COHEN v. BH MEDIA GROUP, INC. et al
Filing
39
OPINION. Signed by Judge Joseph H. Rodriguez on 11/14/2019. (rss, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LYNDA COHEN,
:
:
Plaintiff,
v.
Hon. Joseph H. Rodriguez
Civil Action No. 17-00024
:
BH MEDIA GROUP, INC. ET AL,
OPINION
:
Defendants.
:
This matter is before the Court on a Motion for Summary Judgment filed by all
Defendants. Having considered the parties’ submissions, the Court decides this matter
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the
reasons stated below, the Court grants in part and denies in part Defendants’ Motion for
Summary Judgment.
I.
Background
This case arises out of a series of events that occurred in 2015 through 2016 while
Plaintiff, Lynda Cohen (“Plaintiff”), was employed as a staff writer at the Atlantic City
Press (the “Press”). Plaintiff was employed by the Press for approximately sixteen (16)
years. Compl. ¶ 21. Defendant BH Media Group, Inc., (“BH Media”) purchased the Press
in or about 2013 and continued operating the entity as a New Jersey news reporting
agency. Id. at ¶¶ 9, 24. Plaintiff’s employment at the Press continued under BH Media’s
ownership.
A. Plaintiff’s Supervisors
The additional Defendants in this case, Ed Steiger (“Mr. Steiger”), Stephanie Loder
(“Ms. Loder”), and Winfred (Buzz) Keough (“Mr. Keough”), are also employees of BH
Media d/b/a the Press. During Plaintiff’s employment, Mr. Steiger, Ms. Loder, and Mr.
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Keough each acted as Plaintiff’s supervisor. See Part II of Pl. SMF. Beginning in July
2015, Mr. Steiger acted as the Director of Human Resources (“HR”). Pl. SMF ¶ 22. In
this role, Mr. Steiger “reviewed discipline for consistency with the policies issued,
departmental policies and the employee handbook.” Id. at ¶ 23. From December 2015
until Plaintiff’s termination in July 2016, Ms. Loder acted as Plaintiff’s supervisor. Ms.
Loder testified at her deposition that she had the authority to hire, fire, or discipline
employees with consultation of her superiors. Loder Dep. 26:12-27:4. Mr. Keough was
one of those superiors; he acted as Ms. Loder’s supervisor and was managing editor of
the Press. Id.; Pl. SMF ¶ 32-33. Ms. Loder was also responsible for approving the payroll
for all of the employees under her supervision. Id. at ¶ 29. It was then the employee’s
obligation to “communicate any extra hours worked, and to record those hours for
approval.” Def. Resp. SMF ¶ 29.
B. Plaintiff’s Employment Prior to 2015
Prior to 2015, while Mr. Hughes was Plaintiff’s manager, he expressed some
difficulties with Plaintiff, including lack of communication about where she was
working. Keough Dep. 40:8-17. Plaintiff stresses that her work performance had never
been an issue before 2015, that she exceeded expectations, and that there was “no
reason for Loder to begin to micro manage plaintiff and prevent her from doing the
work she had always succeeded at doing.” Pl. SMF ¶ 71.
According to the record, Plaintiff’s last performance evaluations took place in 2011
and 2012, prior to BH Media’s takeover. In her March 29, 2011 review, Plaintiff’s then
supervisor, Mr. Keough, indicated that her overall performance was satisfactory, or
“meets expectations.” Def. Ex. 9. In her role, Plaintiff exceeded expectations for a
number of categories including dependability and adherence to company values and
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policies. Mr. Keough also noted that Plaintiff needed improvement in contribution of
effectiveness of others, stating that Plaintiff “frequently fires off sarcastic, complaining
e-mails to supervisors when she gets an assignment, she does not care for. . . [and] has
made threats to quit.” Id. Plaintiff’s March 2012 review showed improvement. Plaintiff’s
overall rating was “exceeds expectations.” Pl. Ex. 3. Mr. Keough, still her supervisor,
noted that Plaintiff provided guidance to newer reporters, and her sources made her the
first to get a tip on breaking news.
C. Plaintiff’s Employment from September 2015 through July 2016
1. The Lunch Policy
Effective September 15, 2015, the Press instituted a new lunch policy which required
all hourly employees to take an hour-long lunch break (the “Lunch Policy”). [Dkt. No. 36
Pl. Ex. 4, the Press Lunch policy]. The Lunch Policy provided that if an employee opted
not to take a lunch break, “it must be approved by the Manager/Supervisor they report
to.” Id. The policy explained that these “exceptions” should be infrequent. Id. It also
included a note from HR stating: “The reason for this policy is to avoid overtime and a
penalty that could be imposed by the Federal Wage and Labor Division.” Id. The Lunch
Policy further provided that “[c]locking out before an 8 hour shift is completed without
approval is prohibited and could result in disciplinary action up to and including
termination.” Id.
It is undisputed that Plaintiff opposed the Lunch policy. Pl. SMF ¶¶ 38-39, 97. She
testified that she communicated her disagreement with the Lunch Policy to her editor,
Steve Hughes, which was based on her belief that it was not “federal law” and “did not
work with how reporters work.” Id. at ¶ 39. She further complained about the policy to
Ms. Loder, Mr. Steiger, Mr. Keough, employee Kris Worrel, and other management. Id.
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at ¶ 97. Plaintiff initially refused to sign the Lunch Policy and claims that Steve Hughes
told her if she did not sign the policy, she would not get a paycheck. Pl. Dep. 103-2:25.
On September 30, 2015 Plaintiff signed the Lunch Policy acknowledgment form, though
she noted that she was signing the document “under duress.” Pl. SMF ¶ 41.
2. The Dayforce Presentation
The Press introduced an online payroll system to its employees in late 2015, called
Dayforce. On December 15, 2015, Mr. Steiger and HR and Payroll Administrator, Nancy
Sonnie, conducted a Dayforce training session, to help “acclimate the staff” to the
program. Id. at ¶ 42; Def. SMF ¶ 48. Plaintiff arrived late to the presentation. According
to her, the presentation was informal; multiple people were raising comments and
concerns about various topics, including the Lunch Policy. Pl. SMF ¶ 46. Defendants
state that Plaintiff “became discourteous” at this presentation and was “arguing about
the lunch hour policy.” Def. SMF ¶ 49. There is no dispute that Plaintiff made certain
statements about the Lunch Policy—that it was not Federal law, that she could receive
work phone calls during her mandatory lunch hour, and that the policy did not work
with how reporters work. Pl. SMF ¶¶ 50-52. Plaintiff, however, was not the first to bring
up the policy; in fact, other employees agreed with her statements and joined in her
concerns. Id. at ¶¶ 50-57; Pl. Ex. 1. Mr. Steiger exclaimed that the Lunch Policy was not
a matter to be discussed at this particular training and explained Plaintiff could talk to
him about the policy at a different time. Plaintiff told him that she was in the middle of
working and then walked out of the training session before the meeting ended. Def. SMF
¶ 51. Mr. Steiger told Plaintiff that she was disrespectful and rude. Id. at ¶ 50; Pl. SMF ¶
58. The next day, he disciplined Plaintiff with a formal warning regarding her conduct
during the training session. Pl. SMF ¶ 60.
