GOINS v. NEWARK HOUSING AUTHORITY
Filing
98
OPINION. Signed by Judge Kevin McNulty on 3/29/2019. (nic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHERYL GOINS,
Civ. No. 15-2 195 (KM) (JBC)
Plaintiff,
OPINION
V.
NEWARK HOUSING AUTHORITY,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
This action arises from plaintiff Cheryl Coins’s past employment with
defendant the Newark Housing Authority (“NRA”). Ms. Goins has alleged that
NRA 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 NRA’s motion.
I.
Background’
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.
I address several housekeeping matters.
First, for ease of reference, certain key items from the record will be abbreviated
as follows:
[DE 1]
Complaint
=
“Cplt.”
“DSOF”
=
Ders Statement of Facts
[DE 85-li
“PRSOF”
=
Plaintiffs Response to DSOF
[DE 89-li
1
On March 27, 2015, Ms. Goins filed a Complaint against her former
employer, NRA. 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, NRA 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
Second, all exhibits filed with numbers, e.g., Ex. 7, are those of the plaintiff, Ms.
Goins; all exhibits with letters, e.g., Ex. B, are those of the defendant, NRA.
Third, Plaintiffs Exhibits 7 through 11 are filed jointly as one document (DE
89-6), but only Exhibit 7 is labeled. (DE 89-6 p. 1). Twill assume that what the
Plaintiff intended was the following:
Exhibit 7:
DE 89-6 pp. 1—2
Exhibit 8:
Exhibit 9:
DE 89-6 pp. 5—6
DE89-6pp. 9—11
Exhibit 10:
Exhibit 11:
DE 89-6 pp. 3—4
DE 89-6 pp. 7—8
Fourth, the pagination of Ms. Goins’s brief in support of summary judgment
(DE 93-1) is garbled. (Part of a prior draft may inadvertently have been left in the
document. (Compare DE 93-1 pp. 5—15 with Id. pp. 16—26.).) When citing to this brief,
I will use the electronic docketing page ID numbers.
2
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, NRA filed a
letter objecting to the untimely filing and seeking an extension to file a reply.
(DE 91). This Court granted NRA 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, NRA 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 NRA’s summary judgment motion. (Id.).
3
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 NRA’s motion for summary judgment.
On February 28, 2019, NHA filed its reply to the opposition, (DE 97). As
stated in Sections II.b.i and ii, infra, NRA’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 NRA to make a supplemental response.
b. Claims
The Complaint contains five counts, two of them now withdrawn. 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.
¶ 3 1—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). NRA paid some co-workers overtime in June 2014, but she
was never paid. (Id. ¶ 32). She also alleges that she asked NRA why she was
not paid but did not receive a response. (Id. ¶1 33—34). Further, Ms. Goins
alleges that NRA knowingly and willfully failed to pay her overtime wages,
which constituted a constructive discharge of her employment. (Id. ¶jJ 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 NRA 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, NRA retaliated against her.
(Id.
¶ 40—4 1). As an example, she alleges that NRA instructed her coworkers to
not ask her questions even though she had the knowledge to answer those
questions. (Id.
¶ 41a).
4
In Count Five, Ms. Goins brings claims for racial discrimination in
¶11 49—52). Ms. Coins
states that she is racially black and Native American. (Id. ¶ 50). First, she
violation of NJLAD and the Civil Rights Act,
§ 1981.
(Id.
alleges that NRA treated Ms. Coins’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. Coins 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 NRA is preventing her from
getting hired. (Id.
¶ 52).2
c. Hearsay
Before surveying the material facts, I clarify one issue of law. NRA makes
a general argument that “Summary Judgment should be granted because
Plaintiff’s opposition is based upon unsupported assertions, bare allegations,
speculation, and hearsay.” (DE 97 p.1).
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 inquin’ to determining if the out-of-court
statements Plaintiffs were relying on were admissible at trial.
Ms. Goins has expressly withdrawn Counts Three and Four. Count Three
claimed that NRA failed to accommodate her disability in violation of NJLAD. (See
PRSOF ¶ 28 (“Plaintiff withdrew her claim for failure to accommodate a disability”);
Cplt. 9 43—46). Count Four alleged sex discrimination in that a less qualified male
was promoted to a position over that of Ms. Coins. (Cplt. ¶ 47). (SeeDE 89 P. 25
2
(“Plaintiff, having had the benefit of discovery, [fowl 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.”).
5
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 outof-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 summan’ judgment. See Frilando v. Bordentown Driver Training
5th., LLC, No. 2:15-cv-02917-KM-JBC, 2017 WL 3191512, at *15 n. 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.) NRA’s blanket
objection, then, is not well taken. NRA’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.
6
d. Material facts3
NHA4 employed Ms. Qoins 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 NRA,
supervised Ms. Qoins. (Id. at
¶
4).5
i. Timekeeping and NHA’s overtime policy
NRA 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). NRA asserts that Ms.
Goins was aware of and understood that overtime policy. (DSOF
¶
8) (citing
Plaintiffs counsel has failed to provide several documents that are listed in her
declaration or relied upon in her statements of fact and briefs. See Fed. 1?. Civ. P.
56(c)(1) (2010 Advisory Committee Notes) (“Materials that are not yet in the recordincluding materials referred to in an affidavit or declaration--must be placed in the
record.”). Exhibit 32, though cited, is not filed. ft is said to be an oversized
“spreadsheet the plaintiff prepared of her overtime hours at the NRA.” (Foster Deci.,
DE 89-2 ¶ 32). “Audio Exhibits” I and 2, also cited, are not on the docket, and
transcripts do not appear there, either. If these documents have been furnished,
counsel is requested to direct the court to the relevant cover letters or other evidence
of submission.
NRA asserts that it is the largest public housing authority in New Jersey and
the eleventh largest in the nation. (DSOF ¶ 1). It claims a portfolio of 44 public
housing communities with a total of 8,000 rental units scattered throughout the city
of Newark. (DSOF ¶ 2).
5
Ms. Goins asserts that when Ms. Hamilton was absent, she was supervised by
others, including Kevin Medlin. (PRSOF ¶ 4) (citing Goins Dep. 98:2 1).
3
7
Gains Dep. 98: 1—25, 137:1—6, 293:13—25; 294: 1—25). Ms. Gains 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 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).° Pursuant to that investigation, Ms.
