GOINS v. NEWARK HOUSING AUTHORITY
Filing
128
OPINION & ORDER granting in part 100 Motion for Reconsideration, and reinstating plaintiff's CEPA claim, etc. Signed by Judge Kevin McNulty on 12/11/2019. (dc, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHERYL GOINS,
Civ. No. 15-2 195 (KM) (JEC)
Plaintiff,
OPINION & ORDER
V.
NEWARK HOUSING AUTHORITY,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Pending before the Court is the motion of plaintiff Cheryl Goins for
partial reconsideration (DE 100) of this Court’s summary judgment Opinion
and Order insofar as they dismissed her CEPA claim. (DE 98, 99). Here—and
not for the first time—the Court will attempt to ensure that this client is not
punished for the sins of this lawyer. For the reasons explained in this opinion, I
will GRANT the motion for reconsideration (DE 100) and reinstate plaintiffs
CEPA claim.
I.
Procedural Background
This case has been plagued by lamentable lapses in representation.
Where plaintiffs counsel, Ms. Foster, has not simply (and repeatedly) defaulted,
she has failed to present the facts with the clarity required by the rules. The
following text order, filed January 25, 2019, gives a flavor of the proceedings
preceding my prior summary judgment Opinion and Order:
TEXT ORDER: The extended deadline for filing dispositive motions
was June 19, 2018, with no further extensions. (DE 84). Defendant
filed a motion for summary judgment (DE 85) on June 19, 2018.
The plaintiff received an extension of the time to respond until
August 3, 2018, marked “no further extensions.” (DE 87). Plaintiff
filed no response, and no communication with the Court appears
on the docket. On January 3, 2019, the court issued a notice of
1
call for dismissal pursuant to L. Civ. R. 41.1(a), returnable
January 17, 2019. The Notice required that good cause by affidavit
setting forth efforts to prosecute the action be filed. (DE 88). No
such affidavit was filed. On January 15, 2019, the plaintiff filed
papers in response to the defendant’s summary judgment motion.
From a quick review, there appears to be no explanation for the
delay or motion to file out of time. (DE 89, 90). On January 22,
2019, the plaintiff filed her own motion for summary judgment.
(DE 93). The defendant, by letter, has requested that plaintiffs
motion be struck as untimely. The plaintiff responded with a letter
referring to the existence of “exceptional circumstances” for the
delay, but not describing them, and requesting the court’s
“guidance” as to whether a formal motion is required. (DE 95). The
does not render advice as to matters of procedure, and its
Court
prior orders have been explicit. For the present, the Court will
ADMINISTRATIVELY TERMINATE the plaintiffs motion (DE 93)
without prejudice to an application for renewal should it be
warranted by the Court’s disposition of the defendant’s summary
judgment motion. So Ordered by Judge Kevin McNulty on
1/25/ 19. (nic, ) (Entered: 01/25/2019)
...
(DE 96).
The Court’s strater was to see if defendant’s motion for summary
judgment would narrow the issues before considering any further summary
judgment arguments from the plaintiff. Once briefing of defendant’s motion for
summary judgment was complete, I filed the Opinion (DE 98) and Order (DE
99) granting the motion in part and denying it in part. I denied the motion of
defendant Newark Housing Authority (“NHA”) for summary judgment with
respect to Count 1, Ms. Goins’s claim under the Fair Labor Standards Act
(“FLSA”) of failure to pay overtime wages. All other claims were dismissed,
including the remainder of Count 1, FLSA retaliation; Count 2, Conscientious
Employee Protection Act (“CEPA”); and Count 5, racial discrimination under
the NJLAD and Civil Rights Act,
§
1831. (Id.).’ In my Opinion, I noted various
During the course of the parties’ summary judgment briefing, Ms. Goins
expressly withdrew Counts Three (NHA failed to accommodate her disability in
violation of NJLAD) and Four (a sex discrimination claim). (See DE 89-1 ¶ 28 (“Plaintiff
withdrew her claim for failure to accommodate a disability”); DE 89 at 25 (“Plaintiff,
I
2
deficiencies in the plaintiffs opposition papers, but attempted to deal with the
arguments and factual contentions as presented in her brief.2
having had the benefit of discovery, [nowj withdraws her claims of sex discrimination
failure to promote and instead believes her failure to be promoted was a result of
retaliation against her for her CEPA protected complaints.”)).