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3. Ms. Loder becomes Plaintiff’s supervisor
According to Plaintiff, Ms. Loder implemented “a whole new regime of rules for
plaintiff with no explanation” as her supervisor. Id. at ¶ 67. Ms. Loder communicated
these “rules” to her following a situation at work where Plaintiff hung up on a call with
senior editor, Steve Hughes. Def. Ex. 3 (D-0611,D-0612). This prompted Mr. Loder to
have an in-person conversation with her. Id. Afterwards, Ms. Loder sent a follow-up email explaining to Plaintiff the proper way to handle issues with her editor and stated
“when you are not in court, your regular work hours are 9 am to 6 pm with a one hour
lunch. Id. You are expected to be working in the office unless other arrangements to
work in the field have been discussed.” Id. Plaintiff was also required to “let Steve
Hughes know what [she was] working on each morning before 9:30 am meeting.” Id.;
Pl. SMF ¶ 68. Ms. Loder testified, however, that she did not implement or create any
new policies or procedures. Loder Dep. 22:11-25.
4. Plaintiff’s disclosure of medical information
On March 9, 2016, Plaintiff disclosed to Ms. Loder and Mr. Steiger personal medical
information. Pl. SMF ¶¶ 73-75. It is undisputed that Plaintiff also told her co-worker,
Ms. Gillis, about this personal issue. Def. SMF ¶ 30. To Plaintiff’s understanding, Ms.
Loder later discussed the information with others in the office. Pl. Dep. 144. Plaintiff
expressed to Mr. Steiger that she was upset with Ms. Loder for doing do so. Pl. SMF ¶
77. She then informed him that Ms. Loder had violated her HIPPA rights. Steiger Dep.
113:19-115:8. Due to the situation, Mr. Steiger conducted a meeting with Ms. Loder and
Plaintiff, which he documented in a memo dated March 16, 2016 and placed in both
employees’ files. Def. Ex. 10. According the memorandum, Ms. Loder apologized to
Plaintiff after the information was in fact “leaked” to the news room and Mr. Steiger
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explained that he could have handled the issue through the HR Process. Id. Immediately
after, Plaintiff took leave from work through April 11, 2016. Pl. SMF ¶ 80.
5. The Press’ Dress Code Policy
The Press maintains an Appearance/Dress Code Policy (the “Dress Policy”), which
was put into effect March 2016 while Plaintiff was on leave. Def. SMF ¶ 7. The policy
provides: “Employees must maintain a clean and professional appearance. An
employee’s attire should be consistent with the type of work performed as well as
appropriate for the position held and the image the Company seeks to project.” Id. at ¶
6. The Dress Policy calls for a “Business Causal Attire,” and establishes appropriate
dress and footwear for both men and women. Id. at ¶ 7. The publisher of the Press sent
an e-mail to all employees on March 23, 2016, providing revisions to the new policy. See
Pl. Ex. 8. The e-mail stated: “After getting some feedback from everyone, I think we
need to make some minor revisions/clarifications to the new dress code policy that goes
into effect April 4th.” Id. Those revisions included the allowance of three-inch heels,
elimination of a hosier/stocking requirement, and permission to wear capris to mid-calf.
Some departments, including the IT department, were exempt from the standards as
“the type of work that they do dictates a different dress code.” Id.
Plaintiff returned to work on April 11, 2016, at which time, she received the Dress
Policy. Pl. SMF ¶¶ 82-86. Plaintiff took issue with the policy. Those issues led to a
discussion with Mr. Steiger about her concerns with the Dress Policy. Id. During that
discussion, Plaintiff revealed to Mr. Steiger that she believed the policy discriminated on
the basis of gender and “was sexist and unfair to women.” Id. The policy, however, did
not contain the revisions. Plaintiff claims that she never received the March revision email. Id. The revisions “partially” resolved Plaintiff’s specific issues with the Dress
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Policy, but she still contested the policy. Pl. SMF ¶ 87. Specifically, “[t]here was still
some limitations on shoes,” exemptions for all male departments who were able to wear
jeans, and lengths of women’s pants. Pl. Dep. 291. While Plaintiff admits that the
exemption for the press room department made sense, she states that the IT department
was all male and thus, was still a discrimination issue. Id. at 293:3-9.
6. Rules about Overtime and compensation
The Press’ employee handbook contains wage and hour policies. Def. Ex 6.
Defendant’s overtime policy, states as follows:
If a non-exempt employee would like to work overtime hours, he/she must
receive proper authorization from his/her supervisor before working the
overtime hours. Overtime will be paid at one and a half (1 ½) times the
regular rate of pay. Only those hours actually worked in excess of forty (40)
hours in a work week will be paid at the overtime rate. Some exceptions may
be made based on department, location and work status.
Id. at 13. The policy further explains that
If an employee is eligible for overtime pay or extra pay, he/she must
maintain a record of the total hours worked each day. These hours must be
accurately recorded electronically. Each employee must sign his or her time
record electronically to verify that the reported hours worked is complete
and accurate (and that there is no unrecorded or “off-the-clock” work).
Employee time records must accurately reflect all regular and overtime
hours worked . . .
Id. at 14. Finally, the employee handbook provides that “[a]ny employee who fails to
report or inaccurately reports any hours worked will be subject to disciplinary action, up
to and including termination of employment.” Id.
According to Plaintiff, “employees were not to put in any overtime unless it was
approved and there was no overtime approved.” Pl. SMF ¶ 95. Plaintiff, however, did
receive overtime on more than one occasion during her employment with the Press. Def
SMF ¶ 25. Specifically, since April 2014 Plaintiff received overtime on twelve (12)
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occasions, six (6) of those twelve (12) being between 2015 and 2016. Id. Still, Plaintiff
states that she was not to put in more than 40 hours a week, “if she did, it would be a
problem and she could be terminated,” and she was afraid to do so. Pl. SMF ¶¶ 99-98.
Nonetheless, Plaintiff worked over 40 hours per week “because that was the way news
happened.” Id. at ¶¶ 100-101. She also entered a one-hour daily lunch break, pursuant to
the policy, even though she worked during that hour and was required to be on call. Id.
at ¶¶ 102, 105. Ms. Loder testified there is “a shift that a reporter works” and when
breaking news occurred after a shift there “would be a determination by an editor who
was present to send a reporter that was available.” Def. Resp. SMF ¶¶ 113-14. According
to Ms. Loder, if Plaintiff “covered an actual breaking news assignment . . . if she actually
covered something, she would be compensated.” Loder Dep. 42:10:23.
7. Plaintiff’s use of Dayforce
Plaintiff was trained and provided materials on how to use the Dayforce system. Pl.
Dep. 97. Plaintiff testifies that Dayforce experienced glitches, though once those passed,
she understood how to use it and understood that it was her responsibility to enter her
time. Pl. Dep. 98:15-99:2. Mr. Steiger testified that at one point he also walked Plaintiff
though how to use Dayforce. Steiger Dep. 85:15-23. But Plaintiff reported to Ms. Loder
and Mr. Steiger that she could not put her time in Dayforce outside of the office. See Pl.
