1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

Sergeant First Class Frank Chiofalo v. State (A-30-18) (081607)

Argued April 23, 2019 -- Decided July 16, 2019

PER CURIAM

Plaintiff Frank Chiofalo, a then-member of the New Jersey State Police (NJSP), 

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 (collectively, defendants). 

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.

As the Assistant Administrative Officer of Troop B of the NJSP, Chiofalo was

required to log documents that came in and out of headquarters and to collect reports 

from the Troop B commander. Chiofalo alleges he was subjected to adverse employment 

actions as retaliation for his engagement in protected activity related to two incidents.

The first pertained to a claimed refusal to destroy internal NJSP documents. On 

March 20, 2012, a sergeant and a trooper participated in an unsanctioned escort on the 

Garden State Parkway, for which they later became subjects of internal review. A “letter 

of appreciation” from one of the escorted civilians extended thanks for the officers’ help

(the Civilian Letter). On April 18, 2012, Major Edward Cetnar, Deputy Branch 

Commander of Field Operations, sent an internal memorandum (the Cetnar Memo) 

noting that the Civilian Letter had been included in the trooper’s personnel file and 

adding, “[p]lease convey to [the trooper] my appreciation for a job well done.” On April 

23, 2012, the officers were suspended without pay pending investigation into the escort.

On Friday, April 27, 2012, the Civilian Letter and the Cetnar Memo were received 

by Chiofalo, who presented them the following Monday to Major Robert Cuomo, the 

commander of Troop B, and asked what to do with the documents. Cuomo stated he 

would reach out to Cetnar and provide further instructions. The next week, having 

received no instructions, Chiofalo went to Cuomo to discuss what he should do with the 

documents. In his deposition, Chiofalo stated “[Cuomo] said ‘It does not exist,’” to 

which Chiofalo replied, [“I]t does exist I have it in my hand. . . . I’m not going to get rid 

of it.[”] 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.
2

Chiofalo claimed that the second protected activity occurred during an interaction 

with Cuomo in which he accused Cuomo of not reporting his vacation time. 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.

Defendants filed a motion for summary judgment, alleging that Chiofalo failed to 

set forth a prima facie case under CEPA. The court denied the motion. The matter 

proceeded to trial, and a jury awarded Chiofalo compensatory and punitive damages.

Defendants appealed the denial of summary judgment and of the post-trial motions 

they filed. In addition to failure to state a claim, defendants also argued that Chiofalo 

failed to identify a specific law or policy that prohibited Cuomo’s conduct.

The Appellate Division reversed the trial court judgment, stating, with respect to the 

validity of a CEPA claim under N.J.S.A. 34:19-3(c), that a plaintiff must first find and 

enunciate the specific terms of a statute or regulation, or the clear expression of public 

policy, which would be violated if the facts as alleged are true. The appellate court 

concluded that Chiofalo failed to do so and that defendants were entitled to summary 

judgment on that basis. Specific to the timekeeping claim, the Appellate Division added that 

Chiofalo’s statement to Cuomo “was hardly ‘whistleblowing’ as contemplated by CEPA.”

The Court granted Chiofalo’s petition for certification. 236 N.J. 220 (2018). 

Although Chiofalo initially alleged CEPA violations under N.J.S.A. 34:19-3(a) and (c), he 

conceded at oral argument that his case now rests on N.J.S.A. 34:19-3(c)(2) alone.

HELD: The Court does not agree that the trial court erred in refusing to grant defendants 

summary judgment on plaintiff’s CEPA claim related to the alleged refusal to destroy 

documents, but affirms as to the fraudulent timekeeping allegations.

