PARSIPPANY-TROY HILLS POLICE CAPTAIN JAMES CARIFI VS. TOWNSHIP OF PARSIPPANY- TROY HILLS (L-2938-11, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2356-17T1

PARSIPPANY-TROY HILLS
POLICE CAPTAIN JAMES CARIFI,

Plaintiff-Appellant,

v.

TOWNSHIP OF PARSIPPANY-
TROY HILLS, GOVERNING BODY
OF THE TOWNSHIP OF
PARSIPPANY-TROY HILLS, AND
FORMER POLICE CHIEF MICHAEL
PECKERMAN,

Defendants-Respondents.
________________________________

Argued February 12, 2020 – Decided December 14, 2020

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-2938-11.

Christopher L. Deininger argued the cause for appellant
(Deininger & Associates, LLP, attorneys; Christopher
L. Deininger, on the briefs).
 Thomas B. Hanrahan argued the cause for respondents
(Hanrahan, Pack, LLC, attorneys; Thomas B.
Hanrahan, Kathy A. Kennedy, and Andy G. Mercado,
on the brief).

The opinion of the court was delivered by

HOFFMAN, J.A.D.

On October 24, 2011, plaintiff James Carifi, then a captain in the

Parsippany-Troy Hills Police Department (the PD), filed a complaint in the Law

Division asserting various causes of action related to his employment. By the

time of trial, only plaintiff's whistleblower claim remained, alleging defendants

violated the Conscientious Employee Protection Act (CEPA).1 Although the

jury found that plaintiff acted in good faith by reporting several activities to

superiors between 2009 and 2011, and that he had an "objectively reasonable

belief" the activities involved an actual or potential violation of law or public

policy, the jury found that plaintiff did not prove that defendants retaliated

against him for making these reports. As a result, the trial judge entered a

judgment of no cause in favor of defendants and dismissed plaintiff's complaint.

Plaintiff now appeals from the no cause jury verdict and the order denying

his motion for a new trial. Plaintiff contends the trial judge committed multiple

1
N.J.S.A. 34:19-1 to -14.

A-2356-17T1
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trial errors, including providing an improper response to a critical question

submitted by the jury during deliberations. Plaintiff also challenges seventeen

other trial court rulings. For the reasons that follow, we reverse and remand for

a new trial.

I.

We begin by summarizing the most pertinent trial evidence. As noted,

when plaintiff filed suit in 2011,2 he was a captain in the PD. His complaint

named two defendants, the Township of Parsippany-Troy Hills (the Township)

and the PD's former chief of police, Michael Peckerman, who retired in August

2011. In January 2009, when he held the rank of lieutenant, plaintiff was

assigned to the PD's Planning and Research Section of the Support Services

2
This action (Carifi I) was the first of three lawsuits involving plaintiff and the
Township. In Carifi II, filed in October 2013, the Township sued plaintiff for
breach of contract, Township of Parsippany-Troy Hills v. Carifi, No. MRS-L-
2604-13; in that suit, the Township alleged plaintiff wrongfully refused to repay
the tuition for his graduate degree, after he did not remain employed as an officer
for two years after receiving his degree. Carifi II settled before trial. On
December 26, 2014, plaintiff filed suit in Carifi v. Barberio, Inglesino, et al.,
MRS-L-3140-14 (Carifi III); in that action, plaintiff alleged tortious conduct
against the Township, and four other defendants. On August 28, 2017, the Law
Division granted dismissal motions filed by each defendant, after determining
plaintiff's complaint failed to state a claim upon which relief could be granted.
Plaintiff then appealed the dismissal of Carifi III (A-0597-17); in a separate
opinion issued simultaneously with this opinion, we affirm the dismissal of
Carifi III.

A-2356-17T1
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Division. In May 2009, Captain Edward Jasiecki became plaintiff's superior.

The record indicates that the upper level of the chain of command within the PD

consists of the chief, deputy chief, and then four captains beneath them.