Here and elsewhere, Ms. Goins’s responding statement of facts argues that
some fact adduced by the defendant is “irrelevant.” (PRSOF ¶ 8; see also PRSQF ¶ 1,
2, 5). That is not the proper 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-cv2013, 2013 WL 1314744, at *6 (D.N.J. Mar. 28, 2013).
.
.
.
For example, In her deposition testimony, Ms. Goins states:
Q: Were you aware that there was a policy that you could not work overtime
without your supervisor’s approval?
A: Yes.
Q: And your initial testimony was that you didn’t know that initially, but at
some point you became aware that that was the policy.
A: Yes.
Q: Okay. So but you could not tell me approximately when that was that you
were made aware of that policy?
—
A: Correct.
(citing Ex. B, Goins Dep. DE 85-5 p. 98:4—15).
8
Ms. Goins states that she was t&d at the time of hiring that hers would be a
salaried position with no overtime. (PRSOF ¶ 11). She provides no citation for this
alleged fact.
While both parties identify the investigating agency as the “New Jersey
Department of Labor” (see SOF, PSOF ¶ 9), they may have misspoken. The
8
Goins was interviewed. (Id.
DOL investigator. (Id.
¶
¶
10). Ms. Goins provided a written statement to the
11). NRA asserts that, in her statement, Ms. Goins
“advised that she did not work overtime at NRA.” (SOP
¶
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
“Chen’l 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
investigation was, in fact, conducted by the United States Department of Labor
(“DOL”)—in particular, the Northern New Jersey District Office of the DOL. See Ex. M,
DE 85-16 p. 2 (stating on the letterhead “U.S. Department of Labor”); See Ex. Q, DE
97-2 p. 4 (listing the office address of the DOL as the Northern NJ District Office).
9
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. Qoins stated that “[if I
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 lI.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, NRA
had already determined to terminate her employment. (DSOF, PRSOF
¶
24).
However, they disagree as to when NRA’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
10
numbered supplemental statement of disputed material facts, with each fact
appropriately cited to the underlying record. See L. Civ. R. 56.1. 1 have
nevertheless surveyed this submission to glean such facts as may be material
to this summary judgment Opinion.’0
First, Ms. Coins alleges that, as a result of the DOL investigation, the
NRA and DOL entered into an agreement. Second, Ms. Coins alleges that she
worked overtime hours. Third, Ms. Goins alleges that a number of articles have
come out about her. Fourth, she alleges that NRA failed to send her to the
Rutgers Public Purchasing conference.
i. The DOL Agreement
Ms. Coins asserts that, as a result of the DOL investigation, on March
10, 2014, NRA and the DOL entered into a Back Wages and Compliance
Agreement (hereinafter, the “DOL Agreement”) in which NRA 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 NRA 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. Coins asserts that she worked overtime
during that period (but also, apparently, at some later time or times).
I highlight here that these supplemental facts are by no means a complete
account of every factual allegation in the fact section of Ms. Coins’s opposition brief. In
the brief, the argument section often fails to connect alleged facts to the elements of a
claim. In general, the issues not discussed in the brief will not be considered. Trauitz u.
Ne. Dep’t ILGMJ Health & Welfare Fund, 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 a Egg Harbor Twp. Bd.
of Educ., 82 F. Supp. 2d 327, 334 n.5 (D.N.J. 2000) (finding “casual reference” to a
claim results in waiver). For that reason, this Opinion, for the most pan, focuses its
review on the factual statements that Ms. Coins actually took the trouble to develop
into a claim. (As an example, I cite factual allegations related to Ms. Whitney, because
counsel has made no effort to connect them to a claim.) (See infra 1I,b.iv).
On a similar note, there are some factual contentions I have bypassed because
are mooted by other rulings. For example, I do not review many of Ms. Coins’s
they
kitchen-sink allegations of CEPA retaliation because that claim is being dismissed on
the simple fact that Ms. Goins has not identified the laws she believed NRA violated.
11
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. (DL 97 p. 4) (citing Lx.
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.” (DL 89
p. 13).”
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, DL 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.
Defendants provide a list of those who were awarded back overtime pay,
comprising 365 numbered entries, most of them redacted. Lines 143 through 146
contain surnames beginning with G, but Ms. Goins’s name is not among them. (DL
97-2 p. 12—13). The list suggests that Ms. Whitney and Mr. Medlin received overtime
payments, although the amount is redacted. (Id. pp. 18, 25).
11
Ms. Goins, with no citation to the record, asserts that NHA issued checks to
employees in June 2014. (DL 89 p. 13). On the same topic, Ms. Goins alleges that she
had overheard the payroll manager, Joe Botte, talking on the phone with his boss
Aimee (no last name provided), saying that Ms. Hamilton had wanted to deduct
something so Cheryl would not be paid overtime. (DL 89 p. 13 (citing Personal Notes,
Lx. 6, DL 89-5 p. 28). No further detail is given.
Ms. Goins cites her personal notes, which are dated Tuesday, June 3. (No year
is given, but the context suggests 2014, and in 2014, June 3 fell on amesday). June
3, 2014 falls both outside the two year period encompassed by the DOL Agreement,
and fell several months after the DOL Agreement was signed. Here, Ms. Goins tries to
connect the alleged fact that the checks were sent out in June with the alleged fact
that someone tried to manipulate her overtime in June. Since the DOL Agreement was
dated well before, and Ms. Goins’s name was not on it, any such connection appears
impossible.
12
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
6) (citing Goins Dep. p. 322—23; DE 89-6 pp. 1—
DE 89-5 p. 50). In her deposition, Goins testified that she had spoken with
personal diary entry. (PRSOF
2;12
¶
Ms. Hamilton ‘4about 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
(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
case
.
.
.“
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).’ 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 this contract be
Ms. Going cites to the e-mail dated April 23, 2013 in Exhibit 7. (See PRSOF
¶ 6). That email is located at DE 89-6 PP. 1—2.
13
1 will maRe the favorable assumption that at thai Ms. Goins would testify in
conformity with the journal entry. See Fed. R. Evid. 803(5). But see Gilmore u.
Federated Dept Stores, Inc., No. 06-cv-3020, 2008 WL 687260, at *2 n.3 (D.N.J. Mar.
11, 2008) (declining to consider personal journal entries on a motion for summary
judgment).