-
Ms. Goins’s opposition was unclear, not least because it failed in several
respects to comply with Federal Rule of Civil Procedure 56 and Local Rule 56.1. As
noted in my summary judgment Opinion (DE 98), plaintiffs counsel failed to provide
copies of several documents that she cited. See Fed. R. Civ. P. 56(c)(l) (2010 Advisory
Committee Notes) (“Materials that are not yet in the record--including materials
referred to in an affidavit or declaration--must be placed in the record.”). Exhibit 32,
though cited, was not filed. It was said to be an oversized “spreadsheet the plaintiff
prepared of her overtime hours at the NHA.” (Foster Decl., DE 89-2 ¶ 32). “Audio
Exhibits” 1 and 2, also cited, were obviously not on the docket, but copies and
transcripts were not provided to chambers, either. Plaintiffs Exhibits 7 through 11
were filed jointly as one document (DE 89-6), but only Exhibit 7 was labeled, leaving
the Court to guess at the designation of the rest. (DE 89-6 at 1).
2
Ms. Goins’s responding statement of facts also did not comply with Rule 56.1,
in that it neither admitted nor denied certain pertinent facts, but declared them to be
“irrelevant.” (PRSOF ¶ 8; see also PRSOF ¶ 1, 2, 5). Where pertinent facts are alleged,
such tactics defeat the function of a Rule 56.1 statement. “The Rule 56.1 statement
should only identify the universe of contested facts before the Court; arguments as to
the force of those facts belongs in the brief.
To the extent a fact is admitted or
denied, the Court will accept the submission. Any argument related to the legal
relevancy of that fact will be disregarded.” Durkin v. Wabash Nat., No. 10-cv-2013,
2013 WL 1314744, at *6 (D.N.J. Mar. 28, 2013).
.
.
.
In Ms. Goins’s brief, the argument section often failed to connect alleged facts to
the elements of a claim and at times wholly failed to address the relevant elements of
each claim. Goins cited purported facts in her briefing that were nowhere to be found
in her response to the statement of material facts. Many factual statements in the
argument section of the brief lacked any reference to the record. Such citations as
counsel did include were often incomplete or vague.
Intelligible citations to the record are required. Sifting through the evidentiaiy
record without adequate guidance “is not this Court’s duty.” Tegler u. Glob. Spectrum,
291 F. Supp. 3d 565, 568 (D.N.J. 2018); Bakery. The Hartford Life Ins. Co., No. 08CV-6382FLW, 2010 WL 2179150, at *2 (D.N.J. May 28, 2010), affd sub nom. Baker ii.
Hartford Life Ins. Co., 440 F. App’x 66 (3d Cir. 2011) (“It is not the Court’s
responsibility to comb the record on behalf of Plaintiffs counsel.”). Relatedly, issues
not discussed in the argument section of a brief need not be considered. Cf Travitz u.
Ne. Dep’t ILGWU Health & Welfare Fwid, 13 F.3d 704, 711 (3d Cir. 1994) (“When an
issue is not pursued in the argument section of the brief, the appellant has abandoned
and waived that issue on appeal.”)(citations omitted); Kadetsky u. Egg Harbor Twp. Bd.
of Ethic., 82 F. Supp. 2d 327, 334 n.5 (D.N.J. 2000) (finding “casual reference” to a
claim results in waiver).
3
I dismissed the CEPA whistleblower claim because the brief filed by Ms.
