GOINS v. NEWARK HOUSING AUTHORITY

Filing 149

OPINION. Signed by Judge Kevin McNulty on 1/12/2021. (lag, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHERYL GOINS,

Civ. No. 15-2195 (KM) (JBC)

Plaintiff,
OPINION

v.
NEWARK HOUSING AUTHORITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
This Opinion is the latest in a series regarding this matter. I write
primarily for the parties and presume familiarity with the facts and procedural
history.
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. Prior
Opinions of the Court have disposed of the majority of the claims raised in Ms.
Goins’s Complaint.
Now pending before the Court is defendant NHA’s third motion (DE 135)1
for summary judgment. That it is the third such motion is by no means
defendant’s fault; multiple errors and defaults by plaintiff’s counsel, as
outlined in a prior opinion, have accounted for the many delays and procedural
false starts in this action. (DE 128)

Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:
1

“DE” = Docket entry number in this case.
“Compl.” = Complaint (DE 4)

1

NHA now seeks summary judgment on Ms. Goins’s contract-related
Conscientious Employee Protection Act (“CEPA”) claim, which was reinstated
after a prior dismissal. For the reasons provided herein, I will deny NHA’s
motion because Ms. Goins has raised issues of fact. (DE 135).
I.

Summary
The procedural history was recited in detail in prior Opinions in this

matter. I note only the most important details.
On March 27, 2015 Ms. Goins filed a Complaint against NHA, her former
employer. (Compl. ¶4). The Complaint contained five counts, two of which were
withdrawn. On June 19, 2018, NHA filed its first motion for summary
judgment (DE 85) with respect to the remaining three claims: violations of the
Fair Labor Standards Act (“FLSA”) (Count One); CEPA violations (Count Two);
and claims for racial discrimination in violation of the New Jersey Law Against
Discrimination and the Civil Rights Act, 42 U.S.C § 1981 (Count Five). On
March 29, 2019, I granted defendant’s motions with respect to Counts Two and
Five. (DE 98 at 33) Therefore, the sole surviving claim was for uncompensated
overtime pursuant to the FLSA. (Id.).
Ms. Goins then filed a motion (DE 100) for partial reconsideration with
respect to the dismissal of her CEPA claim. I dismissed the CEPA claim
following defendant’s first motion for summary judgment because I found that
Ms. Goins had failed to identify the particular law that she believed NHA had
violated. (DE 98 at 31) On reconsideration, Ms. Goins submitted that the Court
overlooked evidence of particular legal violations. I found that, although Ms.
Goins’s briefing and statement of facts on summary judgment had failed to cite
or specify any such violation, it could be found in an accompanying
Declaration. The Declaration did articulate a specific law that Goins believed
was violated: “N.J. Local Public Contracts Law and Regulation Reference
Manual N.J.S.A. 40A:11-1 et seq.” (DE 128 at 13) (citing DE 90 at 6-9, Goins
Declaration (“Decl.” ¶¶14-26)). In particular, Ms. Goins pinpointed N.J. Stat.
Ann. 40A:11-15, “Duration of Contracts.” (Id.). Because Ms. Goins did cite to a
2

particular legal violation, I reinstated her contract-related CEPA claim.2 (DE
128 at 13-14).
On March 13, 2020, I ruled on defendant’s pending second motion (DE
110) for summary judgment and Ms. Goins’s cross-motion (DE 112) for
summary judgment. (DE 129 at 1-2). For the reasons articulated in the March
13, 2020 Opinion, I substantially granted, but denied in part NHA’s motion.
(DE 129 at 28). As to Ms. Goins’s FLSA uncompensated overtime claim for the
period of October 9, 2012 to April 20, 2014, I granted the motion and
dismissed those claims. (Id.) As to Ms. Goins’s FLSA uncompensated overtime
claim for the period of March 24, 2013 to June 2014, I granted the motion in
part, but denied the motion as to minor claim for 2.33 hours from the week of
April 21, 2014. (Id.) As to Ms. Goins’s contract-related CEPA claim, I denied the
motion but allowed the parties to file supplemental briefs, to be treated as
cross motions for summary judgment. (Id.) Also on March 13, 2020, I denied
Ms. Goins’s cross-motion for summary judgment on all issues. (Id.).
Now before the Court is the defendant NHA’s third motion (DE 135) for
summary judgment with respect to Ms. Goins’s remaining, contract-related
CEPA claim.
II.

