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. L0049-13.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2349-16T1

Adam Robert Gibbons, Deputy Attorney General, 

argued the cause for appellants/crossrespondents (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 
3 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 crossappeal, 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. 
4 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 
5 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.
6 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.
7 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. 
8 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 
9 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: 
10 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.
11 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 
12 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 
13 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.