By Jennifer Vorih, Esq., Ty Hyderally, Esq.
What do you do if you want to speed your way down the Garden State Parkway in your high-end sports car way over the speed limit? If you’re NFL running back Brandon Jacobs, you reach out to your friend, a New Jersey State Trooper, and request an escort. What do you do if you are a New Jersey State Trooper and your friend asks you to provide an escort for dozens of fancy sports cars driving 100 MPH down the Parkway? If you are Nadir Nassry, you and your coworker Joseph Ventrella provide the escort…even if it violates policy.
Now for the tricky questions: what do you do if you work for the New Jersey State Police and are responsible for collecting and tracking reports and other paperwork and maintaining personnel files, and you receive a thank you note from a civilian thanking State Troopers Nassry and Ventrella for the escort, and a memo from Major Edward Centra, Deputy Branch Commander of Field Operations expressing his appreciation to Ventrella, after Nassry and Ventrella were suspended pending investigation of the unauthorized escort? If you are Frank Chiofalo, you ask your boss what to do with them.
And if you are Frank Chiofalo, when your old boss is suddenly transferred right after you ask him what to do with these documents, you ask your new boss. And if you are Frank Chiofalo, when your new boss doesn’t give you an answer, you ask him again in another week. And if you are Frank Chiofalo, when your new boss tells you that these documents, this evidence, DOES NOT EXIST, you blow the whistle. You say to that boss, Major Robert Cuomo, that “it does exist,” that it’s actually in your hand, and you do not stop there. You go even further and tell him, “I’m not going to get rid of it.”
After all the above happened, and Cuomo told Chiofalo not to approach him with this evidence again, the New Jersey State Police retaliated against Chiofalo by transferring and demoting him.
Last month, the New Jersey Supreme Court held that the trial court had been correct in denying Defendants’ motion for summary judgment, even though Chiofalo did not “identify a specific law, rule, regulation or public policy that was violated by the alleged acts.” This is a very important victory for New Jersey employees who are faced with the choice of whether to blow the whistle on illegal activity in the workplace.
The NJ Supreme Court opined that “‘criminal’ or ‘fraudulent’ activity is often apparent and commonly recognizable,” which distinguishes CEPA claims brought under section (c)(2) from those brought under sections (c)(1) and (c)(3). The Court cautioned, however, that, “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.” The Court also reaffirmed its earlier holdings that whistleblower employees are not expected to be “lawyers on the spot,” while holding that “the legal underpinnings for claimed behavior that is perceived as criminal or fraudulent should be able to be teased out sufficiently for identification purposes.”
Thus, the Court ruled that despite the fact that Chiofalo could not identify a specific law, rule, or regulation that was violated, he could still move forward with pursuing his whistleblower lawsuit against the New Jersey State Police. A victory for employees in New Jersey indeed!
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