Discussion
a. Legal standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a Court must construe all facts and
As explained in the December 11, 2019 Opinion (DE 128), the Complaint
alleged that Ms. Goins was “asked to perform illegal acts in connection with . . . her
complaints about failure to pay her overtime.” (Compl. ¶39) Ms. Goins’s counsel
seemingly abandoned that alternative theory of CEPA liability in her motion for
reconsideration. Therefore, the overtime-related CEPA claims remain dismissed; I have
reinstated only Ms. Goins’s contract-related CEPA claims.
2

3

inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine issue of
material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof ... the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations ... and pleadings are insufficient
to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
If the nonmoving party has failed “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial, ... there can be ‘no genuine issue of
material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322–23).
In deciding a motion for summary judgment, the Court’s role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
4

Credibility determinations are the province of the fact finder. Big Apple BMW,
Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). The summary
judgment standard, however, does not operate in a vacuum. “[I]n ruling on a
motion for summary judgment, the judge must view the evidence presented
through the prism of the substantive evidentiary burden.” Anderson, 477 U.S.
at 254.
b. Plaintiff’s Contract-Related CEPA Claim
CEPA was enacted to “protect and encourage employees to report illegal
or unethical workplace activities and to discourage public and private sector
employers from engaging in such conduct.” Abbamont v. Piscataway Twp. Bd.
of Educ, 138 N.J. 405, 431, 650 A.2d 958, 971 (1994). To effectuate that aim,
the statute provides, in relevant part:
An employer shall not take any retaliatory action against an
employee because the employee . . . [d]iscloses, or threatens to
disclose to a supervisor or to a public body an activity, policy or
practice of the employer . . . that the employee reasonably believes .
. . is in violation of a law.
N.J. Stat. Ann. §34:19-3(a)(l). A 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.
Stat. Ann. §34:19-2(e).
CEPA retaliation claims are analyzed under the usual McDonnell Douglas
framework. See Winters v. N. Hudson Reg'l Fire & Rescue, 50 A.3d 649, 662
(N.J. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The
employee bears the initial burden of establishing a prima facie case of
retaliation. Id. Then, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the alleged adverse employment
action. Id. If the employer articulates such a reason, the burden shifts to the
employee to demonstrate that the employer’s articulated reason is false and the
real reason for the adverse employment action was retaliation. Id.

5

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 v. McDevitt, 828 A.2d 893, 900 (N.J. 2003); Samowski v. Air Brooke
Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007).
With respect to Ms. Goins’s contract-related CEPA claim, the Complaint
alleged that Ms. Goins “was asked to perform illegal acts in connection with the
public contracts that she was instructed to prepare.” (Compl. ¶39). The
Complaint further alleged that Ms. Goins “objected to these illegal instructions
and refused to perform any illegal acts,” and, “[a]s a result of her objections
and refusals, [Ms. Goins’s] was retaliated against.” (Compl. ¶¶ 40-41). As
alleged in the Complaint, some of the illegal activities Ms. Goins was asked to
perform included the following:
(a) process contracts that were too old and needed to be updated.
(b) handle contracts that had been started by other personnel, were
incorrectly prepared, and bring them to completion. For these
contracts, other personnel had failed to utilize proper procedures for
creating or renewing purchase orders that are needed to correspond
with the individual contracts in order to track them.
(c) process contracts that had not been sent out for a proper bid.
(d) adjust purchase order timelines illegally.
(Compl. ¶9).
With respect to retaliation, the Complaint alleged:
•

Ms. Goins was not permitted to ask certain types of questions that other
employees were permitted to ask;

•

Ms. Goins was given “contracts that had been improperly handled and
issued a performance evaluation to [Ms. Goins] based on these
inadequacies that were not [Ms. Goins’s] doing but were already present
in the contracts when they were assigned”;
6

•

Ms. Goins received performance evaluations when no other employees
received such performance evaluations;

•

Ms. Goins was blamed for the errors of other employees while those
employees were “forgiven” for those errors;