On September 2, 2009, Captain Jasiecki lodged an Internal Affairs (IA)3

complaint against plaintiff, alleging criminal official misconduct, under

N.J.S.A. 2C:30-2.4 According to the complaint, plaintiff violated the PD's

3
When asked about his first involvement in the IA process after joining the
Parsippany PD in 1992, plaintiff recounted, "I was a witness against fellow
officers who had assaulted a juvenile and I testified truthfully against them."
4
N.J.S.A. 2C:30-2 provides:

A public servant is guilty of official misconduct when,
with purpose to obtain a benefit for himself or another
or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but
constituting an unauthorized exercise of his official
functions, knowing that such act is unauthorized or he
is committing such act in an unauthorized manner; or

b. He knowingly refrains from performing a duty which
is imposed upon him by law or is clearly inherent in the
nature of his office.

Official misconduct is a crime of the second degree. If
the benefit obtained or sought to be obtained, or of
which another is deprived or sought to be deprived, is
of a value of $200.00 or less, the offense of official
misconduct is a crime of the third degree.

A-2356-17T1
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"Rules & Regulation/Policy & Procedure," which involved allegations of a "road

job policy violation" 5 by improperly adjusting the schedule of two subordinates,

Sergeant Yvonne Christiano and Patrolman Earl Kinsey. This complaint

resulted in an investigation, designated IA 09-32.

Upon receipt of the complaint, Chief Peckerman and Captain Jasiecki

transferred plaintiff to the Records Section of the Support Services Division, 6

telling plaintiff they did not want him to remain in charge of Sergeant Christiano

and Patrolman Kinsey during the investigation of IA 09-32.7 Plaintiff's job

duties were also reduced. In addition, the PD referred IA 09-32 to the Morris

County Prosecutor's Office (MCPO) for a criminal review. In a letter dated

October 5, 2009, the MCPO returned the complaint to the PD "for the

commencement of an administrative investigation." The letter further advised

that "this Office will close its file and take no further action."

On September 8, 2009, during the time of his reassignment to the Records

Section, plaintiff reviewed paperwork generated by the Township's Animal

5
Plaintiff described a "road job" as an off-duty job performed for a contractor.
6
The transfer did not require plaintiff to move to a different office.
7
Notwithstanding the fact that Captain Jasiecki signed the IA complaint against
plaintiff, he remained plaintiff's supervisor.
A-2356-17T1
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Control Division, including its overtime sheets. During this review, plaintiff

noted that certain animal control employees appeared to engage in "double

dipping," by seeking compensation twice for the same hours, through

compensatory time and overtime. Plaintiff further noted that some paperwork

included entries for time worked through September 12, 2009, even though it

was only September 8, 2009. As a result, plaintiff contacted the Animal Control

Division and spoke to its supervisor, who explained that submitting timesheets

to receive both compensatory time and overtime – and submitting time in

advance – resulted from an "agreement" put in place by previous supervisors.

Following this exchange, plaintiff sent a memo to Chief Peckerman and

Captain Jasiecki on September 9, 2009, attaching the timesheets as evidence of

"this apparent ongoing practice" of double dipping. Plaintiff expressed "serious

concerns" with the supervisor's explanation for these payroll practices and noted

that, in the past, the PD "had considered [such practices] an act of 'Official

Misconduct' and conducted an [IA] investigation." Plaintiff's memo also noted

that submitting time sheets in advance could become "a problem, should an

employee get injured, be sick, be late, use a vacation day, etc." Plaintiff hand-

delivered this memo to Captain Jasiecki's office.

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 On January 19, 2010, then-Captain Paul Philipps completed the

investigation of IA 09-32, culminating in a finding of "not sustained." As a

result, plaintiff returned to his previous position in the Research and Planning

Division, but not until April 2010. According to plaintiff, then-Captain Philipps,

deliberately "dragged his feet" in completing the probe and delayed informing

him that the MCPO concluded the incident was not a criminal offense. At trial,

then-Chief Philipps disputed plaintiff's claim, testifying that he was busy with

multiple internal affairs investigations and had difficulty arranging all the

necessary interviews.

Plaintiff recounted that he felt humiliated and embarrassed as a result of

his initial transfer to the Records Section. He also said he used approximately

thirty vacation days during the time of his transfer, "specifically to be away from

the [PD] just to deal with the stress" involved with the investigation of IA 09-

32. Plaintiff further testified he was scheduled to attend grant-writing training

in October 2009, but was denied that opportunity.