Ex. 9.
Plaintiff admits that she did not always enter her time in Dayforce. On May 12, 2016,
Ms. Loder e-mailed Plaintiff asking her to fill in her timesaver account and claiming that
other managers kept reminding her that Plaintiff was not filling in her timesheets. Def.
Ex. 3 (D-0649, 0659). The next day, another reminder e-mail to Plaintiff was sent
stating, “you didn’t fill out your timesheet for last pay period. I asked you Wednesday to
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fill out your timesaver for this pay period because you would be off Friday, but you
didn’t do it.” Id. That same week Mr. Steiger sent a reminder to all employees regarding
Dayforce. That e-mail stated: “employees who work Monday through Friday all your
hours need to be done by end of today [Friday, May 13, 2016]. For employees who are
working the weekend, please input your hours no later than Sunday by 3pm.” Def. Ex. 3
(D-0650). Plaintiff responded to Ms. Loder explaining that she could not enter her time
from outside. Pl. Ex. 9.
8. Plaintiff’s Discipline
a. Failure to Record Time Worked in Dayforce
On May 19, 2016, Mr. Steiger issued Plaintiff a written warning regarding her failure
to input her time in Dayforce. 1 See Pl. Ex. 11. Mr. Steiger discussed this disciplinary
action with Plaintiff. Def. SMF ¶ 73. The warning details the e-mail exchanges between
Ms. Loder and Plaintiff, and Mr. Steiger and Plaintiff, wherein they reminded and
explained to Plaintiff she must complete her timesheets. Pl. Ex. 11. The warning also
stated that Plaintiff should not have an issue filling out her time sheet outside of the
workplace because all employees were able to download the Dayforce Application on
their company phones. Id. Plaintiff admits that the statements in the warning are
accurate but claims that neither of her company issued devices, her phone and Netbook,
would allow her to download the app referred to. Pl. Dep. 169.
Around the same time, Ms. Loder requested an e-mail thread regarding an error in Plaintiff’s
story from March 2016 be added to her file. The alleged error was a misidentified name, which
Plaintiff explained was the name provided, and was even corrected back in March when the
story ran.
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b. The John Brooks Story and the Fire Chief Story
On June 13, 2016, Ms. Loder disciplined Plaintiff for “unsatisfactory work quality,
[and] failure to communicate and follow directions,” concerning two separate incidents.
Def. SMF ¶ 78. The first incident, according to Defendants, concerned Plaintiff’s failure
“to write a story assigned to her” (referred to as the “John Brooks story”). Def. SMF ¶
80. Ms. Loder testified she verbally assigned Plaintiff a 2:30 p.m. deadline for a story,
the inside “copy deadline.” Loder Dep. 158:7-22. Defendants state that Plaintiff
submitted the story “more than four hours late” to the copy desk. Def. SMF ¶ 80.
Plaintiff, however, states that she sent the story around 2 p.m. Pl. SMF ¶ 150.
Plaintiff was also disciplined for her actions surrounding the “fire chief story.” The
disciplinary action form states that Plaintiff “did not immediately respond to an editor’s
request to cover the swearing in of the new fire chief in Atlantic City.” Pl. Ex. 17. Plaintiff
states that at some point, she went to Atlantic City, wrote up the story, and posted it by
4:00 p.m. Pl. SMF ¶ 154. Ms. Loder claims that Plaintiff never called to say the story was
in. According to Plaintiff, she obtained the details on the fire chief promotion and told
Christan, an employee in the newsroom, that she was writing up the story in her car. Pl.
SMF ¶ 160; Pl. Ex. 18. Plaintiff could not answer Ms. Loder’s calls because she was
getting information from the Mayor. She did text Ms. Loder to inform her that the story
was posted around 4:00 p.m., and again at 4:36 p.m. Pl. SMF at ¶¶ 159, 162-64.
The day after receiving disciplinary action for those two incidents, Plaintiff
requested a new supervisor. Id. at ¶ 167. Mr. Keough explained that he did not think that
a change in supervisors was warranted. Pl. Ex. 20. He believed that the solution to
Plaintiff’s problem with Ms. Loder was “communication,” and he suggested that they
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both sit down and agree on a how to better communicate with each other. Def. SMF ¶
83. Plaintiff also requested a copy of her personnel file. Pl. Ex. 21.
c. The Tim McGraw Concert
On June 2, 2016, Mr. Keough asked Plaintiff is she was interested in covering the
Tim McGraw concert that upcoming 4th of July; Plaintiff was interested and offered to
help with the coverage. A few weeks later, Mr. Hughes sent an e-mail to the entire
coverage team proposing a meeting for June 30th, 2016 “to finalize our plans for the
concert.” Def. Ex. 3 (D-706). Plaintiff responded that she would be working a short day
and would not make the suggested time. Mr. Hughes asked about Plaintiff’s schedule to
accommodate when she would be in the office to talk. Plaintiff then stated “you’re
making me do the early business end? Really?” Id. (D-703). To which Mr. Hughes stated
that he knew she volunteered for the coverage and thought he was doing her a favor with
that assignment as Plaintiff was a fan of the singer. He e-mailed her saying “you could
stay and enjoy the show without having to work during it or leave to go file.” Id. But
Plaintiff said that if she knew that was the plan, she would have declined to help cover
the concert.
On June 29, 2016 Plaintiff asked Mr. Steiger is there “any rules about
spouses/domestic partners not having a supervisory relationship?” The e-mail
concerned Mr. Hughes and another female employee, Sarah, who were cohabiting.
Sarah was also assigned to the concert. Pl. SMF ¶¶172-75. Plaintiff states she expressed
her concerns to Mr. Keough that Sarah “was given favorable treatment for the concert.”
Id. Mr. Keough discussed with Plaintiff the fact that Sarah “covered features and had
written about concerts and was suited for the job—the assignment.” Def. Resp. SMF ¶
175. “Plaintiff admits that there was nothing in her public safety beat job duties that
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included concerts,” the concert assignment was outside of her normal duties at the
Press. Id.
The next morning Plaintiff e-mailed Ms. Loder, Mr. Keough, and Mr. Hughes
regarding her concert assignment, in which she again expressed that she would have not
volunteered for the story if she knew her particular assignment. Def. Ex. 3 (D-0696).
She expressed that in the future she would like to be informed of assignments before a
final plan and asked again if she would still like to work that day. Id. After the e-mail
was sent, an editor, Kris Worrell e-mailed Plaintiff’s supervisors asking if Plaintiff could
be replaced on the coverage as she did not want to “send a reluctant reporter.” Id. (D0700). Mr. Keough responded to Plaintiff later that afternoon stating “it is clear that you
have no enthusiasm for the assignment, so you’re relived of it. Treat the July 4th as
holiday.” Id. (D-0696). On July 5th, Plaintiff was issued another disciplinary action, in
part addressing the issue over the concert coverage. The discipline form stated issues
with Plaintiffs comments, reluctance to cover the event, and unrelated failure to
communicate about hours she worked. Id. (D-0078). Ms. Loder suggested that Plaintiff
be terminated. Id. Thereafter, on July 5, 2016, the Press terminated Plaintiff’s
employment.