•

Ms. Goins was placed on a performance improvement plan (“PIP”)
“without any justified basis”;

•

Ms. Goins “was forced to a meeting with a NHA lawyer to discuss [her]
performance,” and that lawyer “admitted to [Ms. Goins] that he saw
nothing wrong with her correspondence with a certain vendor and that
he did not understand why Shari Hamilton,” Ms. Goins’s supervisor,
“was reprimanding [Ms. Goins]”;

•

Ms. Goins was “forced to go to this 3 hour meeting at lunchtime without
eating lunch and was not given any advance notice of the meeting or
choice about the time of the meeting”;

•

Ms. Goins’s “union offered absolutely no assistance to her” and “has
since been the target of a police raid.”

(Compl. ¶11). The Complaint also alleged that Ms. Goins was required to pay to
attend a procurement conference even through Hamilton paid for a male
employee to attend. (Compl. ¶13).
On June 12, 2014, Ms. Goins received a PIP. (DE 135-1 at 3; DE 140-1
at 6). The PIP stated that Ms. Goins’s job knowledge and skills were “not
evident” and that her “work products require extensive review/revision by
supervisor.” (DE 135-10). Ms. Goins refused to sign the PIP. (Id.) On June 16,
2014, Ms. Goins took a leave of absence due to stress and never returned to
NHA. (DE 135-1 at 3; DE 140-1 at 6-7). Ms. Goins resigned from NHA in
September 2014. (DE 135-1 at 3; DE 140-1 at 7). Nevertheless, on September
29, 2014, NHA terminated Ms. Goins, stating as its reason that Ms. Goins had
exhausted her leave under the Family and Medical Leave Act (“FMLA”). (DE
135-1 at 3; DE 135-6; DE 140-1 at 7). She thereafter filed this action against
NHA. (DE 135-1 at 4; DE 140-1 at 9).
7

The crux of defendant NHA’s current motion for summary judgment on
Ms. Goins’s contract-related CEPA claims is its contention that Ms. Goins has
offered no proof of the allegations listed in the Complaint: i.e., that she engaged
in any whistleblowing activity, that she suffered any adverse employment
action, or that any alleged retaliatory animus caused Ms. Goins’s “separation
from employment.” (DE 135-19 at 9)
c. Plaintiff’s Prima Facie Case
i.

Prong One: Reasonable belief that employer's conduct violated a
law, regulation, or clear mandate of public policy

I find (and NHA essentially concedes for these purposes (see DE 146 at 77)), that Ms. Goins has submitted evidence that she reasonably believed the
tasks NHA asked her to perform violated the law. In her declaration, Ms. Goins
states that she “worked in the field of public contracts for many years” and
“was familiar with the local laws for public contracts.” (DE 141-1 at 4, Goins
Decl. ¶10). Further, Ms. Goins stated that she was asked to process contracts
that were in her opinion “too old” and “incorrectly prepared.” (Id. ¶11). Ms.
Goins also states that NHA personnel failed to follow proper procedures for
creating purchase orders and procedures for bidding on public contracts. (Id.).
ii.

Prong Two: Whistleblowing activity
I find there is a genuine dispute of material fact regarding whether Ms.

Goins engaged in whistleblowing activity. However, I will first dispose of Ms.
Goins’s argument that reporting illegal activity to coworker Ellen Fuentes
constitutes such whistleblowing activity.
Ms. Goins asserts that she told a fellow employee, Ellen Fuentes, that
Goins “had been instructed to process contracts that had not been sent out for
a proper bid.” (DE 140 at 7) Ms. Fuentes corroborates that account. (DE 141-2
at 20, Fuentes Transcript (“Tr.”)) However, informing a co-employee that an
employer was allegedly violating the law does not constitute whistleblowing
activity under CEPA. The Act defines protected activities more narrowly:
An employer shall not take any retaliatory action against an
employee because the employee does any of the following:
8