In December 2009, plaintiff filed an IA complaint against Captain

Jasiecki, logged as IA 09-48, alleging a violation of PD rules and regulations.

Plaintiff filed this complaint after he found a document that contained

disparaging information about him, including a claim that he was about to

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receive a promotion because of "his hard work" in a political campaign. Plaintiff

found the document – essentially an anonymous press release – in a PD copy

machine, after it had been faxed to various news outlets. The document urged

the outlets to "look into the following information from the Parsippany [PD]."

It was quickly determined that Captain Jasiecki prepared the document ,

which began with a discussion of a "recently conducted audit of the Parsippany

[PD]," even though the "report has not been made public." Captain Jasiecki

wrote that the audit "shows that the Parsippany [PD] is a top heavy organization

. . . . [that] does not need any additional Captains[.]" He then made the following

remarks concerning plaintiff:

Newly elected Mayor James Barberio had been
promising several police officers that they would be
receiving political favors in the form of promotion for
them assisting him in his campaign. One officer in
particular, Lieutenant James Carifi, has been walking
around the police department telling everyone that the
new mayor promised to promote him to Captain during
the first two weeks of him taking office. Lieutenant
Carifi stated that Barberio told him that he would be
promoted due to his hard work -- due to the hard work
he put in in hanging campaign signs and doing door-to-
door for him. This stinks.

Following an IA investigation, on January 5, 2010, the charges against

Captain Jasiecki were sustained, with a resulting ten-day suspension without

pay; however, plaintiff testified that Captain Jasiecki never served this

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suspension,8 nor was he ever transferred before, during, or after the

investigation.

On May 26, 2010, plaintiff sent a memo to Captain Michael Kennedy, his

division supervisor, notifying him of an issue with Sergeant Thomas Carney's

payment request for Patrolman Kinsey's attendance at a class. Plaintiff asserted

that Patrolman Kinsey did not follow the chain of command in making his

request; in addition, he sought compensatory time for a day he normally worked,

while also being out on family leave.

On July 19, 2010, IA commenced investigation of a new case, logged as

IA 10-15, following a complaint lodged against plaintiff by Sergeant Christiano

and Patrolman Kinsey; in their complaint, they alleged that plaintiff harassed

and retaliated against them for acting as witnesses against plaintiff in the

investigation of IA 09-32. During the investigation of IA 10-15, plaintiff was

again transferred to the Records Section; in addition, this time he was ordered

to relocate to a different office during the pendency of the investigation.

8
Captain Jasiecki disputed the claim that he never served his suspension,
testifying that Chief Peckerman agreed that he could serve his suspension one
day at a time, which he spread out over "[ten] pay periods."

A-2356-17T1
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 Before the investigation of IA 10-15 began, plaintiff had been scheduled

to work an event, National Night Out, 9 in August 2010, with Patrolman Kinsey.

This changed, however, when Captain Kennedy removed plaintiff from the

schedule, thus depriving him of overtime pay for working this event. Plaintiff

testified he again took time off during the investigation of IA 10-15 to deal with

stress.

On August 31, 2010, the investigation of IA 10-15 concluded in a

disposition of "not sustained and exonerated." On August 1, 2010, Captain

Kennedy retired and, as the next highest-ranking officer in the division, plaintiff

assumed command as acting captain. After thirty days in this position, plaintiff

testified he should have received captain's pay, pursuant to his employment

contract. When this did not occur, plaintiff raised the issue with Chief

Peckerman, and then "eventually" received acting captain's pay.

As a division commander, plaintiff also expected to have access to the

division commander's vehicle that he could take home, the same as the other

division commanders. On September 13, 2010, plaintiff sent Chief Peckerman

an e-mail, asking if he had access to a vehicle and received a one-word response,

9
During National Night Out, various organizations and law enforcement
agencies jointly hold an event that allows citizens to learn about their services.
A-2356-17T1
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"No," without further explanation. This issue resolved in October 2010, when

plaintiff began receiving the same vehicle access as other division commanders.