1. CEPA was enacted to cement New Jersey’s commitment to protect and encourage 

employees to report illegal or unethical workplace activities and should be construed 

liberally to effectuate its important social goal. N.J.S.A. 34:19-3 sets forth the statute’s 

essential prohibition of employer retaliation for an employee’s protected activities, which 

are identified in three subsections. Subsection (c)(2) protects employees who “[o]bject[] 

to, or refuse[] to participate in any activity, policy or practice which the employee 

reasonably believes . . . is fraudulent or criminal.” Subsections (c)(1) and (c)(3), 

respectively, protect employees who take similar action with regard to activities, policies, 

or practices they reasonably believe are “in violation of a law, or a rule or regulation 

promulgated pursuant to law” or are “incompatible with a clear mandate of public 

policy.” (pp. 15-17)
3

2. In a seminal case, the Court addressed a plaintiff’s CEPA claims brought under 

N.J.S.A. 34:19-3(c)(1) and (3). Dzwonar v. McDevitt, 177 N.J. 451, 461-69 (2003). 

There, the Court summarized generally what a plaintiff must set forth to establish a prima 

facie case pursuant to N.J.S.A. 34:19-3(c). The Court stated that either “the court or the 

plaintiff” must identify the statute, regulation, rule, or public policy that closely relates to 

the complained-of conduct. Id. at 464 (emphasis added). The identification requirement 

assists trial courts in weeding out those cases that only concern the most trivial or benign 

employee complaints. Importantly, Dzwonar notes that a plaintiff need not “allege facts 

that, if true, actually would violate that statute, rule, or public policy.” Id. at 463. A 

plaintiff is required only to “set forth facts that would support an objectively reasonable 

belief that a violation has occurred.” Id. at 464. (pp. 17-20)

3. While Dzwonar would seem to impose some identification expectation for CEPA 

claims brought under either N.J.S.A. 34:19-3(c)(1), (2), or (3), the Court is unaware of 

any New Jersey court that has explicitly imposed this requirement under subsection 

(c)(2). Only Battaglia v. United Parcel Service, Inc., 214 N.J. 518 (2013), has analyzed 

N.J.S.A. 34:19-3(c)(2) post-Dzwonar, and it does not mention any express or implied 

obligation to identify some legal source rendering activity fraudulent. That said, the 

better practice in CEPA actions brought under (c)(2) surely is to identify the statutory or 

other basis for claiming objected-to behavior is criminal or fraudulent. “Criminal” or 

“fraudulent” activity is often apparent and commonly recognizable, which distinguishes 

(c)(2) claims from those brought under (c)(1) and (3). But the parties and the court need 

to have a common understanding of the legal principle that the plaintiff reasonably 

believed was being violated to enable joinder. And if a defendant questions the source of 

law relied on by the plaintiff, that source should be provided by the plaintiff. (pp. 20-23)

4. At no point during the trial or post-trial motions did defendants here argue that the 

CEPA claim was deficient for plaintiff’s failure to identify a specific law, rule, regulation 

or public policy. It is unfair to reassess the summary judgment record based on 

arguments that were not advanced and that relate to a point the parties appeared to take 

for granted -- namely, that refusal to participate in the destruction of documents would 

support a CEPA claim if plaintiff reasonably believed that the destruction was ordered or 

occurred. The Court therefore reverses the Appellate Division to the extent that it 

vacated the jury award based on the claim as to the destruction of internal documents. 

The Court agrees, however, that Chiofalo’s alleged statement to Cuomo that “[he] take[s] 

[his] time, unlike others” was simply too amorphous to constitute “‘whistleblowing’ as 

contemplated by CEPA.” The Court therefore does not disturb the Appellate Division’s 

judgment with respect to plaintiff’s claim related to timekeeping. (pp. 23-25)

AFFIRMED IN PART and REVERSED IN PART.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.
1

SUPREME COURT OF NEW JERSEY

A-30 September Term 2018

081607

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,1

Defendants-Respondents, 

and

Robert Cuomo and Joseph R. Fuentes,

Defendants.

On certification to the Superior Court, 

Appellate Division.

Argued

April 23, 2019

Decided

July 16, 2019

George T. Daggett argued the cause on behalf of 

appellant (Law Offices of George T. Daggett, attorneys; 

George T. Daggett, on the brief).

 

1

 The caption has been revised to reflect the appropriate agency title.
2

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 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).

PER CURIAM

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.
3

I.

A.

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 (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.
4

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.

1.

