SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3955-19

PAUL SERENA,

Plaintiff-Appellant,

v.

W.J. DEUTSCH & SONS, LTD., 

d/b/a DEUTSCH FAMILY WINE & 

SPIRITS, and EDWARD MELIA,

Defendant-Respondents.

______________________________

Argued October 5, 2021 – Decided August 29, 2022

Before Judges Fisher, DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-1968-18.

Edward W. Schroll argued the cause for appellant 

(Castronovo & McKinney, LLC, attorneys; Paul 

Castronovo and Edward W. Schroll, of counsel and on 

the briefs).

Heather R. Boshak argued the cause for respondents 

(Fox Rothschild LLP, attorneys; Heather R. Boshak, of 

counsel and on the brief; Allison L. Hollows, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Plaintiff appeals the trial court's dismissal of his Conscientious Employee 

Protection Act1(CEPA) complaint on summary judgment. The trial court found 

that plaintiff failed to show that his actions constituted whistleblowing under 

N.J.S.A. 34:19-3(a). We reverse and remand for the reasons that follow. 

I.

We discern the facts from the summary judgment record, viewing them in the 

light most favorable to plaintiff, who opposed summary judgment. See Richter v.

Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995)).

Defendant Deutsch was a supplier of wine and spirits in New Jersey.

Deutsch was part of a multi-tier system of alcohol distribution where suppliers 

sold their products to distributors who in turn sold to retailers. As part of this 

system, Deutsch set sales goals for its distributors. Plaintiff was hired by 

Deutsch in 2003 as a New Jersey district manager, and he held this position until 

his termination in 2018. His responsibilities included working with Deutsch's 

distributors to generate sales and improve distribution of Deutsch's products. 

1

 N.J.S.A. 34:19–1 to 34:19–8.
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He would visit retailers to promote Deutsch's products in order to grow their 

market share. 

A central aspect of plaintiff's job was helping his distributors sell Deutsch 

products. To accomplish this, plaintiff would assist the distributors with sales 

pitches to potential and existing retailers in order to generate more sales. When 

distributors' sales increased, their district managers received additional 

compensation. 

Defendant Melia was a Deutsch regional manager, and he became 

plaintiff's supervisor in 2015. Melia's responsibilities included: managing the 

district managers and their distributors; managing product pricing and

inventory; budgets; setting depletion and distribution goals; coaching and 

development of his staff; and monitoring his district managers' progress in 

meeting their sales targets, as established by Deutsch. 

Deutsch provided incentives, including electronics and gift cards, to 

distributors to promote the sale of Deutsch's product to retailers. The incentive 

promotional programs were overseen by regional managers like Melia. It is 

illegal to incentivize directly to retailers, however, Deutsch could legally 

incentivize distributors. Regional managers, such as Melia, were responsible 

for planning, budgeting for, and administering the incentive programs. 
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Melia testified at his deposition that Deutsch and its distributors would 

agree to the sales goals and the corresponding incentives, like money or travel. 

He also testified that the most common incentive used by Deutsch was a cash 

incentive paid through the distributor's payroll. A goal would be agreed upon 

with a distributor, and when the distributor met the goal, the distributor's sales 

managers or sales representatives would earn the incentive. The distributor 

would invoice Deutsch afterwards. Melia testified at his deposition that 

although plaintiff could make recommendations concerning the incentive 

programs, plaintiff could not manage the incentive programs nor directly 

negotiate with the distributor. Those duties belonged to Melia. 

As to retailers, only the distributor was permitted to establish and maintain 

incentive programs with them directly. "Dealer-loader" was a term Deutsch

used to describe the rewards it used to persuade retailers to purchase its product. 

The limit for dealer-loaders was $300 and the items were raffled by the 

retailers to the customers, donated to a charity, or returned to the distributor. 