D. The Department of labor Investigation
According to the Plaintiff, Mr. Steiger informed her that the Press was being
Investigated by the Department of Labor (“DOL”). Plaintiff claims she later
communicated with an investigator, Mr. Guzman, and e-mailed him her concerns about
the Lunch Policy. Pl. Ex. 36. 2 The DOL conducted an inspection of the Press on May 20,
Defendants claim Plaintiff never produced any information on her communication with the
DOL in discovery.
2
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2016. Mr. Steiger was the one responsible for communicating with the DOL in regard to
its investigation. He testified, however, that he did not receive any information about
Plaintiff in connection with that investigation and that he was unaware that any
employees were asked to fill out information about wages and time records. Steiger Dep.
237-43. The DOL investigation was still in progress as of January 17, 2017.
E. Procedural History
Plaintiff filed a Complaint with this Court against all Defendants on January 3, 2017,
alleging claims for unpaid wages and retaliation under the Fair Labor and Standards Act
and New Jersey Wage and Hour Law (Count I); violations of New Jersey Law Against
Discrimination (Count II); and violation of the New Jersey Conscientious Employee
Protection Act (Count III). Defendants filed an Answer to Plaintiff’s Complaint. [Dkt.
Nos. 1, 9-11]. Defendants now move for summary judgment on all of Plaintiff’s claims.
[Dkt. No. 32]. The motion has been fully briefed by the parties and is ripe for decision.
[Dkt. Nos. 36, 38].
II.
Summary Judgment Standard
A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. Pearson v.
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will
enter summary judgment only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
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An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether
a genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256–57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails 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. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s 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 finder of fact. Big Apple BMW, Inc. v. BMW of
N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
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III.
Analysis
A. Plaintiff’s Claims under the Fair Labor and Standards Act and New
Jersey Wage and Hour Law
Defendants move for summary judgment on Count I of Plaintiff’s Complaint wherein
Plaintiff alleges violations of the Fair Labor and Standards Act (“FLSA”) and New Jersey
Wage and Hour Law (“NJWHL”). Specifically, Count I alleges claims for unpaid wages
and unlawful retaliation. As an initial matter, Defendants argue that Plaintiff’s claims
under the NJWHL are preempted by her FLSA claims. The Court disagrees.
The FLSA’s savings clause states: “No provision of this chapter or of any order
thereunder shall excuse noncompliance with any Federal or State law or municipal
ordinance establishing a minimum wage higher than the minimum wage established
under this chapter or a maximum work week lower than the maximum workweek
established under this chapter.” 29 U.S.C. § 218(a). The Third Circuit, in Knepper v.
Rite Aid Corp., found that the presence of the savings clause undermines any suggestion
that Congress intended to occupy the field of wage and hour regulation. Having come to
such conclusion, the court held that the Maryland Wage and Hour law, which
establishes the same protections as the FLSA, was not preempted by its federal
counterpart. 675 F.3d 249, 262 (3d Cir. 2013).
The NJWHL is similar to the Maryland WHL in that the New Jersey law affords the
same protections as the FLSA. See N.J. Stat. Ann. 34:11-56a4. In the present case,
Defendants argue to dismiss Plaintiff’s NJWHL claims on the basis of preemption,
relying solely on the district court case, Kronick v. Bebe Stores, Inc., 2008 WL 4509610
(D.N.J. September 29, 2008). The Kronick court held that the plaintiff’s state common
law claims were preempted by the FLSA. Id. Therefore, the Court finds that Defendants
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reliance on Kronick is misplaced. Defendants provide no other reason this Court should
find that the FLSA preempts the NJWHL. Given that, and in light of the Third Circuit’s
ruling, the Court declines to dismiss Plaintiff’s NJWHL claims on preemption grounds.
Therefore, the Court will proceed with an analysis of the substantive claims under both
statutes.
1. Unpaid wages
Defendants argue that they are entitled to judgment as a matter of law on Plaintiff’s
claim for unpaid overtime under both the NJWHL and FLSA because she was properly
compensated throughout the duration of her employment. The Court disagrees.
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime
guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 69 (2013). The NJWHL is the New Jersey state equivalent of the FLSA, it
requires employers to compensate employees at a wage rate no less than the federal
minimum set by the FLSA. N.J. Stat. Ann. 34:11-56a4. “The Supreme Court of New
Jersey has recognized the similarity between the statutes, adding that ‘[s]tatutes
addressing similar concerns should resolve similar issues ... by the same standard.’”
Brunozzi v. Crossmark, Inc., No. 13-4585, 2016 WL 112455, at *5 (D.N.J. Jan. 11, 2016)
(quoting Hargrove v. Sleepy’s LLC, 106 A.3d 449, 458 (N.J. 2015)). Therefore, the Court
will analyze Plaintiff’s FLSA and NJWHL claims simultaneously.
Plaintiff’s Complaint alleges that “Defendants failed and refused to pay her wages for
all hours worked during the workweek.” Compl. ¶ 79. Plaintiff now seeks to recover for
that unpaid overtime. “A plaintiff-employee seeking to recover for [sic] unpaid overtime
under the FLSA bears the burden of proving she performed work for which she was not
compensated.” Brunozzi, 2016 WL 112455 at *4. Accordingly, a claim for overtime must
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“sufficiently allege 40 hours of work in a given workweek as well as some
uncompensated time in excess of the 40 hours.” Lundy v. Catholic Health System of
Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)(1)). Though
Defendants claim that Plaintiff has failed to show any actual instance where she was not
properly compensated, the record presents a genuine dispute over the hours Plaintiff
was actually working and thus, whether Plaintiff was paid for all time worked.
As a staff writer, Plaintiff was a “40-hour workweek” employee, as is also evident
from her time records. Loder Dep. 10-13; Def. Ex. 3 (Dayforce records). Her “scheduled”
hours were Monday through Friday 9 a.m. to 6 p.m. Plaintiff, however, claims she would
receive and reply to work communications outside of these hours. Her supervisor would
not compensate her for time e-mailing back and forth outside of these hours. Loder Dep.
42:20-23. In addition, Plaintiff asserts that “she was always expected to be and was on
call and worked through her lunch hour,” which was unpaid. Pl. Op. at 28. Pursuant to
FLSA regulations, an unpaid meal period must be one which:
The employee must be completely relieved from duty for the purposes of
eating regular meals. Ordinarily 30 minutes or more is long enough for a
bona fide meal period. A shorter period may be long enough under special
conditions. The employee is not relieved if he is required to perform any
duties, whether active or inactive, while eating.