Foster—although it referred to various forms of conduct that were against “the
law” or “proper procedures”—failed to identify the particular law that she
alleged was violated:
To establish a cause of action for retaliation under CEPA, an
employee must demonstrate four elements: (1) she had a
reasonable belief that her employer’s conduct violated a law,
regulation, or clear mandate of public policy; (2) she performed a
“whistle-blowing” activity under the act; (3) the employer took an
adverse employment action against her; and (4) a causal
connection exists between the whistle-blowing activity and the
adverse employment action. Dzwonar u. McDevitt, 828 A.2d 893,
900 (N.J. 2003); Samowski v. Air Brooke Limousine, Inc., 510 F.3d
398, 404 (3d Cir. 2007).
Here, Ms. Qoins has failed to specify a single statute, rule,
regulation, or source of law expressing a public policy against
which the alleged facts can be measured. Rather, she has provided
a sketch of at least seven incidents in which she alleges that she
informed, or in some cases did not inform, her supervisors at NHA
that an activity violated a law. (DE 89 pp. 4—5, 14—15). For
example, she says she told Ms. Hamilton it was improper to use an
expired contract without a proper bidding procedure. (See id. p. 4).
For each incident, she broadly claims that some law was violated,
or believed to be violated, but fails to specify what law she is
referring to. See, e.g., id. (asserting that “there is a legal problem
with using a contract that has expired rather than sending it out to
be re-bid,” that “the law is quite clear that a BRC is needed”, or
that sending a private bid via e-mail “is not permitted under the
local contract law”).
Ms. Goins has failed to identify the legal violations she reported,
and the court will not speculate as to what they were. Because this
is sufficient to require summary judgment in NHA’s favor, I do not
address NHA’s other arguments.
(DE 98 at 3 1—32). The Court, as it was entitled to do, relied on the arguments
as stated in the brief. (DE 89).
In four instances, the brief cited a “Goins decl.”, without elaboration. (See DE
89 at 14, 15, and 25). I take this to be a reference to the document filed separately as
DE 90. With respect to her CEPA claim, Ms. Foster now claims that the Court should
have gleaned the legal violations to which she referred from that “Goins decl.” The
3
4
As matters stood post-summary judgment, the FLSA overtime claim was
the only one remaining in the case. The issues having been narrowed, I then
excused Ms. Foster’s prior procedural defaults and authorized her to file a
motion for summary judgment on that surviving FLSA claim. My order
specifically admonished her that any such motion would be expected to comply
with the local rules:
It is further ORDERED that within 45 days, Ms. Coins may file a
renewed summary judgment motion on the FLSA uncompensated
overtime claim. This motion shall conform in all respects to the
Federal and Local Rules of Civil Procedure. It will be succinct. It
will not contain extraneous factual material, but will focus on
those facts germane to the claim that Ms. Coins worked overtime,
the amount of hours worked, and the compensation allegedly
owed. Each fact will be cited to the specific place in the record
where support for it may be found. It will conform to the Opinion
filed herewith, and will not rehash matters already decided. It is
further ORDERED that NRA may file a response which may, at
NRA’s option, take the form of a response and cross-motion on the
FLSA overtime claim.
(DE 99).
Instead, on April 8, 2019, Ms. Coins filed the motion for reconsideration
of dismissal of the CEPA claim that is now before the Court. (DE 100).
On May 14, 201, Ms. Foster requested a 14-day extension of her
deadline to file a renewed motion for summary judgment on the FLSA claim. I
granted that extension until May 28, 2019. In what had now become a pattern,
she failed to file the motion by the extended deadline that she had requested.
NHA requested guidance. As a result of the Court’s order, it had expected
to file an opposition and cross-motion in response to Ms. Goins’s summary
judgment motion. Ms. Goins, however, had neither filed such a motion nor
sought additional time to do so. (DE 108). I entered an order authorizing NHA
to file its own motion for summary judgment on the FLSA claim. (DE 109).