These programs had to be registered with the State in a "program book." These 

program books were maintained by the distributor and the individual brand 

portfolio managers were responsible for ensuring that each dealer-loader was in 

the book. 
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The Business Gift Company (BGC) was a wholesale distributor of 

incentive merchandise and promotional products. BGC supplied merchandise 

to Deutsch. The owner of BGC, Robert Bixon, testified at his deposition that he 

would work with plaintiff and Melia on brand name incentive merchandise such 

as televisions, computers, printers, golf clubs, and logo products. The 

merchandise was used for Deutsch's dealer-loader programs. Bixon would 

invoice whoever placed the order – either Deutsch or the distributor partner. 

Melia was responsible for approving all of BGC's invoices, and Deutsch paid 

them. Plaintiff did not have the authority to pay BGC's invoices by Deutsch 

without approval from Melia. 

Throughout plaintiff's employment, Deutsch maintained an employee 

handbook. The handbook directed employees to address any questions or 

concerns with their immediate supervisor, or human resources. The employee 

handbook also outlined a code of conduct, which included Deutsch's 

commitment to conducting business in compliance with applicable laws and 

regulations. 

Deutsch's Director of Human Resources, Christina Delafield, certified that 

prior to this incident, employees had reported conduct they believed to be in 

violation of Deutsch's code of conduct. Delafield confirmed in her certification
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that investigations resulted from the complaints. On three occasions the 

investigations uncovered improper activity and the employees who engaged in 

the improper activity were terminated. The employees who reported the 

improper activity were not terminated and two of those employees were 

subsequently promoted. 

In his complaint, plaintiff alleged that he repeatedly disclosed and 

objected to defendants' alleged illegal practices, specifically the use of 

inducements directly to retailers. At his deposition, plaintiff testified that when 

the dealer-loader program began, he would attend group meetings with 

distributors and supervisors to discuss ideas about what dealer-loader items to 

present, such as flat-screen television sets. As a result of these meetings, a brand 

portfolio manager would put ideas in a "brand book," and then plaintiff, a sales 

manager, or a sales representative with a distributor would present it at a sales 

pitch. 

Plaintiff testified that he had concerns from the start of the dealer-loader 

program that it would become "corrupted, as items purchased from BGC that 

were supposed to go to distributors instead went to retailers." He stated that he 

would repeatedly voice his concerns at meetings. 
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In 2010, plaintiff, his former supervisor, and another district manager 

collaborated to operate the dealer-loader program as a "parking lot program." 

This incentive program was conducted without the distributor, and Deutsch 

would provide incentives to retailers directly with no paper trail. Plaintiff 

recorded the incentive items in a computer not owned by Deutsch. He explained 

that the items were paid out of the local marketing budget, and the regional 

manager would submit the invoice to Deutsch's corporate office. The purchased 

items were delivered to his personal residence, although plaintiff testified he 

knew it was illegal to do so. 

Plaintiff testified that prior to Melia becoming his supervisor, he 

complained to his former supervisor, former colleagues, other regional 

managers, as well as company vice presidents about this dealer-loader parking 

lot program. He voiced concerns that the program would be discovered and that 

he feared the State Alcoholic Beverage Commission (ABC) would learn of the 

matter. He stated that they all ignored his concerns. Plaintiff participated in the 

illegal dealer-loader programs, because he feared he would lose his job and 

wanted "to protect [his] lifestyle and [his] income." He began applying to other 

jobs, first in 2010 and again in 2013, but was unsuccessful. 
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When Melia became plaintiff's supervisor, he told Melia about the illegal 

activities, stating, "[Melia], we're going to get arrested one day," or "[w]e're all 

going to wear orange jumpsuits." He testified at deposition that Melia knew 

about these illegal activities, as he had to approve the purchase of the items and 

the resultant invoices. He was concerned about how Melia submitted the 

invoices, because he believed an audit would raise questions about the items 

they were purchasing. Plaintiff never filed any complaint, either to Deutsch 

human resources, or with the ABC. 