14
This e-mail, dated July 17, 2015, contains an original and two fonvarding
emails. The messages track as follows: the original, dated April 23, 2013 at 4:45pm, is
from “Cheryl Goins” to “Shari Hamilton,” the second, on the same date, is from Cheryl
Goins to a Yahoo account (presumably, her personal account); and the third, dated
July 17, 2015, is from that Yahoo account to a “cheiyl-nhamail.com (presumably,
her work account).
12
13
posted on the portal before leaving out for the day.” (DE 89-6 p. 1). But calling
something “proof’ in an email to oneself does not make it so.’5
Ms. Goins also asserts that despite its policy, NRA “suffered or
permitted” her to do work outside of regular hours. As an example, Ms. Goins
points to an e-mail from herself to Ms. Hamilton, dated October 8, 2013 at
5:02pm. (DE 89-2
8) (citing Ex. 30, DE 89-9 p. 7). (This email, too, Ms. Goins
forwarded to her own email accounts.) Ms. Goins’s email states, “attached are
¶
the files and current prevailing wages.” Ms. Goins then describes the work
required for the files, followed by “Don’t worry, I did punch out on time. Just
wanted to send you this stuff before going.” (DE 89-9 p. 7). I will assume that
Goins would testify at trial that she sent Ms. Hamilton a work e-mail after she
had clocked out for the day. (Again, I note that neither party presented the
Court with full data on Ms. Goins’s hours worked, but I note that the e-mail is
time-stamped 32 minutes after 4:30pm, when Ms. Goins’s shift would have
ended.). In further support, Ms. Goins points to Ms. Hamilton’s deposition, in
which Ms. Hamilton admits to an instance in which Ms. Goins stayed past her
scheduled end time. (PRSOF
¶
8) (citing Ex. 4, Hamilton Dep., DE 89-3 pp. 42—
101 (219: 1—25 therein)).
This evidence is frankly weak. Nevertheless, it is sufficient to create an
issue of material fact as to whether Ms. Goins worked at least very small
amounts of overtime for purposes of the FLSA. As is typical, however, Ms.
According to Ms. Goins, Ellen Fuentes testified that Goins “did stay and work
late at Ms. Hamilton’s request,” (PRSOF ¶ 8) (citing Ex. 5, Fuentes Dep., DE 89-4 p. 15
(56:1—25 therein)). That is not a correct characterization of the cited testimony of
Fuentes:
15
[Question by Ms. Foster]: okay. Do you ever remember Ms. Hamilton directing
Ms. Goins to stay late and work?
Witness: I’ve seen her come over to her area with paperwork and I don’t know
what the conversation was. Was it, You would have to stay to complete this or
I know she would stay late, you know, at times if she had to complete
something.
—
—
(Ex. 5, Fuentes Dep., DE 89-4 p. 15 (56:7—16 therein)).
14
Coins fails to close the loop—i.e., she does not direct the Court to pay records
showing that she was not paid overtime wages for those particular days.
iii. Newspaper articles
In her briefing, Ms. Coins asserts that newspapers published false
articles about her after she filed her Complaint. (DE 93-1 p. 13; DE 89 p. 23).
Although NHA lodges a hearsay objection, Ms. Coins is not seeking to
introduce these articles for the truth of the matter asserted therein. On the
contrary, she is asserting that they are false. Looking ahead, however, she has
failed to connect these articles to NHA in any way. I discuss those articles
further at Section II.b.ii.1.b, infra.
iv. Public purchasing conference
As discussed at Section II.b.ii.1.b, infra, Ms. Coins asserts in her briefing
that defendants refused to pay for her attendance at the Rutgers Public
Purchasing Conference and required her to take a vacation day to attend. (DE
93-1 pp. 8—9) (citing Ex. 7, DE 89-6 p. 1). Other co-workers, she says, such as
Kevin Medlin and Dashon Parker, had the same or similar classes paid for. No
basis for Coins’s knowledge of this fact is stated.
For the proposition that Mr. Parker had his classes paid for, Ms. Coins
provides no record support at all.
For the proposition that Mr. Medlin’s continuing education classes were
paid for, Ms. Coins cites Ex. 6, DE 89-5 “CC 889”. That page number does not
exist in Exhibit 6, and I will not sift through the nearly 50 pages of handwritten
notes to find whatever counsel believes she is referring to. Ms. Coins also cites
to Ms. Hamilton’s deposition. Hamilton testified that, as Director of
procurement and contracts, she was required to maintain certification. (Ex. R,
DE 97-3, p. 152). For an employee who was merely a procurement coordinator,
certification not required, although it was preferred. (Id.). Hamilton testified
that she asked Kevin Medlin, who was not seeking recertification, to attend the
Rutgers Public Purchasing Conference on her behalf and then report back what
he had learned. (Id.; see also Ex. 4, Hamilton Dep., DE 89-3 pp. 42—10 1,
15
(151:12—21 therein)). At some point in 2014, Mr. Medlin, who was on Ms.
Goins’s team, was promoted to senior procurement analyst. (see Hamilton
Dep., Ex. C, flED 85-6 p. 168:12—17) No connection is drawn between that
promotion and the Rutgers Public Purchasing Conference, nor is it stated
whether the promotion occurred before or after the conference.
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 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.5. 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,
16
657 (3d Cir. 1990); see also Gleason v. Not-west 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 junT 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 parur’s case necessarily’ renders all other facts immaterial.”
Katz v. Aetna Cas. & Stir. 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.
Credibility determinations are the province of the fact finder. Big Apple BMW,
Inc.
ii.
BMWoJ 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
t.’.
Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986).
b. Analysis
I will consider Ms. Goins’s remaining claims in the following order. In
Section II.b.i, I consider her claim for FLSA overtime payments. In Section
H.b.ii, I consider her claim of FLSA retaliation. In Section IJ.b.iii, I consider her
claim of CEPA retaliation. Finally, in Section ll.b.iv, I consider her claims of
racial discrimination.
i. FLSA uncompensated overtime
NHA argues that Ms. Goins’s FLSA overtime claim cannot survive,
primarily citing her sworn statement to the DOL that she did not work
overtime. (DE 85-2 p. 6). Ms. Goins’s opposition brief provides no legal
argument in support of her FLSA overtime claim. (DE 89 p. 24). Instead, she
17
points the Court to her own motion for partial summary judgment. That
motion, recall, I have terminated for extreme tardiness, in violation of court
orders that granted counsel for Ms. Goins’s own requests for adjournments.