CEPA discussion in Ms. Foster’s brief, however, makes a single vague reference to that
“Coins deci.,” and then only to support the claim that Ms. Coins had to pay for her
continuing education. (DE 89 at 25. No paragraph or page is cited.).
a
Accordingly, on June 27, 2019, NRA filed its motion for partial summary
judgment on Ms. Gains’s FLSA claim (DE 111), as well as its opposition to Ms.
Gains’s motion for reconsideration regarding the CEPA claim. (DE 11 1)A
Only thereafter, on July 3, 2019, did Ms. Foster file Goins’s long-overdue
motion for summary judgment on the FLSA claim. (DE 112). Although it had
been due on May 28, 2019, the motion was not accompanied by a motion to file
out of time, or even an explanation. Defendant understandably objected. (DE
113). On July 18, 2019, Ms. Goins’s counsel filed a motion for an extension of
time nunc pro tuna (DE 1 14). Not wishing to prejudice the client, I again
overlooked counsel’s lapse and accepted the motion for filing. (DE 117).
I then received a letter from defense counsel complaining, with some
justification, that plaintiffs summary judgment motion referred to exhibits
without stating their location on the docket. (DE 118). Perceiving that plaintiffs
counsel seemed to be overburdened, and not wishing to put her to the trouble
of re-filing exhibits already in the record, I permitted her to take advantage of a
convenient alternative procedure:
As noted, Ms. Foster failed to timely file Ms. Goins’s renewed motion for
summary judgment on the FLSA claim. It is not surprising then, that NRA’s summary
judgment arguments in support of dismissing plaintiffs FLSA claim are nearly
identical to those in its prior briefing. (See, e.g., DE 85-2 at 11—12; DE 97 at 6—8).
Notably, NHA’s moving brief fails to address the amount of overtime hours worked by
Ms. Gains and the compensation allegedly owed to her. (See DE 110-20 at 5—14).
NRA’s briefing in opposition to Ms. Goins’s motion for reconsideration, too, is a nearly
verbatim rehash of arguments made by NRA in its prior motion for summary
judgment. (Compare DE 97 at 11—18 with DE 110 at 15—20).
5
The explanation was as follows:
Due to personal hardships, including caring for my disabled brother and
having to move my late mother’s possessions out of her house on an
immoveable deadline not of my making, and without adequate help, and
moving 2.5 hours away with no office, an unreliable internet connection,
and no paralegal, I once again became unable to manage my workload.
Further, I failed to estimate correctly the time it would take to complete
my papers, and had trouble reaching my client.
(DE 114).
6
ORDER, plaintiffs counsel shall specify the location on the docket
of each referenced exhibit and! or shall refile them, appropriately
sponsored by an affidavit.
(DE 119). Ms. Foster then sought and was granted an extension of time to
comply. (DE 121, 122).
Ms. Foster responded to the Court’s gesture with what amounted to a
back-of-the-hand. Her short letter stated that the unattached exhibits (with a
couple of exceptions) “were all included in the plaintiffs opposition papers on
the motion for summary judgment or are attachments to defendant’s motion
for summary judgment.” (DE 123). This falls far short of a reasonably specific
citation to “each referenced exhibit” so that adversary counsel, and the court,
may readily locate the record support for each of the plaintiffs factual
contentions.
The crises of life happen to us all, and the Court is generally sympathetic
when confronted with reasonable requests for extensions of time. This docket,
however, sets forth a pattern of chronic, unexcused noncompliance with court
rules and orders. I have gone to unusual lengths to rescue counsel and her
client from the consequences of those defaults. For now, I will deal with the
motion for reconsideration with respect to the CEPA claim as-is.
II.
Facts in support of CEPA claim
a. CEPA claim as alleged in the complaint
The complaint alleges that NHA asked Ms. Goins to perform illegal acts
in connection with public contracts she was instructed to prepare (Cplt.
¶
39).6
6
The Complaint additionally asserts that Ms. Goins was “asked to perform illegal
acts in connection with.
her complaints about failure to pay her overtime.” (Cplt.
