High Court Buoys Whistleblower Rights in Death Race 2012 Case

Colleen O'Dea | July 17, 2019 | More Issues
Win for trooper who claimed retaliation in wake of State Police escort of car club during high-speed parkway run

Credit: Twenty20
Police car
The New Jersey Supreme Court on Tuesday affirmed workers’ rights to protection under the state’s whistleblower law in a case that involved a state trooper and a high-profile, high-speed auto-escort incident dating back more than seven years.

A unanimous court reversed an appeals court ruling in a case involving former State Police Sgt. Frank Chiofalo, who said he faced retaliation partly as a result of the incident that came to be known as Death Race 2012, in which two other troopers had escorted a number of sports car enthusiasts down the Garden State Parkway at speeds that at times reached 100 miles per hour or more. A jury had awarded Chiofalo $455,000 in 2016 in the case.

The two trooper escorts resigned as part of a plea deal in which they admitted falsifying documents as part of a cover-up of the matter and State Police also reassigned three commanders in the fallout.

In their decision, the justices affirmed the importance of the protections offered by New Jersey’s Conscientious Employee Protection Act and indicated that it should not be overly difficult for a worker to prove a case under the law.

The state’s whistleblower law, or CEPA, was enacted in 1986 to “protect and encourage employees to report illegal or unethical workplace activities,” according to the decision. California was the first state to enact whistleblower protections in 1959, according to the National Whistleblower Center. While nearly every state has now adopted some type of law, the protections vary from state to state.

The legal history

The provision of the law cited by Chiofalo prevents an employer from retaliating against an employee who refuses to take an action he believes to be fraudulent, illegal or counter to a mandated public policy.

“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,” wrote the justices. “Indeed, we note that NELA (the National Employment Lawyers Association of New Jersey) had no difficulty identifying statutory and regulatory provisions that pertained in this matter.”

According to the decision, Chiofalo said he was transferred to a less desirable assignment, or a demotion, and was blocked from a promotion to lieutenant as a result of not following a supervisor’s directions.

Chiofalo was the assistant administrative officer in his barracks in April 2012 and received a letter of appreciation one of the sports-car drivers had sent to then-State Police Superintendent Joseph Fuentes about the escort and an internal memo by Major Edward Cetnar, deputy branch commander of field operations, that praised Trooper Joseph Ventrella, one of the escorts. These were meant for Ventrella’s personnel file. The notes had been written before Ventrella and Trooper Nadir Nassry were suspended as a result of their unsanctioned high-speed escort but Chiofalo did not receive them until after the two were suspended.

Chiofalo asked his supervisor, Major Robert Cuomo, what he should do with the documents and he told the court that Cuomo told him, “It does not exist.”

The decision states that Chiofalo said he felt “pretty clear” that Cuomo wanted Chiofalo “to get rid of” the documents, and that in stating he was “not going to get rid” of the documents, Chiofalo was refusing to participate “in a criminal or fraudulent act.”

‘Reasonable’ belief

He also alleged that the retaliation against him resulted from a comment he made in which he accused Cuomo of not reporting his vacation time.

After a trial, a jury did not agree that the comment about vacation time impacted Chiofalo, but it did award him compensatory damages representing lost wages and pension payments and punitive damages related to his refusal to destroy the documents relevant to the car escorts.

The state appealed, saying that Chiofalo had not proven his case and it should not have been allowed to proceed to trial. The Appellate Division agreed, finding that “Chiofalo had failed to identify any law or regulation that he believed Cuomo violated in allegedly ordering Chiofalo to destroy documents,” according to the decision.

But the Supreme Court disagreed. While stating it is preferable to specifically identify a “statutory or other basis for claiming objected-to behavior is criminal or fraudulent,” the justices noted that “’criminal’ or ‘fraudulent’ activity is often apparent and commonly recognizable” and that “the parties were not arguing about whether it was illegal to destroy the documents,” but whether it was reasonable to believe Chiofalo was asked to destroy them. The justices came down on Chiofalo’s side.

The decision only settles one argument, however, as the state has other challenges pending regarding the trial and the amount of the award Chiofalo received. The justices sent the case back to the appellate division to consider those matters.

Chiofalo’s lawyer did not return a request for comment. A spokesman for the state Attorney General’s office said the office is still reviewing the decision.