Melia testified at his deposition that he did nothing illegal in connection 

with the incentive programs. He said plaintiff did not say anything about the 

alleged illegal activities to him. Melia recalled one conversation with plaintiff 

about incentive items being delivered to his residence and asked plaintiff what 

he was doing with the items, to which plaintiff responded the items were sale 

incentive items that he was distributing to the distributor sale representatives. 

Aside from that one conversation, Melia did not ask plaintiff any further 

questions or take any further action. 

In May 2017, Deutsch held a national sales conference. During the

conference, Deutsch asked attendees to "raise their performance" in order to 

improve the company's position in the marketplace. While at the conference, 
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Steve Masket, Deutsch's general counsel, asked plaintiff about dealer-loader 

invoices from BGC. Prior to the conference, Masket had reviewed the invoices 

and had noticed many electronic items being delivered to plaintiff's residence. 

Masket questioned plaintiff about why he was storing BGC items at home. 

Plaintiff explained the items were being used for distributor incentives, and that 

they were being delivered to his home to ensure the correct items had been 

purchased and were undamaged. After this exchange, plaintiff immediately 

went to Melia and reported to him that Masket asked him about the invoices. 

Plaintiff suggested that Melia immediately report the conversation to Steve 

DiCarlo, a division vice-president. Melia did not do so.

Shortly after the conference, DiCarlo held a conference call that included

plaintiff, Melia, Masket, and Robert Thomas, the New Jersey district manager. 

Plaintiff and Melia both testified that DiCarlo spoke to them about their handling 

of the dealer-loader programs. Plaintiff said that he expressed concerns about 

the dealer-loader program during this conversation, however, during his 

deposition he could not recall what specific concerns he voiced. On the 

conference call, DiCarlo informed the group they needed to find a better way to 

manage the programs. Soon after the call, Deutsch eliminated the BGC dealerloader gift program. 
10 A-3955-19

Plaintiff stated that, after the May 2017 conference, Deutsch decided that 

it was no longer going to use BGC and switched to gift cards for retailer 

incentives, instead of physical items, such as electronics. Deutsch's senior vice 

president, Jeffrey Corbett, testified at deposition that Deutsch stopped using 

BGC because using a third party was not in line with "best practices." 

Plaintiff testified that in October 2017 he argued with Melia about the 

incentive program involving gift cards that were passed along in lieu of the 

electronic dealer-loaders, contending to Melia that this activity was "highly 

visible." Plaintiff believed the gift card program was illegal because it was not 

filed with the State, nor was it in any distributor's program book. He stated that 

when Melia became his supervisor in 2015, he complained to Melia that he did 

not like going "to Staples and buy[ing] so many of them." Plaintiff feared "an 

audit [or] . . . someone above [Melia] in the accounting department . . . inquiring 

. . . why I am going to Staples, OfficeMax, and buying so many of these gift 

cards." Plaintiff testified that he repeatedly complained to Melia, who just 

ignored the complaints saying, "[t]hat is the way we do things." Plaintiff stated 

he was not comfortable engaging in such activities, but that he did it anyway 

because he did not want to be viewed as "insubordinate." 
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Melia testified that plaintiff's performance was "inconsistent" from the 

time he began working with plaintiff. As a result, Melia and DiCarlo put 

plaintiff on a "coaching plan" in May 2017. Specifically, Melia found that 

plaintiff was not:

holding his sales team accountable, he wasn't writing 

smart goals for his team to improve performance in 

their territories, he wanted in on our portfolio, he was 

not organized on his calendar, he didn't manage his time 

well, his communication was inconsistent. There 

would be times when he wouldn't respond for hours or 

even a day. It needed to be very structured. And that's 

how we arrived at that.

Plaintiff testified that after the 2017 conference call with DiCarlo about 

the incentive issue, Melia retaliated by placing him, for the first time in fourteen 

years, on a performance improvement plan (PIP). Plaintiff admitted that 

throughout his employment he was criticized about his time management and 

communication skills, and he was told he needed to perform "more and deliver[] 

more." He insisted that the criticism never led to corrective action against him. 