On January 4, 2011, plaintiff served a notice of tort claim upon the

Township, pursuant to the New Jersey Tort Claims Act.10 In the notice, plaintiff

alleged, "Captain Jasiecki has a pattern of making false allegations against me."

Plaintiff provided a list of these "false allegations" in six single-spaced,

typewritten pages.

The following month, at a staff meeting on February 3, 2011, plaintiff

informed Deputy Chief Anthony DeZenzo, Captain Philipps, and Chief

Peckerman's secretary that thirteen of the department's forty-three laptops "were

missing," without explanation. Plaintiff expressed concern the missing laptops

had been stolen. Notwithstanding his report of this problem, plaintiff testified

he never learned of any follow-up investigation regarding the thirteen missing

laptops nor did anyone ever contact him about the matter.

On May 25, 2011, an anonymous caller, who identified himself as

"Kevin," lodged an IA complaint against plaintiff, accusing him of

10
N.J.S.A. 59:1-1 to 12-3.

A-2356-17T1
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"campaigning for his brother"11 while in uniform and on-duty. This complaint

was logged as IA 2011-09, which proceeded as an administrative investigation.

Then-Lt. Andrew Miller12 received this initial report from Kevin and

completed the subsequent investigation. Kevin made various allegations against

plaintiff, including personally witnessing plaintiff, while in uniform and on -

duty, asking movie theater employees if they were registered to vote and stating

that they should vote for his brother in the upcoming council election. Kevin

also alleged that plaintiff "is using his position as the PD's Citizen Police

Academy (the CPA)13 coordinator to call former attendees . . . to encourage them

to vote for his brother and/or provide them with absentee ballots" that he would

complete on their behalf. Additionally, "Kevin" accused plaintiff of improperly

11
At the time, Paul Carifi, Jr., plaintiff's brother, was running for Parsippany
Council.
12
By the time of his trial testimony in September 2017, Andrew Miller held the
rank of captain and was the commander of the PD's Investigative Division,
which included the IA Section, a position he held the previous two and a half
years. In 2007, he was first assigned to the Investigative Division, where he
began conducting confidential investigations, as a detective sergeant. He was
promoted to lieutenant in 2011 and captain in 2013.
13
The PD's website previously described the CPA as a free ten-week program
that provides "an in-depth view into various areas of law enforcement such as
criminal investigations, firearms, use of force, officer safety, motor vehicle
stops, and advancement in technology utilized in law enforcement today."
http://www.parpolice.com/ (visited on May 28, 2019).
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using his PD computer to obtain resident contact information and of "strong-

arming" some local business owners to remove campaign signs of his brother's

opponents and replace them with his brother's signs.

On August 2, 2011, then-Lt. Miller completed the IA investigation of Case

# 2011-09, with a recommended disposition that the allegations of "conducting

political activity on-duty/personal use of department property" were

"unfounded." Chief Peckerman accepted the recommendation and entered an

"unfounded" disposition the same day.

On July 1, 2011, plaintiff wrote a memo advising Deputy Chief DeZenzo

that he "strongly disagree[d]" that an applicant for a school crossing guard

position should be hired, in light of a previous larceny conviction. Plaintiff

personally discussed his concerns with Deputy Chief DeZenzo, who told

plaintiff to "leave it alone." Plaintiff testified that he later found out that the

applicant was related to the Township's council president. That applicant was

eventually hired as a crossing guard.

On June 5, 2012, plaintiff wrote a memo to then-Chief DeZenzo and

delivered it to his secretary, asking the Township to request the scheduling of a

civil service examination for the deputy chief position. Plaintiff's memo

explained that the Township needed to request the examination prior to July 1,

A-2356-17T1
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2012, in order to hold the test that year. In a follow-up e-mail to then-Deputy

Chief Philipps on July 17, 2012, plaintiff asked if the Township called for a

deputy chief exam, pursuant to his request. Then-Deputy Chief Philipps

responded, stating "this is the first time I have seen [your request] . . . but I will

look into it." One week later, he sent plaintiff an email advising that a deputy

chief's examination had not been requested.