(DE 96). In that motion, Ms. Qoins charges the defendants with spoliation
because they have failed to produce her overtime timesheets, which would have
demonstrated her hours worked and supported her claim. (DE 93-1 pp. 9 11).
Not wishing to visit the sins of the attorney on the client, I have addressed the
—
spoliation argument at Section II.b.i.2, infra.
“The FLSA establishes federal minimum-wage, maximum-hour, and
overtime guarantees that cannot be modified by contract.” Davis v. Abington
Memi Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Genesis Healthcare
Corp. v. Symczyk, 569 U.S. 66, 69 (2013)). Generally, an employer must pay its
employees at least a minimum hourly wage for work performed and must pay
one and one-half times the employee’s regular wage for hours worked in excess
of forty hours per week. 29 U.S.C.
§
206, 207. While the FLSA does not define
work, Department of Labor regulations settle that:
Work not requested but suffered or permitted is work time. For
example, an employee may voluntarily continue to work at the end
of the shift. He may be a pieceworker, he may desire to finish an
assigned task or he may wish to correct errors, paste work tickets,
prepare time reports or other records. The reason is immaterial.
The employer knows or has reason to believe that he is continuing
to work and the time is working time.
29 C.F.R.
§
785.11. See Clarke v. Fliklnt7 Corp., No. 17-cv-1915, 2018 WL
3930091, at *2 (D.N.J. Aug. 16, 2018) (Chesler, J.) (citing 29 C.F.R. § 785,11 in
an FLSA action).
Section 2 16(b) of the FLSA grants employees the right to bring an action
to recover damages for uncompensated overtime work. However, “an individual
employees right to bring an action pursuant to
§
216(b) terminates once that
employee is named in a complaint filed by the Secretary of Labor pursuant to
216(c) or 217” Ahmad v. Daniyal Enterprises, LLC, No. CV 2:l4-l142-SDWSCM, 2015 WL 6872481, at *3 (D.N.J. Nov. 9, 2015). To recover overtime
18
§
compensation under the FLSA, “an employee must prove that he worked
overtime hours without compensation, and he must show the amount and
extent of his overtime work as a matter ofjust and reasonab’e inference.” Davis
v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (internal citations
omitted).
1. DOL Statement
NRA argues that because Ms. Goins stated to the DOL that she did not
work overtime, and because she was aware of the NHA overtime policy, her
FLSA claim for payment of overtime wages must fail. (DE 85-2 p. 7). Ms. Goins
counter-argues that her statement to the DOL does not preclude her claim
because (a) it was ambiguous, and (b) it was given some eighteen months
before her resignation. (DE 93-1 p. 1 1_12).16
Ms. Goins argues that her own statement to the DOL is inherently
ambiguous because “overtime” can have two meanings—either pay for work
after her scheduled hours or simply work after her scheduled hours. I do not
find that the sentence “I never really worked overtime” is infected with that
ambiguity.
Because Ms. Goins has testified that she “worked past her normal hours”
there may be an issue of fact as to that narrow issue—at least as to the period
following the DOL settlement, if not before. (Goins Dep. 143:1—25). Such
testimony, at trial, might of course be subject to effective impeachment with
the earlier DOL statement. More fundamentally, however, it falls short of Ms.
Goins’s obligation to “show the amount and extent of [her] overtime work as a
matter of just and reasonable inference.” Davis, 765 F.3d at 241. As noted at
Section T.f.i, supra, neither party has provided the Court with anything specific
Furthermore, Ms. Goins asserts that she “testified that no one fully explained to
her the NHA overtime policy at the time she had the interview or early in her
employment.” (DE 93-1 p. 12) (citing Ex. B, Goins Dep. DE 85-5 pp. 97—98). What
Coins actually said in her deposition, however, is that she was not aware of the policy
initially, but learned about it at some later time that she could not specify. (Id. p.
98:4—15).
19
regarding Ms. Gains’s total hours worked, the amount of overtime hours
worked, preapprovals if any, and overtime pay, if any.
If that were all, summary judgment for the defendant might be
appropriate.
2. Spoliation
Ms. Goins also argues, however, that “Defendant failed to produce the
overtime timesheets that support plaintiffs claim, so the court must accept the
plaintiffs records of her hours which she has provided in the spreadsheet.” (DE
93-1 p. 9) (The spreadsheet is not provided, however.) NRA, as employer, has
failed to come forward with evidence of hours worked and wages paid. I do not
suggest that it has the burden of proof—it doesn’t—but this is evidence NRA
might be expected to possess and produce in discovery. NRA’s failure to
maintain overtime slips, says Ms. Coins, constitutes spoliation. (DE 93-1 p.
10—11). It follows that a fact finder may draw an adverse inference against the
spoliator. (DE 93-1 pp. 9—11).
“Spoliation is usually referenced in instances where evidence has been
altered or destroyed.” Bull v. United Parcel Serv., ha, 665 F.3d 68, 73 (3d Cir.
2012) (internal citations omitted). However, “under certain circumstances,
nonproduction of evidence is rightfully characterized as spoliation.” Id. Thus
“when the contents of a document are relevant to an issue in a case, the trier of
fact generally may receive the fact of the documents nonproduction or
destruction as evidence that the party that has prevented production did so out
of the well-founded fear that the contents would harm him.” Brewer v. Quaker
State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.1995) (internal citations
omitted) (emphasis added).
For a Court to find spoliation against a party, four factors must be
present: (1) “the evidence was in the party’s control; [2] the evidence is relevant
to the claims or defenses in the case; [3] there has been actual suppression or
withholding of evidence; and, [4] the duty to preserve the evidence was
reasonably foreseeable to the party. Bull, 665 F.3d at 73. Once found,
20
spoliation is punishable by sanctions, including the spoliation inference. See
Schmid u. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78—79 (3d Cir. 1994).’
To show that defendants have failed to produce overtime timesheets, Ms.
Goins points the Court to Exhibit 16, an e-mail from defendant’s counsel, Mr.
