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Goins v. Newark Housing Authority

United States District Court, D. New Jersey

March 29, 2019

CHERYL GOINS, Plaintiff,


          Kevin McNulty United States District Judge.

         This action arises from plaintiff Cheryl Goins's past employment with defendant the Newark Housing Authority ("NHA"). Ms. Goins has alleged that NHA asked her to participate in illegal conduct, engaged in discriminatory and retaliatory behavior against her, and failed to pay her overtime wages. Pending before the Court is the motion of defendant NHA for summary judgment pursuant to the Federal Rule of Civil Procedure 56. For the reasons explained in this opinion, I will GRANT in part and DENY in part NHA's motion.

         I. Background[1]

         a. Procedural History

         This Opinion assumes familiarity with the procedural history of this action. I highlight here the history most pertinent to the resolution of the parties' cross motions.

         On March 27, 2015, Ms. Goins filed a Complaint against her former employer, NHA. As discussed in Section II.b, infra, three Counts of the complaint remain active. Ms. Goins seeks back pay, front pay, lost benefits, punitive damages, damages for emotional distress and post-traumatic stress disorder, and any and all other statutory damages. (Cplt. p. 7).

         On July 17, 2015 Magistrate Judge Clark filed the original scheduling order. Because of several discovery disputes and scheduling issues, Magistrate Judge Clark extended discovery numerous times. (See e.g., DE 19; DE 27; DE 34; DE 45; DE 51; DE 57; DE 65; DE 80).

         On April 2, 2018, Magistrate Judge Clark filed a scheduling order setting deadlines for the filing of all dispositive motions. (DE 82). On May 9, 2018, plaintiffs counsel sought an amendment to the scheduling order, citing health issues in the plaintiffs immediate family. (DE 83). Magistrate Judge Clark granted Ms. Goins an extension, but provided that there would be "no further extensions." (DE 84). The scheduling order, as extended, required the parties to file dispositive motions by June 19, 2018, oppositions by July 17, 2018, and replies by July 31, 2018. (Id.).

         On June 19, 2018, NHA filed its first motion for summary judgment. (DE 85). On July 25, 2018, Magistrate Judge Clark, in response to a request from plaintiffs counsel, extended the deadline for the filing of papers in opposition to August 3, 2018 and ordered that there would be "NO FURTHER EXTENSIONS" of that particular deadline. (DE 87) (CAPITALS in original). Five months later, plaintiffs counsel had not filed any papers in opposition to summary judgment. On January 3, 2019, the Clerk of the Court filed a notice of call for dismissal pursuant to Local Civil Rule 41.1(a). Twelve days later, on January 15, 2019, plaintiffs counsel filed an opposition to the motion for summary judgment, proffering no excuse. (DE 89). In response, NHA filed a letter objecting to the untimely filing and seeking an extension to file a reply. (DE 91). This Court granted NHA the requested extension. (DE 92).

         On January 22, 2019, now over six months late for her deadline, plaintiffs counsel filed her own motion for partial summary judgment. (DE 93) Understandably, NHA objected. (DE 94). On January 24, 2019, plaintiffs counsel submitted a letter providing the following (non-)explanation for the motion's tardiness:

I represent the plaintiff on this matter. I recently filed opposition papers on a summary judgment motion and a cross motion on this matter, they were due months ago, and defendant's counsel has objected that they were presented so late. Exceptional circumstances prevented my adherence to the scheduling order. I seek the court's guidance as to whether a formal motion is required to explain these issues. Thank you for your kind attention to this matter.

(DE 95).

         In response, on January 25, 2019, this Court instructed that it "does not render advice as to matters of procedure, and its prior orders have been explicit." (DE 96). This Court administratively terminated Ms. Goins's motion for partial summary judgment without prejudice, citing the fact that plaintiffs counsel did not provide any description of the "exceptional circumstances" that prevented her from filing anywhere near Magistrate Judge Hammer's deadline. I instructed plaintiffs counsel that she might submit an application for renewal of her motion for summary judgment should it be warranted after the disposition of NHA's summary judgment motion. (Id.).