39). Ms. Goins’s counsel however appears to have abandoned that additional theory
¶
of CEPA liability; her briefing in her motion for reconsideration solely concerns her
CEPA claim with respect to the purported illegal acts Ms. Goins was asked to
undertake in connection with public contracts. (PBr. 3—10). Ms. Goins’s motion for
reconsideration fails to even mention overtime pay. Therefore, as outlined below, I will
reconsider only my dismissal of Ms. Goins’s contract-related CEPA claim. For the
avoidance of any doubt, Ms. Goins’s overtime-related CEPA claim remains dismissed.
.
.
7
Ms. Goins alleges that she objected to and refused to perform any illegal acts
and that, as a result, NHA retaliated against her. (Id.
¶ 40—41). As an example
of retaliation, she alleges that NHA instructed her coworkers to not ask her
questions even though she had the knowledge to answer such questions. (Id.
¶
41 a).
b. Supplemental facts
Ms. Goins did not file a counter-statement of undisputed facts with her
opposition to NRA’s motion for summary judgment. She did, however, file a
plaintiffs response to NHA’s statement of facts (“PRSOF”, DE 89-1).
Ms. Goins’s PRSOF contained facts that were not in her briefing;
conversely, her briefing raised facts that were not contained in her PRSOF. (DE
89; DE 93-1). To reiterate: Any facts 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 these submissions to glean such facts as may be
material to this reconsideration motion.
i. Supplemental facts in PRSOF
Two essential facts are asserted in the PRSOF concerning plaintiffs
CEPA allegation.
[1] Cheryl Goins had informed Shari Hamilton and Marvin Walton
of the Quadel contract that Nikki Whitney originally prepared a
signed contract with an amount that differs from the amount
originally approved by the board. Shari Hamilton instructed Cheryl
to recreate the contract with the amount that was approved by the
Board. This is totally illegal according to the local public contracts
law. The law states that prices received in proposals or bids are to
be presented and awarded as stated in bids and RFPs [requests for
proposals] received. Plaintiffs Response to interrogatory 4, Exhibit
o to Defendant’s papers.
(DE 8g-1 at 6; see also id. at 8 (“PIP was in retaliation for her complaints
that Shari Hamilton and others fail to follow contract law procedures
required by law.”)). The cited interrogatory responses, Exhibit 0, refer to
8
“public contract laws” but fail to state what specific law Coins believed
(or reported) was violated.
[2] Further, Cheryl had sent Ms Bryant 3 emthls complaining that
she was being retaliated against for her complaints about the use
of expired contracts and other improprieties as well as her belief
that she was being set up for termination. Ex. 13, D248, Ex. 9,
0732, and Ex. 3, her Sept. 19 email.
Id. at 10. The cited “Ex. 3” is a resignation letter which does not mention
Ms. Coins’s concerns over expired contracts. (DE 89-3 at 41). “Ex. 9” is
an email dated June 16, 2014, sent by Ms. Gains to Ms. Bryant. (89-6 at
5—6). This email informs Ms. Bryant that “it is questionable in relation to
ethics as well as violation the NJ Public Contracts Law to continue
following Shari’s instruction to create purchase orders as well as
amendment documents while it has initially expired.” (Id.). “Ex. 13” is a
June 30, 2014 email from Ms. Coins to Ms. Bryant and others stating
that Ms. Bryant’s failure to respond to a June 17, 2014 email was “proof
of continued retaliation and harassment for my complaints against my
supervisor Shari Hamilton conduct [sic]
.
.
.
procedures that contradicts
the State of NJ’s Local Public Contract Laws.” (DE 89-7 at 3). All of these
emails, moreover, were sent after Ms. Coins took medical leave from
NHA.
ii. Supplemental facts cited in plaintiffs summary
judgment opposition brief
Facts Section: The following factual allegations relating to the CEPA
claim appear in the facts section of plaintiff’s brief in opposition to NRA’s
motion for summary judgment.