Gregory Preston to plaintiff’s counsel Ms. Elizabeth Foster. (DE 93-1 p. 11
(“Here, there is no dispute that the overtime slips existed or that they were
requested by the plaintiff, and NHA’s la;yer asserted that the slips could not
be found.” (citing Ex. 16, DE 89-7 p. 32)). In the e-mail, dated August 5, 2016,
Mr. Preston states: “[r]egarding the overtime slips, my client is undertaking a
search for same.” (Exhibit 16, DE 89-7 p. 32. See also Foster Decl. DE 89-2
¶ 32 (“Ex. 16 is an email from Greg Preston, Esq. to Liz Foster stating that NRA
cannot find the overtime slips that the plaintiff requested.”)). Fact discovery
closed on April 14, 2017. (DE 65). Granting every indulgence, this might be
enough to raise an issue of fact regarding spoliation. If NRA is found to have
The Third Circuit provides a helpful summary on the rationale of the spoliafion
inference:
Since the early 17th century, courts have admitted evidence tending to show
that a party destroyed evidence relevant to the dispute being litigated. Jamie S.
Gorelick, Steven Marzen and Lawrence Solum, Destmction of Etridence, § 2.1
(1989). Such evidence permitted an inference, the “spoliation inference,” that
the destroyed evidence would have been unfavorable to the position of the
offending party. As Judge Breyer put it in Nation-wide Check Corp. u. Forest
Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.1982), “the evidentiaiy
rationale [for the spoliation inference] is nothing more than the common sense
observation that a party who has notice that [evidencej is relevant to litigation
and who proceeds to destroy [evidence] is more likely to have been threatened
by fthat evidenceJ than is a party in the same position who does not destroy the
document.” As Judge Breyer also noted, the spoliation inference is also seen as
having “prophylactic and punitive effects.” Id. The admissibility of spoliation
evidence and the propriety of the spoliation inference is well established in most
jurisdictions, including Pennsylvania. See e.g., Nation-wide Check C’orp., 692
F.2d 214 (1st Cir. 1982); Mensch a Bic Corp., 1992 WL 236965 (E.D.Pa.1992)
(citing Pennsylvania cases); Gorelick, et aL, supra, § 2.24.
Schmid, 13 F.3d at 78. See also Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp.
2d 332, 335 (D.N.J. 2004) (sanctioning a defendant with the spoliation inference).
17
21
destroyed or failed to produce the timesheets, an adverse inference might be
justified. 18
We have not, however, heard NRA’s side, and the reason is not hard to
find. Ms. Goins did not assert her spoliation argument in response to NRA’s
summary judgment motion, but only in her own belated motion for summary
judgment, which now has been administratively terminated.
I will therefore provisionally deny summary judgment on the overtime
claims, and grant NHA the opportunity to respond.19
ii. FLSA retaliation
In Count One, Ms. Gains also makes a claim for retaliation under the
FLSA. Under the FLSA, it is unlawful for any person “to discharge or in any
other manner discriminate against any employee because such employee has
flied any complaint or instituted or caused to be instituted any proceeding
under or related to this chapter, or has testified or is about to testify in any
such proceeding, or has served or is about to serve on an industry committee.”
29 U.S.C.A.
§
215(a)(3).
Unlawful retaliation is analyzed within the McDonnell Douglas burden-
shifting framework. See generally McDonnell Douglas Corp. v. Green, 411 U.s.
792 (1973); see also Cononie v. Allegheny Gen. Hasp., 29 Fed. App’x 94, 95 (3d
Cir. 2002) (FLSA claims analyzed pursuant to McDonnell Douglas rubric).
Under the McDonnell Douglas framework, “the employee carries the initial
I note that Ms. Goins has, herself, supplied several copies of some overtime
timesheets. (Exhibit 34, DE 93-2 pp. 2—17). These Umesheets are accompanied by,
what appears to be, time sheets from scattered weeks throughout 2012 and 2013. (Id.)
Given the spoliation allegation, I presume she provided these sheets from her own
personal records, not those of NRA.
18
19
Ms. Goins also argues that the court “must accept” the calculation of overtime
hours in “the spreadsheet.” (DE 93-1 p. 9) (citing to nothing in the record). As outlined
above, Ms. Goins cites. hut has not submitted, such a spreadsheet, which she refers
to as “Exhibit 32.” (See DE 93-3 ¶ 8; DE 89-2 ¶ 32). Nowhere else in her papers does
Ms. Goins offer any information regarding her specific hours worked. I need hardly
add, of course, that insertion of numbers into a spreadsheet, long after the event, does
not necessarily turn them into evidence.
22
burden of establishing a prima facie case of retaliation.” Lowenj v. Yoram Koby
*3 (D.N.J. Jan. 26,
& JYK, Inc., No. 1 1-cv-5088 (KM), 2016 WL 324948, at
2016). If the employee establishes a prima facie case, the burden then shifts “to
the employer to articulate some legitimate, nondiscriminatory reason” for the
*3• If the employer
adverse employment action. Lowery, 2016 WL 324948 at
can do so, “the presumption of retaliatory discharge created by the prima facie
case disappears and the burden shifts back to the employee.” Id. (internal
citations omitted). The employee then must persuade the “fact finder that the
employer’s reason was false and that retaliation was the real reason.” Id. The
ultimate burden of proof remains with the employee. Id.
1. Prima fade case
To assert a claim for retaliation under the FLSA, the employee must
prove three elements: (1) the employee engaged in protected employee activity;
(2) adverse action by the employer either after or contemporaneous with the
employee’s protected activity; and (3) a causal connection between the
employee’s protected activity and the employer’s adverse action. Marra u. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). I address each below.
i.
Protected activity
NHA argues that Ms. Qoins has failed to prove that she engaged in an
activity protected by the FLSA. (DE 85-2 p. 8). In the Complaint, Ms. Goins’s
retaliation claim is based on her alleged complaints to the DOL. (Cplt. ¶J 37,
38). In her briefing, however, she has shifted her ground. (DE 89 pp. 22—24);
Rather than arguing that NRA retaliated against her for complaining to the
DOL, she now asserts that NRA retaliated against her for participating in the
DOL investigation. (Id.). That participation consisted of the sworn statement to
the DOL.2°
This is the same statement which, for other purposes, she says may have been
forged or altered.
In her briefing, Ms. Qoins also claims that she engaged in protected activity
when she allegedly complained to Sybil Bryant that she had not been paid a special
overtime payment like her co-workers. (DE 93-1 p. 10). In effect, Ms. Goins attempts
20
23
Under the FLSA, a plaintiff has engaged in a protected activity if she has
“filed any complaint or instituted or caused to be instituted any proceeding
under or related to this chapter, or has testUied or is about to testzfy in any
such proceeding, or has served or is about to serve on an industry committee.”