         As discussed infra, within her brief in opposition to summary judgment, Ms. Goins has asked this Court to consider the FLSA-related arguments contained in the brief she filed in support of her now-terminated motion for summary judgment. (DE 89 p. 24). I will review those arguments, but only insofar as they bear on her opposition to NHA's motion for summary judgment.

         On February 28, 2019, NHA filed its reply to the opposition. (DE 97). As stated in Sections H.b.i and ii, infra, NHA's brief does not appear to address Ms. Goins's FLSA-related arguments. (Id.; DE 93). Goins's scattershot presentation is likely to blame, so I will permit NHA to make a supplemental response.

         b. Claims

         The Complaint contains five counts, two of them now witiidrawn. I review the allegations.

         In Count One, Ms. Goins brings a claim for violations of the Fair Labor Standards Act (FLSA) for failure to pay overtime wages and for retaliation. (Cplt. ¶¶ 31-36). Ms. Goins alleges that the New Jersey Department of Labor determined that she and other employees should have been paid overtime for work. (Id. ¶ 31). NHA paid some co-workers overtime in June 2014, but she was never paid. [Id. ¶ 32). She also alleges that she asked NHA why she was not paid but did not receive a response. (Id. ¶¶ 33-34). Further, Ms. Goins alleges that NHA knowingly and willfully failed to pay her overtime wages, which constituted a constructive discharge of her employment. (Id. ¶¶ 35-36).

         In Count Two, Ms. Goins brings a claim for violations of the Conscientious Employee Protection Act ("CEPA"). (Id. ¶¶ 39-42). She alleges that NHA asked her to perform illegal acts in connection with: (1) the public contracts she was instructed to prepare and (2) her complaints about failure to pay her overtime wages. (Id. ¶ 39). Ms. Goins alleges that she objected to and refused to perform any illegal acts and, as a result, NHA retaliated against her. [Id. ¶ 40-41). As an example, she alleges that NHA instructed her coworkers to not ask her questions even though she had the knowledge to answer those questions. (Id. ¶ 41a).

         In Count Five, Ms. Goins brings claims for racial discrimination in violation of NJLAD and the Civil Rights Act, § 1981. (Id. ¶¶ 49-52). Ms. Goins states that she is racially black and Native American. (Id. ¶ 50). First, she alleges that NHA treated Ms. Goins's white co-worker, who was similarly situated to Ms. Goins, more favorably, by excusing the co-worker from work and having others do her work for her. [Id. ¶ 49). Second, Ms. Goins alleges that she was subjected to abuse and harassment that resulted in a hostile work environment. (Id. ¶ 51). She alleges that she has not been able to find suitable substitute employment and believes that NHA is preventing her from getting hired. (Id. ¶ 52).[2]

         c. Hearsay

         Before surveying the material facts, I clarify one issue of law. NHA makes a general argument that "Summary Judgment should be granted because Plaintiffs opposition is based upon unsupported assertions, bare allegations, speculation, and hearsay." (DE 97 p.l).

On summary judgment, courts consider hearsay as follows:
The rule in this circuit is that hearsay statements can be considered on a motion for summary judgment if they are capable of being admissible at trial. In ruling on a motion for summary judgment, the court need only determine if the nonmoving party can produce admissible evidence regarding a disputed issue of material fact at trial. The proponent need only 'explain the admissible form that is anticipated.'" Thus, in ruling on Defendants' motion for summary judgment, the district court should have limited its inquiry to determining if the out-of-court statements Plaintiffs were relying on were admissible at trial.

Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238-39 (3d Cir. 2016) (internal citations omitted) (holding that out-of-court statements the plaintiffs relied on were admissible at trial when "[p]lantiffs identified the out-of-court declarants . . . and noted their availability to testify"). See also Fed.R.Civ.P. 56 (advisory committee notes to 2010 edition) ("The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.") Thus, if the party submitting hearsay explains the admissible form that is anticipated for trial, the court will consider the evidence on summary judgment. See Frilando v. Bordentown Driver Training Sch., LLC, No. 2:15-cv-02917-KM-JBC, 2017 WL 3191512, at *15n. 19 (D.N.J. 2017) (McNulty, J.) ("Frilando argues Diab's testimony concerning what the authorities told him is inadmissible hearsay. Bordentown says it is not hearsay because it is not being offered to prove the truth of the statement. The rule in this circuit is [contained in Fraternal Order, supra]. I accept Bordentown's explanation and therefore consider Diab's testimony on this motion." (internal citations omitted)); see also Watkins v. Wells Fargo Bank, N.A., No. 15-cv-5712, 2017 WL 2399086, at *4 n. 3 (D.N.J. June 2, 2017) ("Plaintiff argues that Wells Fargo's records cannot be considered by this Court on summary judgment on the grounds of hearsay. Plaintiff is incorrect, [citing Fraternal Order, supra], . . Here, Defendant has proffered that these documents are capable of being admissible at trial as business records under Federal Rule of Evidence 803(6)." (internal citations omitted)).

         Many, perhaps most, summary judgment submissions contain hearsay. (Affidavits, for example, are ordinarily inadmissible at trial.) NHA's blanket objection, then, is not well taken. NHA's only specific hearsay objection relates to exhibits containing newspaper articles and screenshots of Linkedln pages. (DE 97 p. 1-3). To the extent it may be important to rely on those articles or internet print-outs, then, I will consider them to the extent permissible under the standards of Fraternal Order, supra.

         d. Material facts [3]

         NHA[4] employed Ms. Goins as a coordinator of contractual operations from October 2012 until her resignation in September 2014. (DSOF, PRSOF at ¶ 3). Shari Hamilton, the Director of Procurement and Contract at NHA, supervised Ms. Goins. (Id. at ¶ 4).[5]

         i. Timekeeping and NHA's overtime policy

         NHA used a hand punch-in/punch-out system to keep track of the time worked by employees. (DSOF, 89-1 at ¶ 5). Ms. Goins agrees (PRSOF ¶ 5), but adds that NHA used overtime slips to record overtime and pay employees. For working overtime (Id.) (citing Ex. 4, Hamilton Dep., DE 89-3 pp. 42-101 (25:1-25 therein)).

         Ms. Hamilton reminded Ms. Goins to punch in and out at the correct times based on her approved work schedule. (DSOF, PRSOF ¶ 6). Ms. Goins admits this, but denies any implication "that Ms. Goins did not work past her assigned hours." (PRSOF ¶ 6). (Ms. Goins's allegations that she worked past her scheduled hours are addressed at Section I.f.i, infra.)

         NHA had a policy that employees would be paid overtime only when they had prior approval to work overtime. (DSOF, 89-1 ¶ 7). NHA asserts that Ms. Goins was aware of and understood that overtime policy. (DSOF ¶ 8) (citing Goins Dep. 98:1-25, 137:1-6, 293:13-25; 294: 1-25). Ms. Goins denies, however, that she always understood and was aware of the policy. (PRSOF ¶ 8) (citing Ex. 10, DE 89-6 pp. 7-8; Ex. 11, DE 89-6 pp. 9-11; Ex. 30, DE 89-9 p. 7; Ex. B, Goins Dep., DE 85-5, 214:1-25, 322:1-25, 323:1-25, 388:6; Ex. 4, Hamilton Dep., DE 89-3 pp. 42-101 (219:1-25, 388:18 therein); Ex. 5, Fuentes Dep., DE 89-4 p. 56:1-25).[6] She admits, however, that there came a time (unspecified) at which she became aware of the policy.[7] Ms. Goins presents several citations to the effect that Ms. Hamilton required her to work overtime and that she did so. (See Section I.f.i, infra.)[8]

         ii. DOL Investigation

         The U.S. Department of Labor (the "DOL") investigated the pay practices of NHA in 2013. (DSOF, PRSOF at ¶ 9).[9] Pursuant to that investigation, Ms.