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 

 

2 Chiofalo’s retirement actually became effective on July 1, 2013. Despite the 

closeness in time between the alleged adverse employment action and filing 

for retirement, Chiofalo’s retirement is not in issue. He does not allege

constructive discharge.
5

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: 

Forwarded for information and appropriate action

HR: For inclusion in personnel file

C: Col. Fuentes

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 
6

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. 

The following Monday, April 30, 2012, Major Robert Cuomo reported to 

Troop B as Catullo’s replacement. Chiofalo presented Cuomo with the 

Civilian Letter and Cetnar Memo and asked Cuomo for instructions on what to 

do with the documents. Cuomo stated he would reach out to Cetnar and 
7

provide further instructions. The next week, having received no further 

instructions, Chiofalo again went to Cuomo to discuss what he should do with 

the documents. In his deposition, Chiofalo stated,

[Cuomo] said [“]It does not exist.[”] That totally 

caught me off guard, I think I probably froze and just 

stood there and looked at him for a second, but it felt 

like 15 seconds, and I said, [“I]t does exist I have it in 

my hand.[”] I said, [“]I’m not going to get rid of it.[”] 

And he -- he didn’t say much, but he was -- [“]do not 

approach me with it again.[”]

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. 

2.

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] 
8

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.

3.

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. 

B.

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 
9

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” because the “commendation” was unsigned and therefore likely 

automatically generated by NJSP staff; and that Chiofalo had not provided 

evidence to show that his belief that Cuomo was underreporting his time off 

was reasonable. Responding to plaintiff’s argument that CEPA is remedial 

legislation entitled to liberal construction and that the facts must be viewed 

from the perspective of whether plaintiff reasonably believed he was being 

told to destroy documents, defendants argued the following to the trial court:

[Y]es, CEPA by law is to be determined liberally, but 

not unreasonably, Your Honor. What the Court -- what 

the plaintiff is asking here is for this Court to 

unreasonably believe that these innocuous statements 

that are not clear, that are not direct, are intended to 

either destroy a document that the major knows it exists 

because he sent it where it was supposed [to go] and 

that the statement, unlike others, means him, he’s 

keeping false pay records, it doesn’t meet the statute.

Immediately thereafter, the court issued an oral decision denying the 

motion for summary judgment. Responding directly to the argument 

advanced, the court stated that, taking the facts in the light most favorable to 

the plaintiff, “the fact is that the letter came in . . . [a]nd the direction was that 

it doesn’t exist.” The court noted that whether Chiofalo “c[ould] connect it or
10

not connect it at trial is a different question” but that, giving Chiofalo “the 

benefit of the doubt,” it was “at least a disputed issue of fact.” Accordingly,

the court determined that it had “to let [the matter] go to a jury.” Defendants

filed a motion for reconsideration, which the court denied, noting that the 

arguments raised did not differ from those advanced at the initial summary 

judgment motion.

C.

The matter proceeded to trial, and a jury awarded Chiofalo $305,400 in 

compensatory damages3and $150,000 in punitive damages. Defendants filed 

for judgment notwithstanding the verdict pursuant to Rule 4:40-2, for a new 

trial pursuant to Rule 4:49-1, and, in the alternative, remittitur. The trial court 

denied all three motions.

D.

Defendants appealed the denial of summary judgment and the post-trial 

motions.4 They raised a number of issues, including the continued claim that 

 

3

 This total amount was identified in the jury verdict sheets as $5400 in past 

wage loss, $50,000 in future wage loss, and $250,000 in pension loss. 

4 Defendants’ Notice of Appeal referred to only the November 18, 2016 order 

denying their post-verdict motions. However, because their accompanying 

case information statement identified the April 1, 2016 order denying their 

summary judgment motion, and both parties briefed the issue of the denial of 

summary judgment, the Appellate Division reviewed both orders.
11

plaintiff failed to satisfy several elements of a prima facie case for a CEPA 

claim. For the first time, however, defendants also argued, as summarized by 

the Appellate Division, that Chiofalo’s CEPA claims were deficient “because 

he failed to ‘identify a specific law or policy that prohibited . . . Cuomo’s 

conduct.’” (omission in original). Plaintiff’s response contended that it was

“self-evident, that official police records should not be destroyed, and that an 

employee should not be falsifying timesheets.”