29 U.S.C.
§
2 15(3) (emphasis added). Defendants argue that, under that
definition, Ms. Goins’s interview with the DOL is not a protected activity. I find,
however, that making this statement to DOL was protected activity for
purposes of the FLSA.
“In interpreting a statute, the starting point is the language of the statute
itself.” United States v. Gollapudi, 130 F.3d 66, 70 (3d Cir. 1997) (internal
citations omitted). “In most situations, the plain language rule is the preferred
method of statutonr interpretation[,]
.
.
.
and [ojnly the most extraordinary
showing of contrary intentions in the legislative history will justify a departure
from that language. Id. (citing Garcia v. United States, 469 U.S. 70, 75, 105
S.Ct. 479, 482—83, 83 L.Ed.2d 472 (1984)).
When engaging in interpretation of the FLSA, “this court must bear in
mind
.
.
.
the twin principles that the Act is a remedial statute which ‘must not
be interpreted or applied in a narrow, grudging manner,’ Tennessee Coal, Iron
& R.R. Co. v. Muscoda Local, 321 U.S. 590, 597 (1944), and that exemptions
from FLSA coverage ‘are to be narrowly construed against the employers
seeking to assert them,’ Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
to bring a new claim for retaliation in her brief, asserting that NRA retaliated against
her for complaints she made after the DOL investigation concluded and her co
workers had received payments for overtime. If Ms. Goins wishes to amend her
complaint, she may seek leave to do so pursuant to Fed. R. Civ. P. 15(a)—although
such a motion comes awfully late, and may not be granted. She may not, however, use
her response to a summary judgment as a forum to raise new claims. See Bey v.
Daimler Chrysler Set-vs. ofN. Am., No. CIV. 04-6 186, 2006 WL 361385, at *11 (D.N.J.
Feb. 15, 2006) (“[C]lahns [that] were not alleged in the complaint
cannot be raised
for the first time in opposition to a motion for summary judgment.”). Because Ms.
Goins does not plead this claim in her Complaint, I will not consider it on summary
judgment. Anderson v. DSM N. V., 589 F. Supp. 2d 528, 534 n. 5 (D.N.J. 2008)
(Greenaway, J.) (declining to consider a new breach of contract claim on summary
judgment when the plaintiff failed to plead that “particular claim” in the complaint).
...
24
(1960).” Krause v. Cherry Hill Fire Dist. 13, 969 F. Supp. 270, 274 (D.N.J.
1997). See also Smith v. Johnson & Johnson, 593 F.3d 280, 284 (3d Cir. 2010)
(noting that the FLSA is a remedial statute to be construed broadly). The
purpose of the retaliation protections afforded under the FLSA was to
encourage employees to feel “free to approach officials with their grievances
[for it needs no argument to show that fear of economic retaliation might often
operate to induce aggrieved employees quietly to accept substandard
conditions.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960).
Here, the statute is of little help; neither 29 U.S.C.
definitions section of the FSLA, see 29 U.S.C.
§ 215 nor the
§ 203, defines
“testify”
or “about
to testib’.” Black’s Law Dictionary (10th ed. 2014) defines “testify” as “to give
evidence as a witness” or “to bear witness,” although it has no entry for the
phrase “about to testify.” I look to the case law.
In Bowen v. M. Caratan, Inc., a court in the Eastern District of California
held that an employee engaged in a protected activity’ when she had been
identified as a witness in a DOL audit, even though she did not actually
interview in the audit nor had she given her employer notice of a complaint.
Bowen v. M. Caratan, Inc., 142 F. Supp. 3d 1007, 1022 (E.D. Cal. 2015)
(O’Neill, Chief J.). There, the Court held that “the [pjlaintiff was ‘about to testify
for the DOL audit.’ Such an audit is an FLSA-related proceeding for the
purposes of 215(a)(3).” Id.
On a similar interpretation issue, in Kasten a Saint-Gobain Performance
Plastics Coip., the Supreme Court considered the following when reaching the
holding that oral complaints are protected under the FLSA:
Given the need for effective enforcement of the National Labor
Relations Act (NLRA), this Court has broadly interpreted the
language of the NLRA’s antiretaliation provision—”filed charges or
given testimony,” 29 U.S.C. § 158(a)(4)—as protecting workers who
neit her filed charges nor were “called formally to testify” but simply
“participate[d] in a FNational Labor Relationsj Board investigation.”
NLRB v. Scrivener, 405 U.S. 117, 123 (1972) (emphasis added). The
similar enforcement needs of this related statute argue for an
interpretation of the word “complaint” that would provide “broad
25
rather than narrow protection to the employee,” id., at 122, 92
S.Ct. 798 (and would do so here without pressing statutory
language to its limit).
Kasten, 563 U.S. 1, 13(2011) (citingNLRflv. Scrivener, 405 U.S. 117, 123
(1972) (emphasis in original)). There, the Court emphasized the need to
interpret the statute broadly. Moreover, the Court noted that an antiretaliation
provision in the NLRB protected employees who had merely participated in the
enforcement agency’s investigation. Here, examining the term “testify,” I am
called to apply a similarly broad interpretation to the antiretaliation provision
of the FLSA.
Here, Ms. Goins did actually act as a witness, in the broad sense, in
connection with a DOL audit. Like many other employees, she submitted a
sworn statement pertaining to her overtime. That is protected activity for
purposes of an FLSA retaliation claim.
U.
Adverse employment action
Defendants argue that Ms. Coins did not suffer an adverse employment
action subsequent to her DOL interview in March 2013. (DE 85-2 pp. 8—9).
Under the FLSA, retaliatory conduct rises to the level of a materially adverse
action if the conduct alters the “employee’s compensation, terms, conditions or
privileges of employment, deprives him or her of employment opportunities, or
adversely affects his or her status as an employee.” Robinson u. City of
Pittsburgh, 120 F.3d 1286, 1301 (3d Cir. 1997); see also Lowenj v. Yoram Koby
& JYK Inc., No. CV 11-5088 (1CM), 2016 WL 324948, at *4 (D.N.J. Jan. 26,
2016) (McNulty, J.).
Ms. Coins argues that she suffered four adverse employment actions:
NHA’s failure to pay for her attendance at the Rutgers Public Purchasing
conference; the appearance of newspaper articles and internet postings; her
separation from employment at NHA in September 2014; and failure to pay her
overtime, allegedly resulting in a constructive discharge.