Ms. Coins asserts that she objected to the way that her department
handled contracts and believed that her department violated unspecified
“public contracts law.” (DE 89 at 23). Ms. Coins cited the following examples:
(1) she was asked to use expired contracts; (2) on one occasion, Ms. Gains
pointed out to Ms. Hamilton that Survey Monkey lacked a business registration
certificate and therefore NRA should not have conducted business with them;
9
(3) Ms. Hamilton instructed Ms. Goins to send out a private bid to Survey
Monkey via email rather than sending out the bid for competitive processes;
and (4) on May 5, Ms. Goins relayed to Ms. Hamilton that NRA is supposed to
submit a certification to each vendor verifying that the vendor is not doing
business with Iran, something she believed NHA was not complying with. (DE
89 at 10—11).
In the facts section of her brief, Ms. Goins makes the following
allegations, which are not visibly supported by the record:
(1) “Cheryl reminded Shari that it is impermissible to increase a
purchase order (“P0”) on a dead contract. CG 847” I cannot locate CG 847,
whatever that may be, in the record.
(2) “Money was not being set aside to pay contracts (encumbrance) as
required by law. Ex. 22, CO 64-65.” The cited exhibit does not support the
assertion that money was not being set aside. It relates to a private bidding
process.
(3) “lOin April 15, 2014 Cheryl sent Shari an email remind[ingj her that a
portal sent to prospective bidders was not adequate and a newspaper
advertisement was needed. Ex. 23.” (DE 89 at 10—11). In Ex. 23, an email, Ms.
Goins asked for guidance concerning compliance with an unspecified rule
requiring that bids be posted in an “official newspaper.” The response to the
email is not provided. This email does not constitute confirmation that any bid
process was inadequate.
(4) Ms. Goins also states generally that her concerns about contract
practices are evidenced by audio recordings. (DE 89 at 11). These recordings
were not in the record. (Id.).
Argument Section: The argument section of Ms. Goins’s brief refers to a
panoply of “adverse” employment actions. (DE 89 at 25—28). Again, most are
unsupported by proper citations to the record. For example, Ms. Goins asserts
that she was given “burdensome work assignments” and cites to “Ex. 6,” a 51page compilation of largely handwritten notes. I will not wade through these
notes to determine what she may be referring to. Ms. Goins also asserted that
10
NHA refused to pay for her attendance at the Rutgers Public Purchasing
Conference and required her to take a vacation day to attend. (DE 89 at 13,
25). My prior opinion discussed the deficiencies with these allegations in detail.
(DE 98 at 15).
Because Ms. Coins’s reconsideration argument relies heavily on material
from her declaration, I here highlight the single reference to the declaration in
the CEPA-related argument section:
She had to get her continuing education, which was required to
maintain her public purchasing certification, by paying for it
herself and taking vacation, but others in the department had their
conferences paid for and did not have to take vacation. Goins deci.
This happened two years in a row. Cheryl was required to maintain
her credentials as a public purchasing specialist by attending
these courses25, but Shari Hamilton would not pay for her to
attend or pay her salary while she was attending. But she did this
for 2 males who did not complain of illegal activities.
(DE 89 at 25 (emphasis added)). The reference to the “Coins decl.” is not
specific to any particular portion to the declaration and is the only reference to
this declaration in this portion of the brief. Footnote 25 is a link to the
requirements to get a purchasing certificate from the Rutgers program. It does
not support the contention that Ms. Coins was required to have this certificate.
(Other portions of the declaration turn out to be relevant, however. See infra.)
The following factual contentions concerning alleged adverse actions,
however, appear to be supported by record citations. On either June 11 or 12,
2014, Ms. Goins received a Verbal Notice of Disciplinary Action—her first.
(DSOF ¶j 18, 19; PRSOF
¶
18). On June 12, 2014, Ms. Coins received a
performance improvement plan (“PIP”). (Id.
¶
20). Defendants assert that Ms.
Coins received the PIP because of poor work performance. (DSOF
¶
20). Ms.
Coins asserts that she received it in retaliation for her CEPA complaints.
(PRSOF
¶
20).