         Goins was interviewed. (Id. ¶ 10). Ms. Goins provided a written statement to the DOL investigator. (Id. ¶ 11). NHA asserts that, in her statement, Ms. Goins "advised that she did not work overtime at NHA." (SOF ¶ 11) (citing Ex. M, DE 85-16; Ex. B, Goins Dep., DE 85-5 pp. 387:17-25, 388:1-25).

A copy of the written statement, dated March 28, 2013, reads as follows:
As the coordinator I was basically preparing contracts, edit specifications, I do receiving of goods, processing of invoices, and performing background checks of vendors.
I work from 8:00 to 4:30 Monday through Friday. I don't work overtime. I get lunch for one hour. I do not work through lunch. I sometimes get interrupted for questions during lunch. I clock in and out for the start and end of the day. I start working after I punch in. No. one ever changes my time. If I work past my scheduled hours I am not paid for that time.
I am paid a salary. If I were to work overtime and its wasn't approved I don't get paid for it. My pay is the same each week. I don't really work overtime. I am not aware of anyone that works here under 18.

(Ex. M, DE 85-16 p. 2). Beneath that line is a signature, which appears to read "Cheryl Goins," attesting that the "above statement is both true and correct." (Ex. M, DE 85-16 p. 2). Beneath that is the signature of the witness, Travis J. Hall, Wage - Hour Investigator. (Id.).

         Ms. Goins neither admits nor denies submitting this statement to the DOL:

[T]he original of her statement was never produced by defendant and plaintiff was not given a copy of the statement at the time she made it, so she does not know if the document is genuine or has been altered as NHA has altered other documents in the litigation.

(PRSOF ¶ 11). Thus Ms. Goins alleges forgery and fraud on the court-or rather, alleges that "she does not know" if it has occurred. She has provided no evidence of that, and she surely knows if she supplied a signed, sworn statement to the DOL. (Her submission of a statement to the investigators, for example, is the foundation of her retaliation claim.) (PRSOF ¶ 11). This equivocal maybe-accusation is insufficient to raise an issue of fact as to the genuineness of the DOL statement.

         From the DOL statement, it appears that Ms. Goins stated that "[i]fl work past my scheduled hours I am not paid for that time," but that she "did not really work overtime." (Ex. M, DE 85-16 p. 2; emphasis added). Ms. Goins argues that the term "overtime" is ambiguous, as it can mean either the extra hours worked or the wages paid for those hours. See Section II.b, infra.

         iii. Resignation

         On either June 11 or 12, 2014, Ms. Goins received a Verbal Notice of Disciplinary Action-her first. ((DSOF ¶¶ 18, 19; PRSOF ¶ 18). On June 12, 2014, Ms. Goins received a performance improvement plan ("PIP"). (Id. ¶ 20). Defendants assert that Ms. Goins received the PIP because of poor work performance. (DSOF ¶ 20) Ms. Goins asserts that she received it in retaliation for her CEPA complaints. (PRSOF ¶ 20). On June 16, 2014, Ms. Goins took a leave of absence, purportedly for stress. (DSOF, PRSOF ¶ 21).