(1) There is evidence that NHA did not pay for Ms. Coins to attend the
Rutgers Public Purchasing Conference and required her to take a vacation day
26
to attend. (DE 93-1 pp. 8—9) (citing Ex. 7, DE 89-6 p.
1)).21
This, says NRA, was
not an adverse employment action. (DE 97 pp. 6—7). 1 agree.
To begin with, Ms. Coins concedes that “under the FLSA.
.
.
government
employers need not pay for training time.” (DE 89 p. 24 n. 27). It is at best
unclear whether it was necessary for Ms. Coins to attend this conference to
maintain her certificate.22 Nor has Ms. Coins established that the certificate
was required for her job as contract coordinator.
23
The impact, if any, on Ms. Coins’s employment is too slight to justify a
jury finding that failure to pay for this training session was an adverse
employment action.
(ii) Ms. Coins attaches articles that appeared in newspapers after she
filed her Complaint. (DE 93-1 p. 13; DE 89 p. 23). One, she says, incorrectly
states that she was terminated from NRA, rather than that she quit. She
believes that either Ms. Bryant or Ms. Hamilton must have been behind that
false statement, rendering it an adverse employment action. (DE 93-1 pp. 14).
Another article, she contends, misrepresented a previous lawsuit she brought
against another employer (not NRA);24 that article, she says, has “placed her in
Ms. Coins’s counsel also cites to “main brief pp. 7. 23” to support her assertion.
(DE 93-1 pp. 9). 1 sIn not certain which brief she is referring to, but in any event,
statements in briefs are not evidence.
21
Ms. Coins contends that she “had to comply with continuing education
requirements in order to maintain her certification as a registered public purchasing
specialist in New Jersey.” (DE 89 p. 19 n. 25) (citing to
https: / / cgs.rutgers.edu / programs! publicpurchasing#ContEd). However, the very
same website she cites states, “continuing education credit can be earned by
attendance at seminars, workshops, classes or conferences and through numerous
methods of professional development.” Ms. Coins’s allegation requires further support
and explanation.
23
She contends that coworkers were paid to attend continuing education classes.
to coworker Dashon Parker, she has submitted no such evidence. As to coworker
As
Kevin Medlin, her evidence is equivocal at best. See Section I.e.iv supra. Here,
however, the issue is not whether the employer was evenhanded; it is whether the
action rose to the level of an adverse employment action.
22
Ms. Foster represented Ms. Coins in that lawsuit, which settled for $61,500 the
same month that Ms. Coins resigned from NRA. (Ex. F, DE 85-19)].
24
27
a bad light and has made it impossible for her to find work in her chosen field
for which she is highly trained, (DE 89 p. 23).
There is no evidence whatever that anyone at NHA was behind the
allegedly false statements in these articles. Moreover, the articles apparently
appeared after Ms. Gains left NRA. No reasonable juror could find that they
constituted “adverse employment actions.”
(iii) NRA allegedly did not pay Ms. Goins overtime throughout her
employment, and in particular failed to pay her the “one time [sic] overtime
payment that all members of the department received in June 2014.”. (DE 93-1
p. 14). Once again, NRA does not address these arguments, no doubt because
they were raised not in response to NRA’s motion, but only in Goins’s belated
summary judgment motion, now terminated. (DE 97).
As found above, there is an issue of fact whether NHA failed to pay Ms.
Goins wages for at least some minimal amount of overtime that she worked.
Failure to provide compensation, if proven, would rise to the level of an adverse
employment action. See Robinson, 120 F.3d at 1301.
Ms. Goins also claims, less persuasively, that the failure to pay overtime
wages amounted to a constructive discharge. “To prove a constructive
discharge claim a plaintiff must show working conditions so intolerable that a
reasonable person would have felt compelled to resign.” Pa. State Police v.
Suders, 542 U.S. 129, 147 (2004). In some circumstances, failure to pay
overtime might amount to constructive discharge, while in others it would
not—e.g., if the plaintiff were owed for 15 minutes of overtime work, that
probably would not be regarded as tantamount to a discharge. To the extent
Ms. Goins has claimed unpaid overtime wages, she has utterly failed to
establish that the amounts involved are so significant as to amount to a
constructive discharge. Since failure to pay overtime wages may in itself be an
adverse employment action, however, the constructive discharge component
may be superfluous for present purposes.
28
iii.
Causation
The third step in a prima facie retaliation claim is a sufficient showing of
causation, i.e., a link between the protected activity and the adverse
employment action that followed. Here, the claim falls apart. The evidence as
presented does not raise a plausible inference of causation.
NRA argues that “Ms. Goins[’s] adverse employment claim lacks merit
because she was separated from her employment with NRA
.
.
.
eighteen
months after she gave her statement to the [DOL]” in March 2013. (DE 97 p. 7).
I agree that the connection, absent any other corroboration, is too attenuated.
The failure to include her in the NRA-wide, one-time overtime pay award
in June 2014 occurred some fifteen months after Ms. Goins’s statement to the
DOL, so temporal proximity does not favor an inference of causation. But there
is a more fundamental problem: the retaliation theory makes no sense. Many
workers—hundreds, apparently—claimed that they had worked overtime
without pay, and in June 2014 they received DOL-ordered compensation. Ms.
Goins claims that she was omitted from the list of employees to be
compensated in retaliation for her having made a statement to the DOL. This
does not distinguish her case from those of the other employees (who did
receive compensation). And the reason she did not receive compensation is
clear: she did not claim it. In her statement to the DOL, she said that she had
not worked overtime. The content of her statement also makes nonsense of the
notion that the employer would retaliate; far from blowing the whistle on her
employer’s overtime practices, she exculpated NHA by informing DOL that she
had not been denied overtime pay.
The only remaining form of “retaliation”—the alleged failure to pay her
overtime (after the period of the DOL investigation, presumably) adds nothing.
If it occurred, it is actionable under the FLSA. See supra. The retaliation theory
is superfluous.
I therefore hold that a prima facie case of FLSA retaliation has not been
established, and award summary judgment to NRA on this claim.
29
iii. CEPA
NRA moves to dismiss Count Two, Ms. Goins’s CEPA retaliation claim,
on summant judgment. (DE 85-2, p. 10—16). In the original complaint, Ms.
Qoins alleged that she was retaliated against because she objected to illegal
orders from her superiors. (DE 1
¶J
39_42).25
CEPA retaliation claims are analyzed under the usual McDonnell
Douglas framework, discussed at Section II.d, supra. See Winters v. N. Hudson
Regi Fire & Rescue, 50 A.3d 649, 662 (N.J. 2012) (McDonnell Douglas
framework applies to CEPA claims). 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
ii.