In an unpublished opinion, the Appellate Division reversed the trial 

court judgment. The appellate court stated with respect to the validity of a 

CEPA claim under N.J.S.A. 34:19-3(c), “as a threshold matter, [a plaintiff] 

must ‘first find and enunciate the specific terms of a statute or regulation, or 

the clear expression of public policy, which would be violated if the facts as 

alleged are true.’” (quoting Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003)

(emphasis omitted)). Therefore, when the plaintiff fails to do so a “trial court 

can and should enter judgment for a defendant.” (quoting Dzwonar, 177 N.J. 

at 463).

Here, the appellate court determined that Chiofalo failed to identify at 

the summary judgment stage any law or regulation that he believed Cuomo 

violated in allegedly ordering Chiofalo to destroy documents. Nor, in the 

court’s view, did Chiofalo provide legal support for his claim that misreporting 
12

vacation time violates a clear mandate of public policy. On that basis, the 

appellate court concluded that defendants were entitled to summary judgment. 

Specific to the timekeeping claim, the Appellate Division added that 

Chiofalo’s statement to Cuomo about the documentation of vacation time “was 

hardly ‘whistleblowing’ as contemplated by CEPA.”

As a result of those deficiencies, the Appellate Division vacated the 

judgment in favor of Chiofalo and remanded the matter for entry of an order 

dismissing plaintiff’s complaint with prejudice.

We granted Chiofalo’s petition for certification. 236 N.J. 220 (2018). 

We also granted amicus curiae status to the National Employment Lawyers 

Association of New Jersey (NELA).

II.

A.

Chiofalo argues that the Appellate Division erred because it 

misunderstood both the factual record and the specific CEPA provision under 

which he was bringing his claim. He argues that the Appellate Division 

applied the standards for N.J.S.A. 34:19-3(a) to his claim, instead of N.J.S.A. 

34:19-3(c). And, he argues, the Appellate Division erred in holding that he 

was required to identify a specific law or rule, when that statute requires only 

that the plaintiff believe the employer’s action to be fraudulent or criminal. 
13

Moreover, according to Chiofalo, the error was compounded by the Appellate 

Division’s failure to appreciate that the documents Chiofalo reasonably 

believed he had been asked to get rid of -- to destroy -- were not just the 

Civilian Letter but also the Cetnar Memo. The Cetnar Memo -- a high-ranking 

officer’s commendation of Ventrella for his work on the now-controversial 

escort -- could be relevant evidence in future disciplinary or any other related

proceedings involving Ventrella and the NJSP. Chiofalo argues that an 

instruction to destroy it was plainly criminal or fraudulent behavior, as was the 

falsification of timesheets filed by Cuomo.

B.

NELA supports plaintiff’s contention that the Appellate Division erred

in its analysis. NELA specifically disagrees with the appellate court’s 

conclusions about Chiofalo’s claim under N.J.S.A. 34:19-3(c). It also argues

that various statutes, as well as provisions in the administrative code, governed

Cuomo’s alleged request to destroy the Civilian Letter and Cetnar Memo:

N.J.S.A. 47:3-15 to -32 (the New Jersey Destruction of Public Records Law), 

N.J.A.C. 13:92-10.4(b) (requiring the retention of government personnel 

records for specific time periods), and N.J.S.A. 2C:28-6(1) (criminalizing the 

destruction of evidence in a proceeding that the actor believes is about to be 

instituted). NELA acknowledges that Chiofalo did not identify any of those 
14

sources of law, but argues that once a plaintiff alleges wrongdoing it is then 

the court’s responsibility to determine whether the alleged wrongdoing is 

reasonably related to a source of law. In this instance, NELA contends, the 

trial court effectively did that.

C.

Defendants argue that the Appellate Division correctly identified a fatal 

flaw in Chiofalo’s claim: the failure to identify a specific law, rule, regulation 

or public policy that he reasonably believed defendants violated. They argue 

that, contrary to Chiofalo’s assertion, that failure defeats claims brought under 

N.J.S.A. 34:19-3(c) like those brought under other sections of the statute. 