At that point, plaintiff went to Chief DeZenzo's office and requested a

copy of the memo he submitted on June 5, 2012. The Chief's secretary provided

plaintiff a copy of his memo, which contained the initials of then-Deputy Chief

Philipps next to a date of June 7, 2012. Upon seeing this, plaintiff testified, "I

was angry," since the initials of then-Deputy Chief Philipps on plaintiff's memo

directly contradicted his claim that he first saw plaintiff's request on July 17,

2012. Plaintiff testified that the Township's failure to call for a deputy chief

exam denied him "[t]he right to be promoted to deputy chief."

At trial, plaintiff contended he engaged in the following protected acts:

sending the memo questioning Animal Control's payroll practices; sending the

memo identifying concerns about Ptlm. Kinsey's payment requests while on

family leave; reporting the missing laptop computers; filing the notice of tort

claim; and sending the memo regarding the record of the crossing guard.

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 Plaintiff asserted the Township retaliated against him for these protected

acts, with the following actions: delayed investigation of IA 09-32; transferred

plaintiff without job duties; delayed returning plaintiff to his prior position after

the investigation of IA 09-32 was not sustained; removed plaintiff from the

grant-writing training program; commenced investigation of IA Case 10-15

against plaintiff and again transferring him; removed plaintiff from the National

Night Out work detail; delayed providing plaintiff with a division commander's

vehicle; and failed to timely call for a deputy chief's civil service examination.

Plaintiff also claimed he received disparate treatment, citing the non-transfer of

Captain Jasiecki during the investigation of IA 09-48, and after it was sustained,

as further evidence of retaliation.

During deliberations, the jury forwarded a question to the trial judge

concerning question three on the verdict sheet, which asked, "Do you find that

[p]laintiff James Carifi has proven by a preponderance of the evidence that

[d]efendant Township of Parsippany-Troy Hills engaged in retaliation against

[p]laintiff because of his protected activities . . . ?" Specifically, the jury asked,

"Who/what does defendant, Township of Parsippany-Troy Hills include?" 14

14
After first reading the jury's question to herself, the judge told counsel, "I
knew this was going to be a question. I'm not surprised at the question. I don't
think you will be either, gentlemen."
A-2356-17T1
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 Plaintiff's counsel argued that the judge should respond that the Township

includes the "upper-level people at the [PD]." The judge responded that in this

particular form of government, the Township can act through the mayor.

Plaintiff's counsel replied that, in this context, the actions occurred within the

PD, and, therefore, the Township included "the people in charge" of the PD.

Defense counsel argued that plaintiff was trying to impose vicarious liability on

the Township for the actions of its employees, which he asserted was "contrary

to case law" since this was "not a negligence case."

Despite the judge's acknowledgment that she anticipated that this question

was going to come up, the judge ruled that she "was not going to determine

vicarious liability in this case." She then provided the jury with the following

limited response:

There are two defendants in this case, former-Chief
Michael Peckerman, personally, and the Township of
Parsippany-Troy Hills, which is the municipality of
Parsippany-Troy Hills. Okay. That's the answer to
your question.

In a post-trial certification, plaintiff's counsel claimed "the [j]ury seemed

confused" by the judge's response.

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 A short time later, the jury returned its verdict.15 The jury first returned a

6-0 verdict finding that plaintiff proved by a preponderance of the evidence that

he held an objectively reasonable belief that the following activities or practices

involved an actual or potential violation or public policy:

• The activities or practices raised in plaintiff's Animal Control memo
of September 9, 2009.

• The activities or practices raised in plaintiff's notice of tort claim.

• The activities or practices raised in plaintiff's school crossing guard
memo of July 1, 2011.16

The jury next returned a 6-0 verdict finding that plaintiff proved by

preponderance of the evidence that he disclosed or threatened to disclose to

defendants one or more of the activities or practices that involved an actual or

potential violation or public policy.

Critical to this appeal, the jury then returned a 6-0 verdict finding that

plaintiff failed to prove by a preponderance of the evidence that either the

15
The judge provided her response to the jury's question in open court at 3:55
p.m. Shortly thereafter, the jurors informed the judge that they had reached a
verdict.
16
The jury found that plaintiff's two other reports of suspected unlawful
activities – the thirteen missing laptop computers and the request of Officer
Kinsey for compensatory time for a day he normally worked, despite being out
on family leave – did not involve an actual or potential violation or public policy.