a. Discloses, or threatens to disclose to a supervisor or to a public
body an activity, policy or practice of the 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, including any violation involving deception of, or
misrepresentation to, any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity, or, in the case of an employee
who is a licensed or certified health care professional, reasonably
believes constitutes improper quality of patient care; or
(2) is fraudulent or criminal, including any activity, policy or practice
of deception or misrepresentation which the employee reasonably
believes may defraud any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity;
b. Provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any violation of
law, or a rule or regulation promulgated pursuant to law by the
employer, or another employer, with whom there is a business
relationship, including any violation involving deception of, or
misrepresentation to, any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity, or, in the case of an employee
who is a licensed or certified health care professional, provides
information to, or testifies before, any public body conducting an
investigation, hearing or inquiry into the quality of patient care; 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, including any violation involving deception of, or
misrepresentation to, any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity, or, if the employee is a licensed
or certified health care professional, constitutes improper quality of
patient care;
(2) is fraudulent or criminal, including any activity, policy or practice
of deception or misrepresentation which the employee reasonably
believes may defraud any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity; or
9

(3) is incompatible with a clear mandate of public policy concerning
the public health, safety or welfare or protection of the environment.
N.J. Stat. Ann. § 34:19-3 (emphasis added). The language of the statute does
not cover revelations to a coworker. See id.
Ms. Goins’s evidence of reports to her supervisor, however, stand on a
different footing. Goins submits that she informed her supervisor, Ms.
Hamilton, of a number of NHA practices that were violative of the law. (DE 140
at 7). In her declaration, Ms. Goins states that, on an unspecified date, she
“pointed out” problems with certain contracts to Ms. Hamilton. (DE 141-1 at 3,
Goins Decl. ¶12). Ms. Goins also presents an email she sent Ms. Hamilton on
April 15, 2014, informing Hamilton of “the rule regarding the advertisement of
bids” and stating that she believed the portal sent to prospective bidders would
not constitute “an official advertisement.” (DE 142-2 at 5, Ex. 23). Goins also
presents handwritten contemporaneous notes indicating that she complained
to Hamilton about the need for a business registration certificate with respect
to NHA’s contract with Survey Monkey. (DE 141-4 at 50, Ex. 6). Hamilton,
however, testified that Goins never complained to her about illegal conduct
related to NHA’s contract and procurement process. (DE 135-5 at 24, Ex. C,
Hamilton Tr. 206:8-16).
Only the alleged reports to Ms. Hamilton would constitute whistleblowing
activity under the statute. As to those, however, there is competing evidence in
the record. Thus, there is a genuine dispute of material fact with respect the
second element of Ms. Goins’s CEPA claim.
iii.

Prong Three: Adverse Action
NHA maintains that Ms. Goins’s CEPA claim must fail because she did

not suffer any adverse retaliatory employment action. (DE 146 at 9)
“CEPA defines ‘retaliatory action’ 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.’” Beasley v. Passaic Cty.,
873 A.2d 673, 684 (N.J. Super. Ct. App. Div. 2005) (quoting N.J. Stat. Ann. §
10

34:19-2(e)). The phrase “terms and conditions of employment” refers to matters
that “are the essence of the employment relationship.” Id. at 685 (quoting
Township of West Windsor v. Public Employment Relations Commission, 393
A.2d 255, 261 (N.J. 1978). The phrase is commonly understood to include,
inter alia,
length of the workday, Galloway Township Board of Education v.
Galloway Township Association of Educational Secretaries, 78 N.J.
1, 393 A.2d 207 (1978); increase or decrease of salaries, hours, and
fringe benefits, Piscataway Township Educational Association v.
Piscataway Township Board, 307 N.J.Super. 263, 271, 704 A.2d
981 (App.Div.), certif. denied, 156 N.J. 385, 718 A.2d 1214 (1985);
physical arrangements and facilities, Board of Education of City of
Englewood v. Englewood Teacher s' Association, 64 N.J. 1, 7, 311
A.2d 729 (1973); and promotional procedures, State v. State
Supervisory Employees' Association, 78 N.J. 54, 90–91, 393 A.2d
233 (1978).
Id. at 685-86.
“A pattern of conduct by an employer that adversely affects an
employee's terms and conditions of employment can qualify as retaliation
under CEPA.” Id. at 686; see also Green v. Jersey City Bd. of Educ., 828 A.2d
883, 891 (N.J. 2008) (noting that retaliation under CEPA “can include . . .
many separate but relatively minor instances of behavior directed against an
employee that may not be actionable individually but that combine to make up
a pattern of retaliatory conduct.”). However, “not every employment action that
makes an employee unhappy constitutes ‘an actionable adverse action.’”
Nardello v. Twp. of Voorhees, 873 A.2d 577, 581 (N.J. Super. Ct. App. Div.
2005) (quoting Cokus v. Bristol Myers Squibb Co., 827 A.2d 1173, 1180 (N.J.
Super. Ct. Law Div. 2002), aff'd, 827 A.2d 1098 (App. Div. 2003)). “[I]n order to
be actionable, an allegedly retaliatory act must be ‘sufficiently severe or
pervasive to have altered plaintiff's conditions of employment in an important
and material manner.’” El-Sioufi v. St. Peter's Univ. Hosp., 887 A.2d 1170, 1188
(N.J. Super. Ct. App. Div. 2005) (quoting Cokus, 827 A.2d at 1187)). The
Supreme Court of New Jersey has explained further: “What constitutes an
11