29 C.F.R. § 785.19. Plaintiff argues that she never actually took a lunch break “where she
was completely relieved from duty.” Pl. Op. at 28. She testified that she was always
expected to be on call and worked through some of the lunch periods. Pl. Dep. 231:1-5. If
Plaintiff worked during her hour lunch period, in addition to a full work week, she
worked in excess of 40 hours. Plaintiff claims she received calls, conducted interviews
and specifically asserts that she wrote the fire chief story during her lunch hour and was
17
not paid for that hour. Pl. Dep. 181:11-18; 241. In a light most favorable to Plaintiff, the
record also shows that Plaintiff was getting a commentary for the fire chief story after
4:30 p.m. and continued to communicate with Ms. Loder until at least 6:00 p.m. See
Def. Ex. 3 (D-0548, e-mail dated June 10, 2016 4:36 p.m.; D-0574, e-mail dated June
10, 2016 6:09 p.m.). Plaintiff’s Dayforce records show that she was not paid for any
work after 4:30 pm, nor was she paid for her recorded lunch hour. Plaintiff had worked
a 40-hour week (without accounting for such time). Id. (D-0508). Therefore, Plaintiff
provides sufficient evidence that she was not compensated for time she was working in
excess of 40 hours.
To recover under the FLSA, however, Plaintiff must also establish “that the
defendant-employer had either actual or constructive knowledge of the plaintiff’s
overtime work.” Brunozzi, 2016 WL 112455, at *4 (quoting Alers v. City of Phila., 919 F.
Supp. 528, 558 (E.D. Pa. 2013)). “An employer who is armed with [knowledge that an
employee is working overtime] cannot stand idly by and allow an employee to perform
overtime work without proper compensation, even if the employee does not make a
claim for the overtime compensation.” Newton v. City of Henderson, 47 F.3d 746, 748
(5th Cir. 1995) (quoting Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th
Cir.1981)).
Here, Plaintiff argues that Defendants knew or should have known that Plaintiff
worked more than 40 hours because breaking news, which Plaintiff handled, happens
all the time. As a news reporting business Defendants were aware of that fact and,
indeed Ms. Loder agreed that Plaintiff could receive calls outside her shift hours. Ms.
Loder was also aware that she personally had communicated with Plaintiff outside those
hours. Additionally, Plaintiff alleges that Defendants had knowledge of her working
18
overtime by way of her complaints. Plaintiff specifically complained to her superiors
that the Lunch Policy was not conducive to the role of a reporter. In doing so, Plaintiff
stated she could receive calls or a story while “on break.” Notwithstanding, there is no
dispute that Plaintiff was compensated for all of the time she entered into Dayforce,
including overtime hours she recorded. The record shows that Plaintiff was paid
overtime on six (6) occasions between 2015 and her termination in 2016. In that regard,
Defendants argue that Plaintiff’s claim must fail because it was her obligation to enter
her time worked and her allegations rely on time improperly worked off the clock or
inaccurately recorded and therefore, cannot preclude summary judgment. Def. Brf. at 4,
5. In this case, Plaintiff does not dispute that she was responsible for entering her time
worked into her employer’s online payroll system, nor does she contest that she claims
compensation for certain hours she did not record.
Courts have held that plaintiffs who are responsible for recording their own time but
fail to report accurate hours worked, have failed to establish a claim for unpaid wages
without further evidence that the employer knew or should have known of those hours
anyway. See Newton, 47 F.3d at 749–50; Forrester, 646 F.2d at 414; Wood v. Mid–Am.
Mgmt. Corp., 192 Fed. Appx. 378, 379 (6th Cir. 2006). But when a plaintiff can present
evidence “to suggest that Defendants attempted to discourage or squelch accurate
overtime reporting,” he/she can show that a genuine dispute as to defendant’s
knowledge of the time worked precludes granting summary judgment in defendants
favor. Stanislaw v. Erie Indem. Co., No. CA 07-1078, 2012 WL 517332, at *6 (W.D. Pa.
Feb. 15, 2012); see also Brunozzi, 2016 WL 112455, at *4 (“When an employer
encourages employees to misreport their hours, it cannot claim it had no knowledge of
the underreporting.” (citations omitted)). Accordingly, the pertinent issue to be decided
19
is whether Defendants in this case discouraged or suppressed employees, like Plaintiff,
from accurately reporting their time, including overtime and time worked during any
lunch hour.
Plaintiff argues that due to the Press’ policies, she often worked more than 40 hours
a week without recording such hours and without compensation. It cannot be disputed
that the Press’ policies prohibited reporters, like Plaintiff, from working more than 40
hours a week without advance approval. Def. Ex. 6 at 13. According to Plaintiff, absent
such approval, Defendants would subject employees to discipline for violation. She
claims that it became known in the news room that the reporters “were not to put in
more than eight hours, that if [they] did it would be a problem and [they] could be
terminated.” Pl. Dep. 297:1-13. Plaintiff further contends that she could not obtain
approval of overtime unless it was explicitly requested by her supervisors. According to
the record, Mr. Steiger agreed that approval of overtime hours could not always be
obtained. Additionally, as mentioned, the Press’ Lunch Policy requires employees to
take a one-hour unpaid lunch break. That policy states that exceptions (allowing
employees to work during the hour) should be “infrequent.” Def. Ex. 3. Plaintiff argues
she could receive calls at any time related to work, and therefore she could not obtain
advance approval to skip a lunch break. Generally, Plaintiff alleges that she was “scared”
to input her actual hours worked in fear of discipline. Pl. SMF ¶ 98-99.
To be sure, it is not clear whether overtime would have been approved, if requested.
Ms. Loder testified that she approved pay roll by ensuring employees’ recorded time in
Dayforce “correlated” with their respective shift, and that the employee worked an eight
(8) hour day. However, she explained that if Plaintiff had told her about working outside
her schedule, she would have been compensated for her time. Loder Dep. 39-40. Mr.
20
Steiger also testified that overtime work needed to be communicated at “some point,”
and that he explained to employees, including Plaintiff, that they “are to record every
moment [they] work for the company.” Steiger Dep. 40:2-6. Nevertheless, such
conflicting testimony does not warrant summary judgment. The Court must construe all
reasonable inferences in favor of Plaintiff and must reserve credibility determinations
for the trier of fact. Therefore, the Court finds that a genuine dispute of fact exists as to
whether Defendants were aware of Plaintiff unreported (unpaid) hours. Accordingly, the
Court denies summary judgment as to Plaintiff’s FLSA and NJWHL claims for unpaid
wages.
2. Retaliation
Next, Defendants argue that they are entitled to summary judgment on Plaintiff’s
FLSA and NJWHL retaliation claims because Plaintiff cannot establish her prima facie
case; particularly, they argue Plaintiff has not engaged in any protected activity.
Under the FLSA, it is unlawful to “discharge or in any matter discriminate against an
employee because that employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter . . .” See 29 U.S.C. §
215(a)(3).3 The anti-retaliation provision of the FLSA, is interpreted liberally and
protects a wide range of actions. See Brock v. Richardson, 812 F.2d 121, 123 (3d Cir.
1987).
Claims of unlawful retaliation under the FLSA and NJWHL are analyzed using the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
Similarly, the “NJWHL also protects workers from retaliation for complaining” under N.J.
Stat. Ann. 34:11–56a24. Chen v. Domino's Pizza, Inc., No. CIV.A. 09-107, 2009 WL 3379946, at
*3 (D.N.J. Oct. 16, 2009).