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Township or Chief Peckerman engaged in retaliation against plaintiff because

of his protected activities, resulting in a no cause verdict. Plaintiff filed a motion

for a new trial, which the trial judge denied on December 27, 2017.

This appeal followed.

II.

Elements of a CEPA Claim

CEPA prohibits an employer from taking "retaliatory action" against an

employee for protected whistleblower conduct. N.J.S.A. 34:19-3. To establish

a prima face case under CEPA, a plaintiff must prove four elements: 1) the

plaintiff reasonably believed that the employer's conduct violated "either a law,

rule, or regulation promulgated pursuant to law, or a clear mandate of public

policy"; 2) the plaintiff "performed a 'whistle-blowing' activity"; 3) the plaintiff

experienced an adverse employment action; and 4) "a causal connection exists

between the whistle-blowing activity and the adverse employment action."

Yurick v. State, 184 N.J. 70, 78 (2005) (citation and internal quotation marks

omitted).

CEPA prohibits an employer from taking 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

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 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 . . . ; or

(2) is fraudulent or criminal, including any activity,
policy or practice of deception or misrepresentation
...;

....

or

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 . . . ;

(2) is fraudulent or criminal, including any activity,
policy or practice of deception or misrepresentation
. . . ; 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.]

"Retaliatory action" is defined as "the discharge, suspension or demotion

of an employee, or other adverse employment action taken against an employee

in the terms and conditions of employment." N.J.S.A. 34:19-2(e).

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 What constitutes an "adverse employment action" must
be viewed in light of the broad remedial purpose of
CEPA, and our charge to liberally construe the statute
to deter workplace reprisals against an employee
speaking out against a company's illicit or unethical
activities. Cast in that light, an "adverse employment
action" is taken against an employee engaged in
protected activity when an employer targets him for
reprisals [.]

[Donelson v. DuPont Chambers Works, 206 N.J. 243,
257-58 (2011).]

In addition to facts supporting whistleblower conduct, an employee who

claims retaliation under N.J.S.A. 34:19-3 must demonstrate "a causal connection

exists between the whistle-blowing activity and the adverse employment

action." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The causal connection

"can be satisfied by inferences that the trier of fact may reasonably draw based

on circumstances surrounding the employment action." Maimone v. Atl. City,

188 N.J. 221, 237 (2006).

"CEPA is a remedial statute that 'promotes a strong public policy of the

State' and 'therefore should be construed liberally to effectuate its important

social goal.'" Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013)

(quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)).

That social goal is "to 'protect and encourage employees to report illegal or

unethical workplace activities and to discourage public and private sector

A-2356-17T1
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employers from engaging in such conduct.'" Dzwonar, 177 N.J. at 461 (quoting

Abbamont, 138 N.J. at 431). Thus, CEPA "shields an employee who objects to,

or reports, employer conduct that the employee reasonably believes to

contravene the legal and ethical standards that govern the employer's activities."

Hitesman v. Bridgeway, Inc., 218 N.J. 8, 27 (2014).

A CEPA plaintiff need not show that the employer actually violated the

law, only that the plaintiff reasonably believed that the employer was violating

a law or a clear mandate of public policy. Dzwonar, 177 N.J. at 462. CEPA is

not intended to "make lawyers out of conscientious employees." FOP v. City of

Camden, 842 F.3d 231, 240 (3d Cir. 2016).

Vicarious Liability Under CEPA

CEPA defines "employer" as "any individual, partnership, association,

corporation or any person or group of persons acting directly or indirectly on

behalf of or in the interest of an employer with the employer's consent[.]"

N.J.S.A. 34:19-2(a). A "supervisor" is "any individual with an employer's

organization who has the authority to direct and control the work performance

of the affected employee, who has authority to take corrective action regarding

the violation of the law, rule or regulation of which the employee complains [.]"

N.J.S.A. 34:19-2(d).