         In September 2014, Ms. Goins submitted her resignation to NHA. (DSOF, PRSOF ¶ 22). The parties disagree as to what prompted Ms. Goins to resign. (DSOF, PRSOF ¶ 23). They agree that prior to Ms. Goins's resignation, NHA had already determined to terminate her employment. (DSOF, PRSOF ¶ 24). However, they disagree as to when NHA's plan to terminate Ms. Goins originated. (Id.).

         e. Supplemental facts

         In her response to the statement of facts, Ms. Goins has, on multiple occasions, asserted facts that are tangential to the issue. (See PRSOF). Further, she has raised facts in her briefing that she failed to state in her response to the statement of material facts. (DE 89; DE 93-1). To reiterate: Any such facts she believed were relevant to her opposition should have been placed in a numbered supplemental statement of disputed material facts, with each fact appropriately cited to the underlying record. See L. Civ. R. 56.1. I have nevertheless surveyed this submission to glean such facts as may be material to this summary judgment Opinion.[10]

         First, Ms. Goins alleges that, as a result of the DOL investigation, the NHA and DOL entered into an agreement. Second, Ms. Goins alleges that she worked overtime hours. Third, Ms. Goins alleges that a number of articles have come out about her. Fourth, she alleges that NHA failed to send her to the Rutgers Public Purchasing conference.

         i. The DOL Agreement

         Ms. Goins asserts that, as a result of the DOL investigation, on March 10, 2014, NHA and the DOL entered into a Back Wages and Compliance Agreement (hereinafter, the "DOL Agreement") in which NHA agreed to pay employees all back wages from the period of March 27, 2011 to March 24, 2013, totaling $1, 072, 709.53. (Exhibit 11). Because NHA attaches a copy of the DOL Agreement to its reply brief, I will deem this fact undisputed. (See Ex. Q, DE 97-2). As discussed supra, Ms. Goins asserts that she worked overtime during that period (but also, apparently, at some later time or times).

         In its reply brief, NHA asserts that the DOL provided a list of employees that it contended were entitled to overtime payments. Ms. Goins was not on the list. (DE 97 p. 4) (citing Ex. Q, DE 97-2).

         Ms. Goins asserts in her statement of facts, with no citation to the record, that when she "wrote to Sybil Bryant to ask her why she did not get an overtime check as everyone else did, Sybil did not respond, but instead she advised Cheryl that if she failed to return to work she would be fired." (DE 89 p. 13).[11]

         ii. Overtime

         Neither party has submitted evidence of Ms. Goins's daily work hours. Her statement to the DOL, however, indicates that her regular hours were from 8:00am to 4:30pm, Monday through Friday. (See Ex. M, DE 85-16). Neither party has stated (1) how many hours Ms. Goins worked each week of her employment; (2) how many of those hours were overtime hours (i.e., beyond 40 hours as prescribed under the FLSA); and (3) how many of those overtime hours were uncompensated.

         Ms. Goins states generally that "Ms. Hamilton instructed the plaintiff to punch out but required the work to be done." (PRSOF ¶ 6) (emphasis added). As proof, Ms. Goins cites to her own deposition testimony, an e-mail, and her personal diary entry. (PRSOF ¶ 6) (citing Goins Dep. p. 322-23; DE 89-6 pp. 1-2;[12] DE 89-5 p. 50). In her deposition, Goins testified that she had spoken with Ms. Hamilton "about the problem with her keeping me after hours, and then she would turn around and say, oh, you can punch out. But that's never the case . . ." (Ex. B, Goins Dep., DE 85-5 p. 322-23). Ms. Goins's personal diary entry, dated Thursday, April 17, 2014, states that Ms. Hamilton sent her an e-mail after work hours. (DE 89-5, p. 50).[13]

         Finally, Ms. Goins provides an e-mail, possibly the one referred to in the diary entry. (DE 89-6 pp. 1-2).[14] This email, however, is not quite as advertised. The original message, time-stamped April 23, 2013 at 4:45 pm, is from Ms. Goins to Ms. Hamilton. (DE 89-6 pp. 1-2). In it, Goins provides an update on assignments and objectives. (Id.). Although the time stamp is very slightly after work hours, it does not demonstrate that Goins worked overtime or, if so, that she was not paid for it. Forwarding the email, apparently to herself, Ms. Goins writes in the forwarding message, that "this is proof of me working over my end time because [Ms. Hamilton] demanded ...

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