‘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.” Donelson v. DuPont Chambers Works, 20 A.3d
384, 392 (N.J. 2011).
In Donelson, the Court held, inter alia, that an adverse employment
action “is taken against an employee engaged in protected activity when an
employer targets [her] for reprisals—making false accusations of misconduct,
giving negative performance reviews, issuing an unwarranted suspension, and
requiring pretextual mental-health evaluations—causing the employee to suffer
a mental breakdown and rendering [her] unfit for continued employment.” Id.
In contrast, in Cokus, the Appellate Division affirmed the Law Division
“judge's conclusion, inter alia, that a negative employment evaluation,
unaccompanied by a tangible detriment, such as a salary reduction or job
transfer, is insufficient to rise to the level of an adverse employment action.” ElSiouffi, 887 A.2d at 1188; see also Cokus, 827 A.2d at 1099.
Here, Ms. Goins claims the following adverse employment actions:
the plaintiff was given burdensome work assignments, cheated out
of her overtime pay, denied sick pay, forced to do the work of a less
qualified person . . ., given an unprecedented performance
evaluation, given an unprecedented [PIP], the same day as she
received a verbal disciplinary notice. Her [PIP] criticized her skills as
that of a ‘novice’ even though this accusation had never before been
made against her in 20 months of working for NHA. Her work was
scrutinized and sabotaged, her every move was watched and she
had to account for and defend every decision she made. 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.
(DE 140 at 22-23). As explained, Ms. Goins’s overtime- related CEPA claim
was, and remains, dismissed. Section 1 n.2, supra. However, I find the
remaining alleged actions may constitute adverse employment action.

12

Ms. Goins states that she was given “problem contracts that others had
mishandled.” (DE 141-1 at 3, Goins Decl. ¶13). Even though the errors were
made by others, Ms. Goins was the only employee to receive a performance
evaluation and improvement plan. (Id.) It is true that an individual PIP that
does not change an employee’s pay, benefits, or employment status may not
constitute an adverse employment action. See Reynolds v. Dep't of Army, 439 F.
App'x 150, 153 (3d Cir. 2011); Mieczkowski v. York City Sch. Dist., 414 F. App'x
441, 447 (3d Cir. 2011) The New Jersey Supreme Court made clear, however,
that false accusations of misconduct giving rise to negative performance
evaluations may constitute an adverse employment action. Donelson, 20 A.3d
at 392. If the jury believes Ms. Goins’s account that she was intentionally given
“problem” contracts—i.e., purposely set up to fail—and then purposefully given
a PIP based on those contracts, then the jury may find that such false
accusations of misconduct constitute an adverse employment action. See id. So
these are, or at least could be, viewed as an adverse retaliatory employment
action.
Ms. Goins also submits that she was forced to use vacation days to
attend a continuing education conference, while other employees were not
required to use their vacation days to attend. (DE 141-1 at 3, Goins Decl. ¶13).
Ms. Goins further states that she was watched more closely than other
employees, her work was scrutinized, and her work was intentionally
sabotaged. (Id.) Such allegations may be relevant to establishing a pattern of
retaliatory conduct, see Green, 828 A.2d at 891, but there is no current need to
analyze them one by one. As I have already found, Ms. Goins has submitted
evidence sufficient to create a genuine issue of fact on the third element.
iv.