3
21
792, (1973). See Cononie v. Allegheny General Hosp., 29 Fed. App’x. 94, 95 (3d Cir.
2002); Weston v. Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001). Pursuant to the
McDonnell Douglas framework, plaintiff’s initial burden requires her to demonstrate a
prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802. To establish a
prima facie case of retaliation under the FLSA, a plaintiff must show that: (1) she
engaged in protected activity; (2) she suffered an adverse employment decision; and (3)
the adverse decision was causally related to the protected activity. Conoshenti v. Public
Elec. & Gas Co., 364 F.3d 135, 146–47 (3d Cir. 2004).
The nature of a plaintiff’s protected activity under 29 U.S.C. § 215(a)(3) is also
liberally construed. In this regard, oral complaints, as opposed to written complaints,
may constitute protected activity. See Kasten v. Saint–Gobain Performance Plastics Co.,
563 U.S. 1, 14 (2011). An oral complaint is considered protected activity when it puts an
employer on notice of a claim under the FLSA. The oral complaint must be sufficiently
clear and detailed so as to demonstrate that the employee is asserting rights protected
by the FLSA. Id. A plaintiff in a retaliation action is not required to show her employer
actually violated the FLSA, rather plaintiff's good faith belief that her employer is in
violation is sufficient. See Saffels v. Rice, 40 F.3d 1546, 1549–50 (8th Cir. 1994).
Here, Plaintiff argues that she engaged in protected activity under the FLSA when (1)
she refused to sign her employer’s Lunch Policy and (2) objected to Defendants failure
to compensate her for her lunch hour. It is undisputed that Plaintiff took issue with the
Press’ Lunch Policy because she “did not agree with the policy.” Pl. Op. at 6. Defendants,
however, argue that Plaintiff’s complaints do not constitute protected activity. In
support of that argument, Defendants cite Campbell v. Cty. of Monmouth, No. CIV. 116210, 2015 WL 3626694, at *3 (D.N.J. June 10, 2015). The Campbell court held that a
22
plaintiff’s repeated requests to be paid for lunch time pay were insufficient to constitute
protected activity. There, the content of plaintiff’s requests for pay did not mention the
FLSA “or any illegality.” Id. Instead, the court found the plaintiff’s complaints were bare
assertions for compensation. In context, plaintiff’s one mention of “labor law” did not
provide evidence suffice to preclude summary judgment because it was made before the
employer had stopped paying the plaintiff. Id.
The Court begins by addressing Plaintiff’s refusal to sign the Press’ Lunch Policy.
According to Plaintiff, she told Mr. Steiger that the Lunch Policy “was not a federal law.”
Id. When Defendants asked Plaintiff to sign that policy, she initially refused. Plaintiff
did mention federal and state law when expressing her disagreement with the Lunch
policy at issue. The content of Plaintiff’s first alleged complaint, however, relates to her
belief that no law required an unpaid lunch period for adult employees. In that regard,
Plaintiff does not provide evidence that she asserted FLSA rights to be paid for her lunch
period. Plaintiff provides no evidence that she complained that the rule violated law or
was otherwise illegal. In context, Plaintiff’s own testimony explains that when she
refused to sign the Lunch Policy her position was, “I disagreed with it, that there wasn’t
a federal law, that it didn’t work with how reporters work.” Pl. Dep. 103:15-21. Indeed,
upon ultimately signing the policy Plaintiff also made a written note, “signed under
duress strongly disagree with policy.” Def. Ex. 3 (D-0205). There is no other indication
of why she originally refused to sign. Id. Therefore, Plaintiff has not provided evidence
to dispute that such statements, in light of their content and context, were simply
oppositions to a policy Plaintiff stressed was not “conducive to how reporters worked.”
Pl. Dep. 295:18-25.
23
Similarly, the Court finds that Plaintiff has not produced sufficient evidence that she
engaged in protected activity by way of her informal complaints at the Dayforce training
session in December 2016. Plaintiff attended this training session held by Defendant
Steiger, during which she expressed her concerns about the Lunch Policy. According to
Plaintiff, she made a number of statements regarding the Lunch policy including that (1)
the policy was not federal law, (2) the policy did not work for reporters, and (3) the law
required to be paid for all hours worked and “employees should be paid for their lunch
unless they perform no work at all.” 4 Pl. SMF. ¶¶ 47-57. Defendants recognize that
Plaintiff contested the Policy and mentioned federal and state law in connection with
her concerns at the presentation. 5 Notwithstanding, Plaintiff has failed to establish a
genuine dispute of fact as to whether she engaged in protected activity.
The Supreme Court of the United States has held that “the phrase ‘filed any
complaint’ contemplates some degree of formality, certainly to the point where the
recipient has been given fair notice that a grievance has been lodged and does, or
should, reasonably understand the matter as part of its business concerns.” Kasten, 563
U.S. at 14. Neither the context of Plaintiff’s statements nor the content offered fair notice
of a grievance in which Plaintiff was asserting rights protected under the FLSA with a
call to protect them. Even accepting Plaintiff’s view of the facts, she could not have been
Defendants have asked this Court to disregard Plaintiff’s declaration as a “sham declaration,”
and afford it no weight in the court’s determination on this motion. To the extent that certain
facts alleged in Plaintiff’s declaration supplement and/or contradict with her deposition
testimony, the Court will disregard those facts. However, the Court finds that the pertinent
statements Plaintiff provides in support of her arguments do not present such an issue.
Specifically, Plaintiff’s declaration statements regarding the Dayforce presentation are
consistent with her deposition testimony.
5 Mr. Steiger also testified that Plaintiff complained about the Lunch Policy and made
statements about how “people” do not understand how many hours “we” work and about her
concerns that reporters cannot take lunch breaks. Steiger Dep. 39:17-40:1, 44.
4
24
asserting FLSA/NJWHL rights because at this point (1) Plaintiff did assert that she
actually worked through any lunch hour; and (2) Plaintiff did not make any request to
be paid for any lunch hour. There is also no dispute that Plaintiff voiced her concerns
with other employees at the Dayforce session. At that time, employees were discussing
administratively how and if the lunch hour should be put into their timesheets. Multiple
employees were raising general questions and concerns as to how the lunch policy would
work with their schedules. Pl. SMF ¶¶ 46-49. The basis of the conversation, therefore,
revolved around employee disagreement over the policy as a whole because it could not
“work” with how reporters work—which plaintiff previously made apparent. When
viewed in context, therefore, Plaintiff’s complaints do not rise to the degree of formality
required under the FLSA.
Furthermore, even assuming arguendo that Plaintiff did engage in protected activity
when she complained about the Lunch Policy at the Dayforce presentation, Plaintiff
cannot show a causal connection between such activity and her termination. First,
Plaintiff alleges that there is a causal relationship between her Dayforce complaint and
the disciplinary action that immediately followed on December 16, 2016. Plaintiff’s
discipline, however, does not constitute an adverse employment action under the FLSA.