Plaintiff argued that his performance had been good, pointing to his annual 

raises, his track record of meeting "most" sales goals, and the "outstanding" 

relationships he developed with his accounts.

Plaintiff's 2017 employee evaluation was completed that summer and he 

scored a 1.8, making him the lowest ranked employee out of thirty-three in one 
12 A-3955-19

of Deutsch's sales territories. Next, plaintiff had three meetings with another 

Deutsch vice-president, John Moorehead, in December 2017 as well as March 

and April 2018. As part of the meetings, Moorhead accompanied plaintiff on

account visits. Moorehead testified that the first and third meetings went poorly, 

finding plaintiff "ill-prepared." 

Melia also attended the March sales trip, and he testified that plaintiff "met 

expectations" in terms of job performance. Plaintiff himself graded his April 

performance as a "C+," below his own expectations. 

Shortly after plaintiff's April sales trip with Moorehead, Deutsch 

terminated him. Melia recommended termination, which was approved by the 

company president, among others. According to Melia, Deutsch terminated 

plaintiff because his performance was too inconsistent. 

On June 13, 2018, plaintiff filed a complaint asserting one count of 

retaliation under CEPA. Defendants filed an answer and counterclaim alleging 

conversion and misappropriation, specifically that plaintiff wrongfully retained 

defendants' property after his termination. 

On May 8, 2020, defendants filed a motion for summary judgment. The 

court granted the motion and dismissed the complaint. The court issued a 

written statement of reasons, finding that while plaintiff reasonably believed 
13 A-3955-19

Deutsch was violating a law or clear mandate of public policy, his actions did 

not constitute "whistle-blowing activity" under N.J.S.A. 34:19-3(a). The court 

found plaintiff's termination to be an adverse employment action under the 

statute, but concluded the termination was not actionable without a finding of 

whistleblowing activity. 

Plaintiff appeals, arguing that the record shows genuine issues of material fact 

as to prongs two and four of CEPA, warranting denial of summary judgment.2

II.

We review a grant of summary judgment de novo, using "the same standard

that governs the motion judge's" decision. RSI Bank v. Providence Mut. Fire Ins.

Co., 234 N.J. 459, 472 (2018). Summary judgment will "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)). "An issue of material fact is

'genuine only if, considering the burden of persuasion at trial, the evidence submitted

2

 On June 29, 2020, the parties filed a stipulation of dismissal without prejudice 

of Deutsch's counterclaim against plaintiff. 
14 A-3955-19

by the parties on the motion, together with all legitimate inferences therefrom

favoring the non-moving party, would require submission of the issue to the trier of

fact.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v.

Bhagat, 217 N.J. 22, 38 (2014)). In our review, we owe "no special deference" to

the trial court's legal analysis. RSI Bank, 234 N.J. at 472.

The Legislature designed 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." Abbamont v. Piscataway Twp.

Bd. of Educ., 138 N.J. 405, 431 (1994); see also Allen v. Cape May Cnty., 246 N.J.

275, 289 (2021). CEPA's purpose is "to protect whistleblowers from retaliation by

employers . . . ." Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015). Consistent

with that purpose, CEPA "is considered remedial legislation entitled to liberal

construction." Ibid.

To establish a prima facie claim under CEPA, a plaintiff must demonstrate:

(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);

(3) an adverse employment action was taken against

him or her; and
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(4) a causal connection exists between the whistleblowing activity and the adverse employment action.

[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]

When a plaintiff establishes a prima facie claim under CEPA, the burden of

persuasion shifts to the defendant employer "to rebut the presumption of

discrimination by articulating some legitimate nondiscriminatory reason for the

adverse employment action." Allen, 246 N.J. at 290-91 (quoting Kolb v. Burns, 320

N.J. Super. 467, 478 (App. Div. 1999)). If the employer meets that burden, the

plaintiff then must prove the employer's asserted legitimate reasons were pretextual

and not the real reason for the employer's discriminatory acts. Id. at 291.

III.