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.
.
.
.
.
.
.
Initially, I must clarify that thschminaton’ failure to promote will not be
considered as part of this claim. In the course of withdrawing her NJLAD
discrimination claim, Ms. Goins casually lets drop that it nevertheless constituted
CEPA retaliation:
25
The plaintiff having had the benefit of discovery, withdraws her claims of sex
discrimination -failure to promote and instead believes her failure to be
promoted was as a result of retaliation against her for CEPA protected
complaints, as discussed above.
(DE 89 p. 25). Absent a successful motion to amend the complaint, Ms. Coins may not
state a new claim as a means of escaping summary judgment. See Fed. I?. Civ. Pro.
15(a). See also Beg v. Daimler Chnjsler Sews, of N. Am., No. 04-cv-6 186, 2006 WL
361385, at *11 (D.N.J. Feb. 15, 2006) (“(Cjlaims [thati were not alleged in the
complaint
cannot be raised for the first time in opposition to a motion for
summary judgment.”). I win not consider her retooled failure-to-promote claim, and
now turn to whether Ms. Coins has otherwise stated a prima facie case for CEPA
retaliation.
.
.
.
30
N.J.S.A. 34:19-3(a)(1). 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.S.A. 34:19-2(e).
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).
Right at the outset, Defendants note, Ms. Goins has failed to identify any
law that she believed NRA had violated. To bring a CEPA claim, “the plaintiff
must identify the authority that provides a standard against which the conduct
of the defendant may be measured.” Hitesman v. Bridgeway, Inc., 93 A.3d 306,
320 (N.J. 2014). See also Trzaska a L’Oreal USA, Inc., 865 F.3d 155, 159—60
(3d Cir. 2017), as amended (Aug. 22, 2017) (“To satisfy the first element of a
CEPA retaliation claims, a plaintiff must identify a law, rule, regulation, or
clear mandate of public policy, that supports the basis of his CEPA claim as
well as unacceptable practices in the defendant employer’s business that
contravene the identified authority.”). See also Fineman a New Jersey Dep’t of
Human Servs., 640 A.2d 1161, 1169 (N.J. App. Div. 1994) certf denied, 138
N.J. 267 (N.J. 1994), abrogated on different grounds by Dzwonar a McDevitt,
177 N.J. 451, 463 (2003) (“[Summary judgment] motions brought by
defendants at the conclusion of plaintiffs case, and at the conclusion of all the
evidence, afforded to the trial judge opportunity to consider whether the
plaintiff satisfied [her] burden to establish existence of a specific law,
regulation, or other clear mandate of public policy.”).
31
Here, Ms. Goins 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 NRA 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 fri.
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., fri. (asserting that “there is
a
legal
out
to
problem
be
sending
private
a
will
require
Goins
not
using
that
re-bid,”
Ms.
court
with
bid
has
“the
via
contract
law
is
e-mail
failed
speculate
a
as
to
to
summary judgment
quite
“is
not
identify
what
in
that
clear
expired
that
permitted
the
they
NRA’s
has
legal
were.
favor,
I
a
rather
BRC
under
is
Because
do
not
needed”,
local
the
violations
she
this
than
or
contract
sufficient
NRA’s
it
that
reported,
is
address
sending
law”).
and
the
to
other
arguments.
iv. Discrimination
NRA moves for summary judgment on Ms. Goins’s claims for
discrimination under NJLAD and 42 U.S.C.
§ 1981. In the Complaint, Ms.
Goins alleges that NRA favored a similarly situated white co-worker by
excusing that co-worker and letting others do her work for her. (Cplt.
¶ 49— 50).
Ms. Goins claims that she was given other people’s work in addition to her
own.
(Id.
¶
50).26
In her opposition to summary judgment, Ms. Goins does not mention her
original
§ 1981 claim. (DE 89) Instead, she has in effect attempted to transform
her discrimination claim into a disparate-pay claim under NJLAD. (DE 89 pp.
Ms. Goins alludes to a hostile work environment on account of her race. (Within
the same paragraph, she alleges abuse that was “based on her disability,” which I
assume is an accidental holdover from the now-withdrawn Count 3. (Cplt. ¶ 43—46,
51)). Neither party’s brief addresses a racially-based hostile work environment claim.
(See DE 85-2 pp. 18—19; DE 89). I therefore set it aside.
26
32
30—31). In her opposition brief, Ms. Goins states: “plaintiff did the same job as
Nikki Whitney but was underpaid compared to her, and forced to do IMs.
Whitman’sj work.” (DE 89 p. 31). “jCjlaims [that] were not alleged in the
complaint
.
.
.
cannot be raised for the first time in opposition to a motion for
summary judgment.” See also Bey v. Daimler Chrysler Sen’s. of N. Am., No. CIV.
04-6186, 2006 WL 361385, at *11 (D.N.J. Feb. 15, 2006).
While Ms. Goins folds in her previous theory that “she was forced to do
Ms. Whitney’s work,” it is not developed factually. She sets forth no sufficient
factual indicia that these ordinary complaints of workplace unfairness had a
racial basis. Indeed, she makes little or no effort in her brief to connect her
complaints to the elements of 1981 or NJLAD.
Summary judgment in NRA’s favor is therefore granted on these
discrimination claims.
III.
Conclusion
For the reasons set forth above, NRA’s motion (DE 85) for summary
judgment is GRANTED in part and DENIED in part as follows. All but one of
Ms. Goins’s claims are dismissed.
The sole surviving claim is for uncompensated overtime pursuant to the
FLSA. As to that claim, the Court’s analysis has been hampered by counsel’s
mode of presentation of the issues. Because the Court is obligated to search
the record on a summary judgment motion, and because it wishes to ensure
that substantial justice is done, irrespective of deficiencies in presentation, I
am giving the p]zintiff one more chance to make a coherent submission on the
remaining FLSA uncompensated-overtime claim.
Within 45 days, Ms. Goins may file a 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. Goins worked overtime, the
amount of hours worked, and the compensation allegedly owed. Each fact
33
will be cited to the specific place in the record where support for it may
be found. Matters already decided will not be rehashed.
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.
An appropriate order follows.
Dated: March 29, 2019
Kevin McNulty
United States District Judge
34
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