United States District Court, D. New Jersey
McNulty United States District Judge.
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
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.
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).
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).
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.).
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).
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
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.
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.).
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.
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.
Complaint contains five counts, two of them now witiidrawn. I
review the allegations.
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).
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).
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.
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
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
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.
Material facts 
NHA 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 ¶
Timekeeping and NHA's overtime policy
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)).
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.)
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). She admits, however, that there
came a time (unspecified) at which she became aware of the
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.)
U.S. Department of Labor (the "DOL") investigated
the pay practices of NHA in 2013. (DSOF, PRSOF at ¶
to that investigation, Ms.
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 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
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
Goins neither admits nor denies submitting this statement to
[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.
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.
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).
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.).
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
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.
The DOL Agreement
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).
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).
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).
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
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; 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.
Ms. Goins provides an e-mail, possibly the one referred to in
the diary entry. (DE 89-6 pp. 1-2). 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