Because the motion court grounded its order granting summary judgment in 

its finding that the plaintiff did not engage in protected whistleblowing activity, we 

turn to prong two of CEPA and examine the record in that context. N.J.S.A. 34:19-

3(a) states:

An employer shall not take any retaliatory action 

against an employee because the employee does any of 

the following:

a. Discloses, or threatens to disclose to a supervisor or

to a public body an activity, policy or practice of the

employer, or another employer, with whom there is a

business relationship, that the employee reasonably

believes:
16 A-3955-19

(1) is in violation of a law, or a rule or

regulation promulgated pursuant to law,

including any violation involving

deception of, or misrepresentation to, any

shareholder, investor, client, patient,

customer, employee, former employee,

retiree or pensioner of the employer or any

governmental entity, or, in the case of an

employee who is a licensed or certified

health care professional, reasonably

believes constitutes improper quality of

patient care; or

(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 . . . .

Plaintiff testified that he informed his supervisor, Melia, that he was 

"concerned" about the illegal sales incentives and rewards programs they were 

working on together. He testified that his concern related to: being questioned about 

the unusually large number of cases he kept in the warehouse to service the illegal 

programs; being stopped and pulled over by law enforcement with "fifteen, almost 

twenty cases of wine and spirits" in his vehicle; being required to purchase an 

"enormous amount of gift cards" to hand out to retailers; and being "discovered, 

arrested, losing [his] job, and going to jail." 
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Plaintiff further testified: 

I complained to [Melia] numerous times in the two 

years plus that we worked together. An exact number, I 

do not have. I typically complained to him at a highest 

level when I had something on my expense report that 

was of an illegal nature that was not a legal expense, 

that was not something that I should be doing. I would 

explain to him that he needed to approve it. I told him 

about why. And I would say, 'It is illegal. I don't like 

doing this, but . . .' he would approve it.

CEPA does not require any magic words in communicating an employee’s 

reasonable belief of illegal activity. Beasley v. Passaic Cnty., 377 N.J. Super. 

585, 605-06 (App. Div. 2005). "The object of CEPA is not to make lawyers out 

of conscientious employees but rather to prevent retaliation against those 

employees who object to employer conduct that they reasonably believe to be 

unlawful . . . ." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).

We do not find plaintiff's statements to Melia "mere disagreements." We are

required to take "all legitimate inferences . . . favoring the non-moving party. . . ." 

Grande, 230 N.J. at 24. Because we owe no special deference to the trial court's

legal analysis, RSI Bank, 234 N.J. at 472, we find the issue of whether plaintiff

engaged in whistleblower activity "require[s] submission of the issue to the trier of

fact." Grande, 230 N.J. at 24. It is not the role of the motion court to weigh
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competing testimony. Rather it had to give plaintiff "all reasonable inferences" on

the whistleblower issue and committed reversible error by not doing so.

Having found that a genuine issue of material fact exists on the whistleblower

question, we briefly turn to causation under CEPA. The facts, taken as true, show

plaintiff complained repeatedly about the illegal rewards and incentive programs to

Melia, his direct supervisor, beginning in 2015. After the May 2017 companywide

meeting, plaintiff participated in a conference call about the illegal programs with

Melia included on the call. After that call, Melia began to treat plaintiff poorly, and

placed plaintiff on a PIP for the first time in his fourteen-year career. At Melia's

recommendation, Deutsch terminated plaintiff less than one year after the

conference call. We conclude that the record shows a sufficient nexus between

plaintiff's whistleblower activity and his termination to warrant denial of summary

judgment on the causation issue.

Defendant raises a final issue that warrants brief discussion. While plaintiff

admitted participation in the illegal incentive schemes during his career at Deutsch,

such participation is not a per se bar to recovery in a CEPA claim. See Donofry v.

Autotote Sys., Inc., 350 N.J. Super. 276, 288 (App. Div. 2001). To the extent we 

have not addressed Deutsch's other arguments, we conclude they are without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 
19 A-3955-19

Reversed and remanded for proceedings consistent with this opinion. We do

not retain jurisdiction.