“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.’” Goins v. Newark Hous. Auth., No. CV152195, 2019 WL
1417850, at *15 (D.N.J. Mar. 29, 2019) (quoting Robinson v. City of Pittsburgh, 120 F.3d
1286, 1301 (3d Cir. 1997)). Following the Dayforce training incident, the Press issued a
warning against Plaintiff. That warning had no impact on Plaintiff’s employment. See
25
Sconfienza v. Verizon Pennsylvania Inc., 307 F. App'x 619, 622 (3d Cir. 2008) (holding
that “a warning about future penalties, which had no adverse impact on [employee]'s
employment, did not affect her compensation, and did not impede her ability to receive
a transfer or promotion” was not an adverse action under the FLSA). That leaves
Plaintiff with one actionable adverse employment action, her termination.
Plaintiff does not directly argue that there is any causal relationship between her
opposition to the Lunch Policy and her termination. A causal connection may be
established by circumstantial evidence, such as temporal proximity, a pattern of
antagonism, and pretext. Kachmar v. SunGard Data Sys., 109 F.3d 173, 177 (3d Cir.
1997). This indirect evidence is to “be considered with a careful eye to the specific facts
and circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279, n.
5 (3d Cir. 2000). Here, the Press terminated Plaintiff’s employment on July 5, 2016,
more than 6 months after her comments regarding the policy at the Dayforce training
session. Thus, the temporal proximity is insufficient to establish a causal link. See
Goldsmid v. Lee Rain, Inc., No. CIV.A. 12-3666, 2014 WL 495717, at *6 (D.N.J. Feb. 6,
2014) (finding three-month gap not unusually suggestive to establish causal link).
“Where the time between the protected activity and adverse action is not so close as
to be unusually suggestive of a causal connection standing alone, courts may look to the
intervening period for demonstrative proof, such as actual antagonistic conduct or
animus against the employee.” Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302
(3d Cir. 2007), as amended (Aug. 28, 2007). Here, the evidence presented does not raise
an inference that the reason for Plaintiff’s termination was her assertion of FLSA rights.
While Plaintiff’s brief suggests that her employment in the intervening months between
her complaints and her termination present a causal connection, the Court disagrees.
26
The record is undisputed in that other employees discussed and disagreed with the
Lunch Policy, openly agreed with Plaintiff’s views about the policy, and made negative
statements concerning the Lunch Policy in front of management. Pl. Dep. 295:18-25; see
also Pl. Ex. 1. According to Plaintiff, Defendants did not discipline or terminate these
other employees. Under these circumstances, Plaintiff’s testimony and arguments raise
an inference against retaliatory motive. Plaintiff does not provide evidence of specific
comparators to show that she was treated less favorably than employees who did not
engage in what Plaintiff alleges was protected activity. Accordingly, the Court finds that
Plaintiff fails to create a genuine issue for the Jury. Therefore, the Court grants
summary judgment in favor of Defendant on each of Plaintiff’s retaliation claims in
Count I.
B. Plaintiff’s CEPA claim
Defendants move for summary judgment on Count III of Plaintiff’s Complaint.
Count III alleges violations of the New Jersey Conscientious Employee Protection Act
(“CEPA”). Plaintiff claims that Defendants retaliated against her for objecting to certain
policies and practices in contravention to CEPA by “subjecting plaintiff to pretextual
discipline and ultimately terminating plaintiff.” Compl. ¶¶ 92-94. Defendant argues that
Plaintiff again cannot establish her prima facie case to sustain a claim for retaliation,
specifically that she cannot show she engaged in protected whistleblowing. Even if
Plaintiff can establish a prima facie case, Defendant further argues that her claim fails
because she cannot show her termination was pretextual. Def. Brf. 18. The Court
disagrees, genuine factual disputes preclude Summary Judgment on Plaintiff’s CEPA
claim.
27
CEPA provides in pertinent part that: An employer shall not take any retaliatory
action against an employee because the employee does any of the following:
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 . . . or (2) is fraudulent or criminal . . .
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; 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;
(2) is fraudulent or criminal; or
(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. CEPA is “remedial legislation’ meant ‘to protect employees
who report illegal or unethical workplace activities.’” Dominguez v. Costco Wholesale
Corp., 356 F. App'x 611, 613 (3d Cir. 2009) (quoting Fleming v. Corr. Healthcare
Solutions, Inc., 751 A.2d 1035, 1038 (N.J. 2000)). The framework for analyzing CEPA
claims is analogous to FLSA and NJLAD claims, which use the McDonnel Douglas
burden-shifting framework. Donofry v. Autotote Sys., Inc., 795 A.2d 260, 269 (N.J. App.
Div. 2001) (“It is also plain that the methods of proof and the applicable burdens in LAD
and CEPA cases generally follow Title VII law, and we therefore frequently look to
federal as well as state discrimination and retaliation cases as precedent.”). Therefore,
the plaintiff must meet her initial burden by establishing a prima face case. To establish
a prima facie face of retaliation under CEPA, plaintiff “must demonstrate that (1) he or
she reasonably believed that the employer's conduct violated a law, rule, or regulation
promulgated pursuant to law, or a clear mandate of public policy; (2) he or she
28
performed a “whistle-blowing” activity described in [the act] (3) an adverse employment
action was taken against him or her; and (4) a causal connection exists between the
whistle-blowing activity and the adverse employment action.” Id. at 614.
1. Whistleblower Activity
Plaintiff claims she “made multiple disclosures that constitute whistleblowing
activity under CEPA,” including: (1) Disclosing and objecting to the Press’ Dress Policy
as discriminatory; (2) participating in a DOL investigation and providing the DOL with
information; and, (3) objecting to the Lunch Policy and refusing to sign it. 6
First, the Court will address Plaintiff’s participation in the DOL investigation against
her employer. Plaintiff has supplied documentation, such as e-mails between herself and
a DOL investigator, as evidence of her participation and communication with the DOL.
Defendants argue that Plaintiff failed to supply those documents in discovery. Pursuant
to the Federal Rules of Civil Procedure “if a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Therefore,
Defendants argue that the Court should not consider the e-mail exchange between
Plaintiff and the DOL. The Court agrees. Moreover, even if the Court were to consider
the documents Plaintiff has attached to its motion, those documents fail to provide any
evidence that Defendant knew about Plaintiff’s participation in any investigation. Thus,
Plaintiff’s Complaint also discusses that Plaintiff reported her belief that the Defendants had
violated her HIPPA right to one other supervisors. Defendant’s address this allegation in their
brief and argue that Plaintiff did not engage in CEPA protected activity because she is the one
who first divulged the personal information to more than one staff member. Plaintiff disregards
this argument and does not allege facts relating to this incident in her brief. Accordingly,
Plaintiff does not oppose Defendant’s argument and the Court will not address the issue in
detail.
6
29
Plaintiff cannot show that she participated in whistleblowing activity by way of her
participation in the DOL investigation. See Dominguez v. Costco Wholesale Corp., 356
F. App’x 611, 614 (3d Cir. 2009) (affirming summary judgment in favor of the defendant
on plaintiff’s CEPA claim where plaintiff pointed to no evidence that the decisionmakers or managers involved in plaintiff’s termination knew about his protected activity
prior to their decision).