Prong Four: Causal Connection
A causal connection between the whistle-blowing activity and the adverse

employment action “can be satisfied by inferences that the trier of fact may
reasonably draw based on circumstances surrounding the employment action,”
such as “[t]he temporal proximity of employee conduct protected by CEPA and
13

an adverse employment action.” Maimone v. City of Atlantic. City, 903 A.2d
1055, 1064 (N.J. 2006). The evidence submitted by Ms. Goins is as follows.
On April 15, 2014, Ms. Goins emailed Ms. Hamilton stating that, in
Goins’s opinion, a certain bid advisement did not follow proper procedures. (DE
142-2 at 5, Ec. 23). Contemporaneous notes from April 17, 2014 indicate that
Goins informed Hamilton that there was a certification issue with NHA’s
contract with Survey Monkey. (DE 141-4 at 50, Ex. 6). Two months later, on
June 12, 2014, Ms. Goins received the PIP. As explained above, there exist
material issues of fact with respect to whether Ms. Goins engaged in whistleblowing activity and whether NHA engaged in false accusations of misconduct
in issuing the PIP to Ms. Goins. If a jury were to find that the email and
contemporaneous notes prove that Ms. Goins engaged in whistle-blowing
activity, and were to find Ms. Goins’s explanation for the PIP credible, then it
might find that a causal connection exists between the protected activity and
the adverse employment action two months later. See Maimone, 903 A.2d at
1064. On this issue, there is therefore a genuine issue of fact.
d. Legitimate, Nondiscriminatory Reason for the Adverse
Employment Action and Evidence that the Real Reason was
Retaliation
Once a plaintiff establishes a prime facie case of retaliation, the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason for
the alleged adverse employment action. Winters, 50 A.3d at 662. If the
employer articulates such a reason, the burden shifts to the employee to
demonstrate that the employer’s articulated reason is false and that the real
reason for the adverse employment action was retaliation. Id.
NHA submits that Ms. Goins was given a PIP as a result of her poor
performance. (DE 146 at 14) Further, NHA sent Ms. Goins a termination letter,
albeit after Ms. Goins resigned, because she had exhausted her leave under the
FMLA. (Id.). Counsel for Ms. Goins has not directly presented arguments
earmarking evidence pertaining to NHA’s articulated reason for the PIP. (See
generally DE 140). However, “[a]s recognized by the New Jersey courts, the
14

prima facie element of causation and the element of causation in the
subsequent ultimate proof stage of the case are often factually inseparable and
therefore a court may rely on evidence provided in the earlier phase in resolving
the latter.” Zaffuto v. Wal-Mart Stores, Inc., 130 F. App'x 566, 569 (3d Cir. 2005)
(citing Donofry v. Autotte Sys. Inc., 795 A.2d 260, 270 (N.J. Super. Ct. App. Div.
2001)). Therefore,
a plaintiff's circumstantial evidence of retaliation may include
evidence that “‘demonstrate[s] such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence, and
hence infer that the employer did not act for [the asserted] non[retaliatory] reasons.’”
Id. (quoting Kolb v. Burns, 727 A.2d 525, 531 (N.J. Super. Ct. App. Div. 1999)).
As explained above, Section II(c)(iii), Ms. Goins has demonstrated that a
material dispute of fact exists as to whether the PIP was actually predicated on
false accusations, rather than poor performance. In her declaration, Ms. Goins
submits that she was purposely assigned contracts with preexisting problems
and then penalized for those problems. (DE 141-1 at 3, Goins Decl. ¶13). That
is sufficient to create an issue of fact as to whether NHA’s articulated reason
for the PIP is a mere pretext for retaliation. Because there exists a genuine
dispute of material fact as to NHA’s motive in disciplining Ms. Goins, summary
judgment cannot be granted.
III.

Conclusion

For the reasons set forth above, I will deny NHA’s motion (DE 135) for
summary judgment. An appropriate order follows.
Dated: January 12, 2021
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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