They further reject NELA’s argument that the identification of a source of law 

is a responsibility of the court. Finally, defendants contend that any factual 

mistake by the Appellate Division regarding the documents at issue was 

irrelevant because the nature of the documents was not pertinent to the

Appellate Division’s reasoning.

III.

An appellate court reviews a summary judgment decision by the same 

standard that governs the motion judge’s determination. RSI Bank v. 

Providence Mut. Fire. Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. 
15

Bhagat, 217 N.J. 22, 38 (2014)). In this review of the denial of summary 

judgment, we focus on the arguments of the parties that concentrate on CEPA.

Chapter 105 of the Laws of 1986, otherwise known as CEPA, was 

enacted in the wake of this Court’s opinion in Pierce v. Ortho Pharmaceutical 

Corp., 84 N.J. 58 (1980), to cement this State’s commitment to “protect and 

encourage employees to report illegal or unethical workplace activities.” 

Dzwonar, 177 N.J. at 461 (quoting Abbamont v. Piscataway Twp. Bd. of 

Educ., 138 N.J. 405, 431 (1994)). CEPA ensures that employees are 

“protected from retaliation and employers are deterred from activities that are 

illegal or fraudulent, or otherwise contrary to a clear mandate of public 

policy.” D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007). 

CEPA is a remedial statute, and as such it “should be construed liberally to 

effectuate its important social goal.” Battaglia v. United Parcel Serv., Inc., 

214 N.J. 518, 555 (2013) (quoting Abbamont, 138 N.J. at 431). 

CEPA’s critical substantive provisions are contained in N.J.S.A. 34:19-

3. Section 3 sets forth the statute’s essential prohibition of employer 

retaliation for an employee’s protected activities, which are identified in three 

subsections. Pertinent to this appeal,5 CEPA provides as follows:

 

5

 Subsection (b) is not at issue in this matter. 
16

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:

(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

(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;

. . . .

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, 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 . . . ;
17

(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.

[N.J.S.A. 34:19-3.]

Some of the subsections’ requirements have been subject to judicial 

elaboration. In the seminal Dzwonar case, the Court addressed a plaintiff’s 

CEPA claims brought under N.J.S.A. 34:19-3(c)(1) and (3). 177 N.J. at 461-

69. There, the plaintiff -- a former arbitration officer/representative for a 

union -- filed suit under CEPA alleging that she was terminated in retaliation 

for expressing a reasonable belief that the executive board’s failure to 

adequately inform the general membership of its actions violated the Labor 

Management Reporting and Disclosure Act and the union’s bylaws. Id. at 456. 

The jury found that the defendants had violated CEPA, but the Appellate 

Division set aside the verdict. Ibid. We affirmed the Appellate Division’s 

decision, concluding, as a matter of law, that the plaintiff’s asserted belief that 

her employer’s conduct violated a law or public policy was not objectively 

reasonable. Ibid.
18

First, we summarized generally what a plaintiff must set forth to 

establish a prima facie case pursuant to N.J.S.A. 34:19-3(c). Id. at 462. We 

stated that a plaintiff bears the burden of demonstrating 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; (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 (4) a causal connection exists 

between the whistle-blowing activity and the adverse 

employment action. 

[Ibid. (citing Kolb v. Burns, 320 N.J. Super. 467, 476 

(App. Div. 1999)).]

Then we expanded on how a plaintiff who pursues CEPA claims under 

N.J.S.A. 34:19-3(c)(1) and (3) can satisfy the first prong of a prima face case. 

Ibid. We stated that either “the court or the plaintiff” must identify the statute, 

regulation, rule, or public policy that closely relates to the complained-of 

conduct. Id. at 464 (emphasis added). That identification is important for 

other parts of the analysis, so “when no such law or policy is forthcoming,”

judgment can and should be entered for the defendant. Id. at 463. Satisfaction 

of the identification requirement enables the trial court to “make a threshold 

determination that there is a substantial nexus between the complained-of 

conduct and [the] law or public policy identified by the court or the plaintiff.” 
19

