Goins v. Newark Hous. Auth.

CHERYL GOINS, Plaintiff, v. NEWARK HOUSING AUTHORITY, Defendant.

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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

March 29, 2019

OPINION

KEVIN MCNULTY, U.S.D.J.:

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

I. Background¹

a. Procedural History

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

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

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

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

On June 19, 2018, NHA filed its first motion for summary judgment. (DE 85). On July 25, 2018, Magistrate Judge Clark, in response to a request from plaintiff's counsel, extended the deadline for the filing of papers inopposition 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, plaintiff's 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, plaintiff's counsel filed an opposition to the motion for summary judgment, proffering no excuse. (DE 89). In response, NHA filed a letter objecting to the untimely filing and seeking an extension to file a reply. (DE 91). This Court granted NHA the requested extension. (DE 92).

On January 22, 2019, now over six months late for her deadline, plaintiff's counsel filed her own motion for partial summary judgment. (DE 93) Understandably, NHA objected. (DE 94). On January 24, 2019, plaintiff's 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 plaintiff's counsel did not provide any description of the "exceptional circumstances" that prevented her from filing anywhere near Magistrate Judge Hammer's deadline. I instructed plaintiff's counsel that she might submit an application for renewal of her motion for summary judgment should it be warranted after the disposition of NHA's summary judgment motion. (Id.).

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

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

b. Claims

The Complaint contains five counts, two of them now 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. ¶¶ 31-36). Ms. Goins alleges that the New Jersey Department of Labor determined that she and other employees should have been paid overtime for work. (Id. ¶ 31). NHA paid some co-workers overtime in June 2014, but she was never paid. (Id. ¶ 32). She also alleges that she asked NHA why she was not paid but did not receive a response. (Id. ¶¶ 33-34). Further, Ms. Goins alleges that NHA knowingly and willfully failed to pay her overtime wages, which constituted a constructive discharge of her employment. (Id. ¶¶ 35-36).

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

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

c. Hearsay

Before surveying the material facts, I clarify one issue of law. NHA makes a general argument that "Summary Judgment should be granted because 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 inquiry to determining if the out-of-court statements Plaintiffs were relying on were admissible at trial.

Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238-39 (3d Cir. 2016) (internal citations omitted) (holding that out-of-court statements the plaintiffs relied on were admissible at trial when "[p]lantiffs identified the out-of-court declarants . . . and noted their availability to testify"). See also Fed. R. Civ. P. 56 (advisory committee notes to 2010 edition) ("The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.") Thus, if the party submitting hearsay explains the admissible form that is anticipated for trial, the court will consider the evidence on summary judgment. See Frilando v. Bordentown Driver Training Sch., LLC, No. 2:15-cv-02917-KM-JBC, 2017 WL 3191512, at *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...