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 In Higgins v. Pascack Valley Hospital, 158 N.J. 404 (2000), our Supreme

Court examined the issue of whether CEPA "imposes liability on an employer

for retaliating against a complaining employee when the employer was not

complicit in the conduct of co-employees about which the employee

complained." Id. at 409. The Court held that illegal activity of co-employees

falls within subsection N.J.S.A. 34:19-3(c), which does not contain a

requirement the conduct be "by the employer." Id. at 424-25.

In Higgins, the plaintiff complained to her supervisor about two

coworkers and alleged that her employer retaliated against her by temporarily

transferring her to another location, reducing her work hours, and denying her a

promotion. Id. at 408-09. The Court held that CEPA "protects an employee

who, with a reasonable basis, complains to his or her employer about the

misconduct of co-employees, even in the absence of employer complicity in the

misconduct." Id. at 410.

In Abbamont, the plaintiff alleged that his employer, a school board,

retaliated against him through its supervisory employees by not rehiring him as

a tenured teacher after he had complained about inadequate conditions in the

school's metal shop. 138 N.J. at 410. Rejecting the board's argument that it was

not vicariously liable for the actions of its school officials, the Court held that

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the same "standards governing employer liability" in Law Against

Discrimination 17 (LAD) cases shall apply in CEPA cases as well; that is, "to

fulfill the remedial purposes of CEPA, employers should be strictly liable for

equitable relief in the nature of reinstatement, restoration of back pay and the

like." Id. at 417-18. The Court concluded that the plaintiff's evidence

established a basis for the board's vicarious liability to plaintiff for

compensatory damages under CEPA as a result of the actions of supervisory

employees, the board's superintendent and principal. Id. at 425.

Jury Instructions

It is well-established that appropriate and proper jury charges are essential

to a fair trial. Washington v. Perez, 219 N.J. 338, 350-51 (2014). Juries are

"entitled to an explanation of the applicable legal principles and how they are to

be applied in light of the parties' contentions and the evidence produced in the

case." Id. at 351 (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)).

"Without a proper jury charge, a jury will not have a proper road map to guide

them in their deliberations." Piech v. Layendecker, 456 N.J. Super. 367, 376

(App. Div. 2018) (citing Das v. Thani, 171 N.J. 518, 527 (2002)). The trial

judge has an "independent duty . . . to ensure that the jurors receive accurate

17
N.J.S.A. 10:5-1 to -49.
A-2356-17T1
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instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party." State v.

Reddish, 181 N.J. 553, 613 (2004) (quoting State v. Thompson, 59 N.J. 396, 411

(1971)).

"Appellate review of a challenged jury instruction entails not only scrutiny

of the charge itself, but an inquiry as to whether an erroneous charge may have

affected the trial's result." Washington, 219 N.J. at 351. Additionally, the

reviewing court must "examine the charge as a whole, rather than focus on

individual errors in isolation." Ibid. (quoting Viscik, 173 N.J. at 18). Generally,

we will not reverse "if an erroneous jury instruction was incapable of producing

an unjust result or prejudicing substantial rights." Ibid. (quoting Mandal v. Port

Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App. Div. 2013)). However,

"erroneous instructions on material points are presumed to be reversible error."

Ibid. (quoting McClelland v. Tucker, 273 N.J. Super. 410, 417 (App. Div.

1994)).

During civil trials, the court "should give an instruction that appropriately

guides the jury on the legal basis of a plaintiff's claim or a defendant's

affirmative defense, so long as there is a reasonable factual basis in the evidence

to support that claim or defense." Walker v. Costco Wholesale Warehouse, 445

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N.J. Super. 111, 120 (App. Div. 2016). "Jury charges 'must outline the function

of the jury, set forth the issues, correctly state the applicable law in

understandable language, and plainly spell out how the jury should apply the

legal principles to the facts as it may find them . . . .'" Velazquez ex rel.

Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel

Braen, Inc., 47 N.J. 586, 591-92 (1996)).

III.

On appeal, plaintiff argues that the trial judge effectively declined to

answer the jury's question inquiring "who or what does [the Township] include,"

resulting in harmful error that warrants a new trial. We agree.