Id. at 464. If the required substantial nexus is not shown, the case should not 

proceed to a jury. See ibid.; see also Hitesman v. Bridgeway, Inc., 218 N.J. 8, 

32-33 (2014) (noting the importance of the identification requirement set forth 

in Dzwonar for “provid[ing] a standard against which the conduct of the 

defendant may be measured”). In short, the identification requirement assists 

trial courts in “distinguish[ing] an employee’s objection to, or reporting of, an 

employer’s illegal or unethical conduct from a routine dispute in the workplace 

regarding the relative merits of internal policies and procedures,” Hitesman,

218 N.J. at 31 (citing Dzwonar, 177 N.J. at 467-69), and thus helps in the 

weeding out of those cases that only “concern[] the most trivial or benign 

employee complaints,” id. at 32 (quoting Estate of Roach v. TRW, Inc., 164 

N.J. 598, 613-14 (2000)).

Importantly, Dzwonar notes that a plaintiff need not “allege facts that, if 

true, actually would violate that statute, rule, or public policy.” 177 N.J. at 

463. A plaintiff is required only to “set forth facts that would support an 

objectively reasonable belief that a violation has occurred.” Id. at 464. The 

statute’s salutary public policy is not furthered by any implied requirement “to 

make lawyers out of conscientious employees”; rather, and more accurately, its 

design is “to prevent retaliation against those employees who object to 
20

employer conduct that they reasonably believe to be unlawful.” Ibid. (quoting 

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

IV.

We begin our analysis in this matter with the principle expressed in the 

Dzwonar decision, that “when a plaintiff brings an action pursuant to N.J.S.A. 

34:19-3(c), the trial court must identify a statute, regulation, rule, or public 

policy that closely relates to the complained-of conduct.” 177 N.J. at 463. 

While that general language would seem to impose some identification 

expectation for CEPA claims brought under either N.J.S.A. 34:19-3(c)(1), (2), 

or (3), we are unaware of any New Jersey court that has explicitly imposed this 

requirement on plaintiffs proceeding under subsection (c)(2).

Only Battaglia, 214 N.J. 518, has analyzed N.J.S.A. 34:19-3(c)(2) postDzwonar. That case involved a claim by a long-time employee that he was 

demoted after complaining about his supervisor’s alleged misuse of corporate 

credit cards, which he referred to at trial as the “fraudulent use” of credit 

cards. Id. at 530. However, the facts at trial revealed that the complaint which

allegedly led to the plaintiff’s demotion was an anonymous letter to human 

resources phrased in only general terms and containing no reference to the 

supervisor’s use of credit cards. Id. at 531, 536.
21

At the close of plaintiff’s case, defendants moved unsuccessfully for 

dismissal for failure to state a prima facie case under N.J.S.A. 34:19-3(c)(2) 

and a verdict was ultimately entered in plaintiff’s favor, which the Appellate 

Division affirmed. Id. at 536-37, 540-42. Our Court engaged in a careful 

examination of the facts after framing the issue as “whether [the] plaintiff 

reasonably believed that the activities surrounding the use of credit cards 

amounted to fraudulent activity as defined by CEPA.” Id. at 557. We stated 

that the focus needed to be “on whether the employee making the complaint 

reasonably believed that the activity was occurring and that it amounted to 

fraud.” Ibid. (citing Roach, 164 N.J. at 613). 

In elaborating, we cautioned that trial courts “must be alert to the 

sufficiency of the factual evidence and to whether the acts complained of could 

support the finding that the complaining employee’s belief was a reasonable 

one,” and “must take care to ensure that the activity complained about meets 

this threshold.” Id. at 558. Those principles “demonstrate that it is critical to 

identify the evidence that an aggrieved employee believes will support the 

CEPA recovery with care and precision.” Id. at 559. As the Court explained, 

“[v]ague and conclusory complaints, complaints about trivial or minor matters, 

or generalized workplace unhappiness” are not protected under CEPA. Ibid.
22

In Battaglia, we did not mention any express or implied obligation to 

identify some legal source rendering activity fraudulent. That was not 

discussed in the opinion; rather, fraud was treated, under the circumstances of 

the case, as something that was readily apparent if factually supported. 

