of
the bakery observed males who appeared to be intoxicated. After the owner
called the SPD, she "observed one police car drive by slowly, [but] the police
car continued on its way without speaking to the males or stopping at her store."
She stated the suspicious males "continued to hang out in front of her store for
more than two hours . . . acting rowdy." The bakery owner also told the reporting
officer "it was raining a little bit and the males were probably staying under her
awning to prevent getting wet."
The following day, the officer who received the initial call observed there
was no report completed on the incident. The reporting officer subsequently
made a report of the incident to be forwarded to IA.
A-2852-23 7 In defendants' statement of facts, they allege "plaintiff arrived first at the
scene and spoke to the individuals while still inside his patrol vehicle ." The
individuals told plaintiff they were waiting for an Uber. Plaintiff maintained he
parked in the lot for twenty minutes until another officer arrived. Plaintiff
conceded he never spoke to the bakery owner to convey to her that he believed
the males "did not present a threat." Plaintiff denied an internal investigation
was opened against him.
During his deposition regarding the April 25, 2021 incident, plaintiff
admitted part of his duties as a patrolman was to draft reports. He denied he
failed to write an incident report but noted it could not be established that all
interactions with the public have been consistently documented in written form.
On May 14, 2021, Erla filed a report regarding his interview of plaintiff.
When asked about the minimal nature of the call, plaintiff told Erla "his training
and experience . . . led him to believe no report was necessary . . . for relatively
minor incidents," and believed it was "common practice." Plaintiff also tol d
Erla he was concerned that he would be accused of harassing the three males
and being racist if he tried to engage more with the men that were the subject of
the bakery owner's concern.
After the investigation concluded, plaintiff was found to have violated
A-2852-23 8 SPD rules and regulations because he failed to properly document the incident.
IA subsequently stated these violations constituted a neglect of duty. See
N.J.A.C. 4A:2-2.3(a)(7). On June 2, 2021, plaintiff was issued a verbal
reprimand. On June 3, 2021, plaintiff refused the verbal reprimand.
On October 28, 2021, the matter was submitted by plaintiff's supervising
officer, as the grievant, to the State of New Jersey Public Employment Relations
Commission arbitrator, who found the Borough acted arbitrarily and
capriciously when it issued a written warning. On April 25, 2022, plaintiff's
verbal reprimand was rescinded and removed from plaintiff's personnel file by
IA.
Plaintiff also alleged other acts of retaliation. He claimed he spoke with
a lieutenant in December 2017, and was informed an administration position
would soon be open. Other officers were offered the job, but plaintiff was not
informed of the opening until his conversation with the lieutenant. The
lieutenant noted plaintiff's interest in the position, but plaintiff was never offered
the position.
In December 2016, plaintiff admitted to stopping at his home while on
duty for about 20 to 30 minutes. Plaintiff was advised by a superior to try to
A-2852-23 9 limit the amount of time he spends at home but otherwise received no formal
discipline.
On June 24, 2018, plaintiff arrived at headquarters for his shift after
drinking alcohol earlier in the day. At line-up, a lieutenant smelled alcohol on
plaintiff's breath. Plaintiff admitted to drinking alcohol earlier in the day.
Zebrowski initially recommended that plaintiff receive a 45-day suspension for
violating department rules, but PBA counsel negotiated a 15-day suspension of
vacation time in lieu of the 45-day suspension.
In September 2018, SPD audited its officers' shift schedules after being
informed that several officers were working more than sixteen hours in a single
day. Plaintiff and six other officers were found to have violated this policy. A
charge against plaintiff was substantiated for violating the policy.
In May 2019, SPD received a tip that plaintiff was asleep in his patrol
vehicle. The supervisor who responded observed that plaintiff was awake but
reclining. Plaintiff received no discipline for the incident but claimed he was
reported to be asleep as retaliation for his involvement as a witness in the
investigation of another officer who was allegedly asleep in his car. Plaintiff's
claim was not substantiated by IA.
A-2852-23 10 III.
"The Legislature enacted CEPA to 'protect and encourage employees to
report illegal or unethical workplace activities and to discourage public and
private sector employers from engaging in such conduct.'" Dzwonar v
McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd.
of Educ., 138 N.J. 405, 431 (1994)). "[CEPA] protects workers who blow the
whistle on their employers' illegal, fraudulent, or otherwise improper activities
that implicate the health, safety, and welfare of the public." D'Annunzio v.
Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007). CEPA's protection is
liberally construed, consistent with its remedial purpose. Abbamont, 138 N.J.
at 431. This is because its primary goal "is to protect society at large." Cedeno
v. Montclair State Univ., 163 N.J. 473, 478 (2000). The statute "shields an
employee who objects to, or reports, employer conduct that the employee
reasonably believes to contravene the legal and ethical standards that govern the
employer's activities." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 27 (2014).
To establish a prima facie CEPA claim, a plaintiff must demonstrate that:
(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;
A-2852-23 11 (2) he or she performed a "whistle-blowing" activity described in [N.J.S.A. 34:19-3(a) or (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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar, 177 N.J. at 462).]