Ms. Coins also asserts that she was cheated out of overtime pay. As noted in
my March 29, 2019 opinion, neither party submitted any significant evidence of Ms.
Goins’s actual daily work hours. (See DE 98 at 12—14).
11
III.
Discussion
Local Rule 7.1(i) governs motions for reconsideration. Reconsideration is
granted sparingly, generally only in one of three situations: (1) when there has
been an intervening change in the law; (2) when new evidence has become
available; or (3) when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995); Carmichael v. Everson, 2004 WL 1587894 (D.N.J.
May 21, 2004). “A motion for reconsideration is improper when it is used ‘to
ask the Court to rethink what it had already thought through—rightly or
wrongly.’” Oritani Say. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp.
1311, 1314 (D.N.J. 1990) (quoting Above the Belt v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983)). Evidence or arguments that were available
at the time of the original decision will not support a motion for
reconsideration. Damiano v. Sony Music Entm’t, Inc., 975 F. Supp. 623, 636
(D.N.J. 1997); see also NorthRiver Ins. Co., 52 F.3d at 1218; Bapu Corp. v.
Choice Hotels Int’l, Inc., 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing
P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001)).
a. Analysis
Ms. Goins invokes the third option for reconsideration—i.e., that
reconsideration is warranted to correct a clear error of law or to prevent
manifest injustice. She asserts that reconsideration of her CEPA claim is
warranted because the record contains indications of what specific law had
been violated and therefore satisfied element 1 of her CEPA claim. (PBr. at 4).
The Court, says Ms. Goins, overlooked two documents where plaintiff identified
the particular legal violations that underlay her complaints as a whistleblower:
“[1] Defendant’s exhibit 0 to its motion for summary judgment, which
comprises plaintiffs interrogatory answers, and [2] plaintifFs declaration ECF
90, submitted as part of her opposition to summary judgment.” (Id.). Notably,
the reconsideration motion does not point to anything in Ms. Goins’s PRSOF or
12
her brief. The contentions now forwarded in support of reconsideration are not
to be found there. Having been belatedly directed to Exhibit 0 and plaintiffs
declaration, however, I will review them.
I turn first to the interrogatory responses contained in “Defendant’s
exhibit 0.” (See excerpt reproduced in PBr. at 6—7.). I find nothing in these
interrogatory responses that clearly states what law or laws Ms. Goins believed
had been violated. Instead, these interrogatory responses contain no fewer than
five vague references to “public contract laws.”
I turn next to the Qoins Declaration. (DE 90). Here I do find that Ms.
Goins has articulated what specific laws she reasonably believed were violated.
In particular, she cites “N.J. Local Public Contracts Law and Regulation
Reference Manual N.J.S.A. 40A:11-1 et seq.” (Goins Decl.
6—9). She pinpoints
§
¶11
14—26, DE 90 at
40A: 11-15, “Duration of Contracts,” which states that the
terms of contracts may not exceed 24 months, As noted above, Ms. Goins
asserts that she was required to work on contracts that had expired. She cites
other examples as well. Accordingly, based on this declaration, I find that Ms.
Goins has satisfied element 1 of her CEPA claim, that she identify some
particular law that she reasonably believed her employer’s conduct was
violating.
Summary judgment on Ms. Goins’s CEPA claim was granted to
defendant based upon my finding that her brief cited no particular legal
violation in support of element 1. Because she now points to such a citation, I
will reinstate Ms. Goins’s contract-related CEPA claim.
I will consider the other elements of the CEPA claim in a later opinion.
Still pending are two motions for summary judgment. (DE 110, 112). At the
proper time, I may also entertain a motion for imposition of sanctions.
13
ORDER
For the reasons set forth above,
IT IS this 11th day of December, 2019
ORDERED that plaintiffs motion for reconsideration (DE 100) is
GRANTED in part, and her CEPA claim, insofar as it is based on the alleged
legal violations and retaliatory actions cited above, is reinstated.
(J
Ke nMcNulty
United States District Judge
14
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