Further, we are aware of no case that requires plaintiff to precisely cite the 

statutory source of perceived criminal activity.

That said, the better practice in CEPA actions brought under (c)(2), or its 

similarly worded counterpart in (a)(2), surely is to identify the statutory or 

other basis for claiming objected-to behavior is criminal or fraudulent. 

Ordinarily, the relevant law or basis should be identified with enough 

specificity to allow the court to connect the facts to the reasonableness of the 

perception, as Dwoznar expects. We acknowledge that “criminal” or

“fraudulent” activity is often apparent and commonly recognizable. That 

distinguishes such claims from CEPA’s references in sections (c)(1) and (3) to 

violations of a more general “law, or a rule or regulation promulgated pursuant 

to law” or of “a clear mandate of public policy,” which can be more obscure. 

But, in a CEPA action, the parties and the court need to have a common 

understanding of the legal principle that the CEPA plaintiff reasonably 

believed was being violated. That enables a true joinder of issues on the 

CEPA claim.
23

We reiterate, however, that we do not expect whistleblower employees 

to be lawyers on the spot; once engaged in the legal process, and with the 

assistance of counsel or careful examination by the court, however, the legal 

underpinnings for claimed behavior that is perceived as criminal or fraudulent 

should be able to be teased out sufficiently for identification purposes. Indeed, 

we note that NELA had no difficulty identifying statutory and regulatory 

provisions that pertained in this matter. That said, we acknowledge that there 

certainly are areas where conduct is so obviously criminal that one need not 

pinpoint a Title 2C provision to avoid dismissal of a CEPA claim. However, 

even in those areas, if a defendant questions the source of law relied on by the 

plaintiff, that source should be provided by the plaintiff.

The latter observation guides us in this matter. At no point during the 

trial or post-trial motions did defendants argue that the CEPA claim was 

deficient for plaintiff’s failure to identify a specific law, rule, regulation or 

public policy that was violated by the alleged acts. More specifically, 

defendants never asked for a criminal code citation to support a claim under 

(c)(2) or some legal citation to support the claim of fraud. 

The transcript of the summary judgment argument before the trial court 

reveals that the parties were not arguing about whether it was illegal to destroy 

the documents. Instead, the argument advanced by the State at the summary 
24

judgment return date was whether there was an order to destroy the documents

and whether there could be a reasonable belief on plaintiff’s part that he had 

been asked to destroy or get rid of documents based on his exchange with 

Cuomo. It is unfair to reassess the summary judgment record based on 

arguments that were not advanced and that relate to a point the parties 

appeared to take for granted -- namely, that refusal to participate in the 

destruction of documents would support a CEPA claim if plaintiff reasonably 

believed that the destruction was ordered or occurred. The trial court’s focus 

was on the facts presented, and on that basis we cannot say that the denial of 

summary judgment with respect to document destruction was in error. We 

therefore reverse the Appellate Division to the extent that it vacated the jury 

award based on plaintiff’s claim that one form of his protected activity was 

that he opposed the destruction of internal documents.

That said, we agree with the Appellate Division that Chiofalo’s alleged 

statement to Cuomo that “[he] take[s] [his] time, unlike others” was simply too 

amorphous to constitute “‘whistleblowing’ as contemplated by CEPA.” See

Battaglia, 214 N.J. at 531, 560 (concluding that a vague letter to human 

resources alleging there were “so many examples [of] poor and unacceptable,

unethical behavior” was not sufficient to “put defendant on notice that plaintiff 

was trying to blow the whistle about credit card fraud” (alteration in original)). 
25

Therefore, we do not disturb the Appellate Division’s judgment with respect to 

plaintiff’s claim related to his alleged protected activity of reporting fraudulent 

timekeeping.

V.

We reverse the judgment of the Appellate Division, which overturned

the denial of summary judgment to defendants on plaintiff’s CEPA claim 

related to the alleged refusal to destroy documents. We affirm the Appellate 

Division’s reversal of summary judgment based on the fraudulent timekeeping

allegations. We remand this matter to the Appellate Division to address

defendants’ remaining challenges to the trial and to the judgment awarded to 

plaintiff.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this 

opinion.