Sergeant First Class Frank Chiofalo v. State, A-30 September Term 2018
| Decision Date | 16 July 2019 |
| Docket Number | 081607,A-30 September Term 2018 |
| Citation | 213 A.3d 900,238 N.J. 527 |
| Parties | 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, Defendants-Respondents, and Robert Cuomo and Joseph R. Fuentes, Defendants. |
| Court | New Jersey Supreme Court |
George T. Daggett, Sparta, 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, Cherry Hill, 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).
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.
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, 666 A.2d 146 (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 alleged protected activity related to two incidents.
The first protected action identified by Chiofalo pertained to a claimed refusal to destroy internal NJSP documents in his possession. This claim has roots in an incident that involved other members of the State Police.
On March 20, 2012, Sergeant First Class Nadir Nassry and Trooper Joseph Ventrella participated in an unsanctioned high-speed escort of a collection of high-end sports cars on the Garden State Parkway. Both Nassry and Ventrella were stationed in the Totowa headquarters. When the escort later became publicly known, Nassry and Ventrella, as well as others, became subjects of internal review.
As far as the record reveals, the following sequence of events occurred. A letter dated April 4, 2012, was sent to the NJSP, addressed to Colonel Fuentes, the Superintendent of the NJSP. This "letter of appreciation" from one of the escorted civilian drivers extended thanks and appreciation for Nassry and Ventrella's help with the escort (the Civilian Letter). The Civilian Letter was stamped as received in the Superintendent's office on April 13, 2012. On April 17, 2012, a Superintendent's Action Memo from Colonel Fuentes -- a preprinted buck slip -- identified the Civilian Letter by a "Doc Track" number. A box was checked on the form to note the letter was being sent to Field Operations, and the form included the following handwritten direction:
A box at the bottom, "For Your Further Action," was also checked off.
On April 18, 2012, Major Edward Cetnar, Deputy Branch Commander of Field Operations, sent an internal memorandum to the Troop Commander of Troop C, noting that the Superintendent's Action Memo had been received and the Civilian Letter had been included in Ventrella's personnel file. Major Cetnar's memorandum also stated, under its Comments section, "[p]lease convey to [Ventrella] my appreciation for a job well done."
On April 23, 2012, Nassry and Ventrella were suspended without pay pending investigation into their participation in the escort.
On Friday, April 27, 2012, the Civilian Letter and the Cetnar Memo, which had been misdirected to Troop C, were received by Chiofalo in Troop B via interoffice mail. As the Assistant Administrative Officer responsible for receipt and tracking incoming correspondence and related directives, it was his job to act on those documents, which arrived days after the suspension of fellow troopers from Troop B. Chiofalo presented the documents to Major Catullo, then-commander of Troop B, and asked for instructions on what action should be taken. According to Chiofalo, Catullo stated that he needed to look into the matter and would follow up with further instructions. However, later that same day, Catullo was abruptly transferred from Troop B.
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. Chiofalo alleged there were discrepancies between the reports Cuomo gave him listing where he would be the following day and what Cuomo reported to payroll. Because of those discrepancies, Chiofalo believed that Cuomo was underreporting his time off.
Chiofalo alleged that he confronted Cuomo about that underreporting in late June 2012. 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.
After the filing of Chiofalo's initial complaint, the NJSP opened an internal affairs investigation, which, among other things, implicated Chiofalo for not internally reporting the behavior that Chiofalo attributed to Cuomo in his initial complaint. Chiofalo filed an amended complaint in April 2013, claiming that the investigation was retaliatory for filing his initial CEPA complaint. The amended complaint, like the initial complaint, alleged that the adverse employment actions he suffered constituted CEPA violations under N.J.S.A. 34:19-3(a) and (c). At oral argument, plaintiff conceded his case now rests on N.J.S.A. 34:19-3(c)(2) alone.
Following the close of discovery, on February 23, 2016, defendants filed a motion for summary judgment, alleging that Chiofalo failed to set forth a prima facie case under CEPA. In relevant part, defendants argued that Cuomo's statements regarding the Civilian Letter and Cetnar Memo, and Chiofalo's response, were too vague to constitute an order to destroy the documents and a refusal; that an order to destroy the Civilian Letter would not have been a violation of "a law, statute, or regulation that has the force of public policy" ...
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