To satisfy the first element of a CEPA claim, a plaintiff "must identify a
statute, regulation, rule, or public policy that closely relates to the complained -
of conduct." Dzwonar, 177 N.J. at 463. A plaintiff "need not show that his or
her employer or another employee actually violated the law or a clear mandate
of public policy" id. at 462, or that the conduct is "an actual violation of a law
or regulation," Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000). The
plaintiff only needs to show that he "'reasonably believe[d]' that to be the case."
Ibid.
The second element of a CEPA claim requires the plaintiff to prove he
performed a whistleblowing activity. Lippman, 222 N.J. at 380. Pursuant to
N.J.S.A. 34:19-3(a), an employee performs a protected whistleblowing activity
if he or she:
Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the
A-2852-23 12 employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation[.]
Third, a CEPA plaintiff must demonstrate he suffered an adverse
employment action. Lippman, 222 N.J. at 380. CEPA defines retaliation as "the
discharge, suspension or demotion of an employee, or other adverse employment
action taken against an employee in the terms and conditions of employment."
N.J.S.A. 34:19-2(e).
Finally, to satisfy the fourth element of CEPA, a plaintiff must
demonstrate "a causal connection . . . between the whistle-blowing activity and
the adverse employment action." Dzwonar, 177 N.J. at 462. To determine if a
plaintiff has established causation, courts should focus on the "circumstances
surrounding the employment action," including temporal proximity between the
protected conduct and the adverse employment action. Maimone v. City of
Atlantic City, 188 N.J. 221, 237 (2006). A CEPA plaintiff may establish
causation by providing "evidence of circumstances that justify an inference of
A-2852-23 13 retaliatory motive." Romano v. Brown & Williamson Tobacco Corp., 284 N.J.
Super. 543, 550 (App. Div. 1995); see also Roach, 164 N.J. at 612.
Claims pursuant to CEPA must be filed within the applicable statute of
limitations, which is one year. See N.J.S.A. 34:19-5.
There is, however, an exception for conduct that is part of a pattern of
continuing discriminatory conduct. Roa v. Roa, 200 N.J. 555, 566 (2010).
"[T]he continuing violation theory was developed to allow for the aggregation
of acts, each of which, in itself, might not have alerted the employee of the
existence of a claim, but which together show a pattern of discrimination." Id.
at 569. Thus, "a plaintiff may pursue a claim for discriminatory conduct if he
or she can demonstrate that each asserted act by a defendant is part of a pattern
and at least one of those acts occurred within the statutory limitations period."
Shepard v. Hunterdon Dev. Ctr., 174 N.J. 1, 6-7 (2002).
However, "the doctrine does not permit . . . the aggregation of discrete
discriminatory acts for the purpose of reviving an untimely act of discrimination
that the victim knew or should have known was actionable." Roa, 200 N.J. at
569.
As the trial court correctly held, the continuing violation theory does not
apply because plaintiff alleges a series of discrete acts of retaliation . Plaintiff
A-2852-23 14 attempts to avoid the statute of limitations by framing what are in fact a series
of discrete acts as a pattern of retaliation constituting a hostile work
environment. He claims, for example, that the discipline he faced for arriving
at work intoxicated and violating the department's sixteen-hour rule was part of
a pattern of retaliatory harassment for reporting the racial slur. But this
argument overlooks the fact that discrete acts of retaliation are distinct from a
hostile work environment:
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts.
[Shepherd, 174 N.J. at 19 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)).]
The discrete acts of retaliation alleged by plaintiff, like a retaliatory discharge,
would have been actionable under CEPA as soon as they occurred. Cf. Roa, 200
N.J. at 569 ("[A] discharge is a discrete discriminatory act that places an
employee on notice of the existence of a cause of action and of the need to file
a claim. The statute of limitations begins to run on the day that act takes
place."); O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (noting
A-2852-23 15 "a bright-line distinction between discrete acts, which are individually
actionable, and acts which are not individually actionable but may be aggregated
to make out a hostile work environment claim. The former must be raised within
the applicable limitations period or they will not support a lawsuit.").
For any of plaintiff's allegations to be timely, the retaliation must have
occurred after July 20, 2020, a year before plaintiff filed his complaint. The
only viable act of potential retaliation falling within that time frame is the
reprimand plaintiff received after failing to write a police report. However, there
was no adverse employment action associated with this incident because the
reprimand was subsequently rescinded. See Beasley v. Passaic Cnty., 377 N.J.
Super. 585, 607 (App. Div. 2005) ("[R]escinded employer action that makes
plaintiff completely whole and remedies a prior decision cannot constitute an
adverse employment action."). Because he cannot demonstrate an adverse
employment action in connection with this incident, plaintiff failed to
demonstrates a prima facie case under CEPA. Thus, the trial court correctly
granted summary judgment as to plaintiff's CEPA claim.
Affirmed.
A-2852-23 16