Upon request for clarification from the jury, "the trial judge is obligated

to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.

1984); see also State v.Savage, 172 N.J. 374, 394 (2002). A clear and accurate

answer "ordinarily requires explanation beyond rereading the original charge."

Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2021);

see also Patton v. Amblo, 314 N.J. Super. 1, 9-10 (App. Div. 1998). However,

minor inaccuracies in the judge's response will be disregarded unless they "have

the capacity to mislead the jury" or are "clearly capable of leading the jury to an

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25
unjust result." Velazquez v. Jiminez, 336 N.J. Super. 10, 39-40 (App. Div.

2000), aff'd, 172 N.J. 240 (2002).

"An appropriate judicial response requires the judge to read the question

with care to determine precisely what help is needed." State v. Parsons, 270

N.J. Super. 213, 221 (App. Div. 1994). From the trial judge's comments to

counsel, she not only precisely determined what help was needed, she

anticipated it. Notwithstanding her acknowledgment that she "knew this was

going to be a question," the judge then inexplicably declined to provide the help

that was clearly needed when she failed to inform the jurors as to "who/what

does defendant, Township of Parsippany-Troy Hills include?" Rather than

answer the question informatively, the judge did nothing to clear the confusion

reflected in the jury's question; instead, by simply telling the jury, "There are

two defendants in this case," and then naming them, the judge's response likely

added to the jury's confusion. 18

We are convinced the judge's response had capacity to mislead the jury

and was clearly capable of leading the jury to an unjust result. Based upon our

18
An appropriate response would have informed the jury that, in this case, the
Township includes the supervisory employees within the Parsippany Police
Department; from the trial testimony, the supervisory employees would include
the police chief, the deputy chief, and the four captains underneath them.
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review of the trial record, if properly instructed, a reasonable jury could have

found that upper-level supervisory personnel within the PD retaliated against

defendant for engaging in protected whistleblower activities. Notwithstanding

the jury's finding that plaintiff did not prove that Chief Peckerman engaged in

retaliatory conduct, plaintiff presented substantial evidence that would support

a determination that other supervisory employees in the PD – the deputy chief

and one or more captains – engaged in retaliatory action against plaintiff,

including subjecting him to stressful IA probes that lacked merit, with resulting

embarrassment, inconvenience, and loss of income.

In addition, we note that charges against Captain Jasiecki were sustained

for engaging in wrongful conduct which targeted plaintiff, at a time when

plaintiff was assigned to his command; in addition, this occurred after Captain

Jasiecki had lodged charges against plaintiff in an IA complaint, which were

investigated and not sustained. Plaintiff also presented evidence that then-

Deputy Chief Philipps, who later became chief, deliberately failed to schedule a

deputy chief test in 2012, notwithstanding plaintiff's specific request. Rather

than deny the request, then-Capt. Philipps told plaintiff he never saw the request.

Plaintiff presented compelling evidence that this response was clearly incorrect

and constituted either a careless misstatement or a deliberate lie. Moreover, we

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are satisfied that all the alleged retaliatory actions were within the scope of the

authority of the PD's upper-level supervisors.

From our review of the entire trial record, we are satisfied the judge's

inadequate response to the jury's question had the capacity to mislead the jury

and was clearly capable of leading the jury to an unjust result. Since the jury

only asked clarification as to the Township, we see no reason to disturb the

verdict in favor of former Chief Peckerman.

In light of our determination that the trial judge's failure to properly

respond to the jury's question entitles plaintiff to a new trial against the

Township, we decline to address plaintiff's remaining arguments. Even if we

determined – which we do not – that the trial court committed error in any of its

other pretrial or trial rulings, we discern no basis to find that any such errors

constituted harmful error. R. 2:10-2 ("Any error or omission shall be

disregarded by the appellate court unless it is of such a nature as to have been

clearly capable of producing an unjust result[.]").

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 Affirmed, in part, and vacated, in part, and remanded for a new trial. 19 We

do not retain jurisdiction.

19
We affirm the dismissal of plaintiff's claims against Chief Peckerman and
vacate the dismissal of plaintiff's CEPA claim against the Township and remand
for a new trial.
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