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 D EUTSCH FA MILY 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 E dward 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 NOT FOR PUBLICATION WITHOUT THE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

. " A lthough 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

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PER CURIAM

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

Protection Act 1 (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 t he reasons that follow.

I.

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

light most favorable to plaintiff, who opp osed 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 s old to retailers. As part of this

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

Deutsch i n 2003 as a New Jersey district manager

, and he held this position until

his termination in 2018. His responsibilities included worki ng 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

– 8.3 A

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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 inc reased, 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; man aging 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 p rovide d ince ntives, 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 , how ever, Deutsch could legally

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

for planning, budgeting for, and administering the incentive programs.4 A

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Melia testified at his deposition that Deutsch and its distributors would

agr ee 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, an d 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 perm itted to establish and maintain

incentive programs with them directly. "Dealer

- loader" was a term Deutsch

used to describe the rewards it used to persuade retail ers to purchase its product.

The limit for dealer

- loaders was $300 and the items were raffle d 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 m anagers were responsible for ensuring that each dealer

- loader was in

the book.5 A

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The Business Gift Company (B GC ) was a wholesale distributor of

incentive merchandise and promotional products . BG C supplied merchandise

to Deutsch. The owner of BG C , 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

. Bix on would

invoice whoever placed the order

– either Deutsch or the distributor partner.

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

them . Plaintiff did not have the authority to pay BG C '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

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

violation of Deutsch's code of conduct

. Delafield confirmed in her certification6 A

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that investigations resulted from the complaints. On three occasions the

investigations uncovere d 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 c omplaint, plaintiff alleged t hat he repeatedly disclosed and

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

inducement s directly to retailers

. At his deposition, p laintiff 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 idea s in a " brand book, " and then plaintiff, a sales

mana ger
, 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 BG C that

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

would repeatedly voice his concerns at meetings

.7 A

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In 2010, plaintiff, his former supervisor, and another district manager

collaborated to operate the dealer

- loader pr ogram 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 wa s illegal to do so.

Plaintiff testified that prior to Melia becoming his supervisor, he

complained to his former supervisor, former colleagues, other regional

managers, a s well as company vice presidents about this dealer

- loader parking

lot program . He v oiced concerns that the program would be discovered and that

he feared th e 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

, be cause 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.8 A

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When Melia became plaintiff's supervisor

, he told Melia about the ill egal

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 re sultant 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 recall ed 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 th e

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

improve the company's position in the marketplace . While at the conference,9 A

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Steve Masket, Deutsch's general counsel, asked plaintiff about dealer

- loader

invoices from BG C

. Prior to the conference, Masket had reviewed the invoices

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

Masket questioned plaintiff about why he was storing BG C 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 we re un damaged. After this exchange, p laintiff 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 di d 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 concern s 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, DiCar lo informed the group they needed to find a better way to

manage the programs. Soon after the call, Deutsch eliminated the BG C dealer

loader gift program.10 A

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

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

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

president, J effrey Corbett

, testified at deposition that Deutsch stopped using

BG C 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 beli eved 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

. "11 A

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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 in centive 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 w as 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" sale s 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 one12 A

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of Deutsch's sales territories

. Next

, p laintiff 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 a s a "C+

, " below his o wn 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 a nd dismissed the complaint. The court issued a

written statement of reasons, finding that while plaintiff reasonably believed13 A

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

not constitute "whistle

- blowing activity" under N.J.S.A. 34:1 9

- 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.

P laintiff appeal s
, arguing that the r ecord 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 a ny 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 Deuts c h's counterclaim against plaintiff.14 A

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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 trie r 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 an d 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

em ployers

. . . . " 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

descr ibed in N.J.S.A. 34:19

- 3(c);

(3) an adverse employment action was taken against

him or her; and15 A

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- 19 (4) a causal connection exists between the whistle

blowing 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 reco rd 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

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- 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 certifie d

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 infor med his supervisor, Melia, that he was

"concerned" about the illega l 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."17 A

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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 emplo yees 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 "mer e 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 weigh18 A

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competing testimony

. Rather it had to give plaint iff "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 c ausation 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 company wide

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 p laintiff

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.

Autoto te 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

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

not retain jurisdiction.