With regard to Plaintiff’s complaints about the Press’ Lunch Policy, the Court has
already explained in detail supra the content and context of those statements. The Court
reiterates that Plaintiff’s objections to the Lunch Policy did not assert that the policy
itself was illegal, rather her objections expressed strong disagreement with the policy
based on Plaintiff’s belief that the policy was incompatible with her role as a reporter.
Although CEPA is liberally construed, “CEPA is not intended to shelter every alarmist
who disrupts his employer's operations by constantly declaring that illegal activity is
afoot—or, as in this case, is about to be afoot.” Blackburn v. United Parcel Serv., Inc., 179
F.3d 81, 94 (3d Cir. 1999).
In contrast, Plaintiff’s complaints about the Dress Policy do constitute
whistleblowing activity under CEPA. Here, Plaintiff explicitly told her supervisor that
she thought her employer’s dress policy was sexist and discriminated on the basis of
gender, as it was unfair to female employees. As such, Plaintiff disclosed to a supervisor
that a policy of her employer was in violation of a law, protected under N.J. Stat. Ann. §
34:19-3(a)(1) and objected to said policy, protected under § 34:19-3(c). Contrary to
Defendant’s argument—that Plaintiff’s disagreement with the dress policy was a “private
concern,” not covered by CEPA—“CEPA’s protection from retaliation extends to the
disclosure of discriminatory conduct by a person or company with whom an employer
30
maintains a business relationship.” Sample v. Marketstar Corp., No. CIV.A. 12-5538,
2014 WL 3894262, at *7 (D.N.J. Aug. 7, 2014). Plaintiffs opposition to what she believed
was a discriminatory employment practice of an employer, is protected under CEPA.
Roach v. TRW, Inc., 572, 727 A.2d 1055, 1063 (N.J. Super. App. Div.), cert. granted,
cause remanded, 743 A.2d 847 (N.J. 1999); see also Tegler v. Glob. Spectrum, 291 F.
Supp. 3d 565, 588 (D.N.J. 2018) (finding that a reasonable fact finder could conclude
that conversations about behavior reasonably believed to violate the NJLAD “were the
sort of ‘objection’ or ‘disclosure’ contemplated and protected by CEPA”).
2. Casual Connection
Defendants argue that even if Plaintiff engaged in whistleblower protected activity
that she cannot establish a causal relationship between any such activity and an adverse
employment action. Briefly, the Court must first address the adverse employment
actions asserted by Plaintiff, which are identical to those Plaintiff alleged in support of
her FLSA/NJWHL retaliation claim, and some of which occurred prior to her complaint
about the Press’ Dress Policy.
Under CEPA “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.” Ehling v. Monmouth-Ocean
Hosp. Serv. Corp., 961 F. Supp. 2d 659, 673 (D.N.J. 2013) (quoting N.J. Stat. Ann.
34:19–2(e)); see Keelan v. Bell Communications Research, 674 A.2d 603 (N.J. Super.
App. Div. 1996) (“The definition of retaliatory action speaks in terms of completed
action. Discharge, suspension or demotion are final acts. ‘Retaliatory action’ does not
encompass action taken to effectuate the ‘discharge, suspension or demotion.’”).
Plaintiff’s allegations that certain disciplinary actions constitute adverse actions alone
31
must fail as “allegations of retaliation [that] are minor and have no impact on either
plaintiffs’ compensation or rank” are not adverse employment actions. Hancock v.
Borough of Oaklyn, 790 A.2d 186, 193 (N.J. Super. App. Div. 2002) (citing Zamboni v.
Stamler, 847 F.2d 73, 82 (3d Cir. 1988)). Therefore, for the same reasons stated in the
Court’s analysis above, the only actionable adverse employment action that Plaintiff
experienced was her July 2016 termination.
To demonstrate a causal link between Plaintiff’s termination and her complaints
about the Press’ Dress Policy, she “must show that the ‘retaliatory discrimination was
more likely than not a determinative factor in the decision.”’ Choy v. Comcast Cable
Commc'ns, LLC, 629 F. App'x 362, 365 (3d Cir. 2015) (quoting Donofry v. Autotote Sys.,
Inc., 795 A.2d 260, 271 (N.J. Super. App. Div. 2001)). One way to establish causation is
through temporal proximity. However, “[i]t is important to emphasize that it is
causation, not temporal proximity itself, that is an element of plaintiff's prima facie
case, and temporal proximity merely provides an evidentiary basis from which an
inference can be drawn.” Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 178 (3d
Cir. 1997). Here, Plaintiff cannot establish a strong inference of retaliation from
temporal proximity alone. Plaintiff objected to the Dress Policy on or about April 11,
2016 and was terminated on July 5, 2016, almost 3 months later. See Choy v. Comcast
Cable Commc'ns, LLC, 629 F. App'x 362, 365 (3d Cir. 2015) (finding even a “six-week
period fails to raise an inference of causation”).
Retaliation may also be inferred “from the circumstances surrounding the
employment action including . . . inconsistencies or contradictions in the employer’s
proffered legitimate reasons for its action,” and “circumstantial evidence of a pattern of
antagonism following plaintiff’s protected conduct.” Robles v. U.S. Envtl. Universal
32
Servs., Inc., 469 F. App’x 104, 107–08 (3d Cir. 2012) (citations omitted); Kachmar, 109
F.3d at 177 (citations omitted). In this case, Plaintiff alleges that “the facts, the
circumstances and whole story of the ten months between Plaintiff’s first protected
activity and her termination demonstrate causation and pretext.” Pl. Op. at 24.
First, Plaintiff provides sufficient evidence that, if believed, shows she was treated
differently from others prior to her termination, after her opposition to the Dress Policy.
Plaintiff claims that she was disciplined unfairly for failing to input her time shortly
after her complaints regarding the Dress policy. She contends that other employees were
given more time to comply the Dayforce system before being threatened with discipline.
Indeed, Mr. Steiger acknowledged that other employees were failing to record their own
time, yet he could not recall anyone, besides plaintiff, who was disciplined for that
failure. Pl. Ex. 13. Weeks after Defendants disciplined Plaintiff, on June 7, 2016, Mr.
Steiger sent an e-mail stating, “effective this week, if an employee is not inputting their
hours, I will contact the manager of the department to begin with the process of
disciplinary action.” Id. Though Mr. Steiger testified that Plaintiff was written up
because her failure to put in her time was “habitual,” his June e-mail recognizes that he
was “clocking many of [employees] in and out on a regular basis.” Steiger Dep. 167
(emphasis added). Days after receiving that e-mail, Plaintiff wrote to Mr. Steiger
concerned that she was being written up without warning, while it seemed no one else
was. Pl. Ex. 15.
Plaintiff also argues that her discipline for the John Brooks and Fire Chief stories
were “based on false allegations.” Pl. Op. at 19. The record is replete with disputes over
the underlying facts as to these two instances, for which Plaintiff denies the allegations
that she missed deadlines and was not communicating with her supervisor. The Court
33
finds that at the very least, there is sufficient evidence to establish weaknesses,
implausibilities in Defendants’ explanations of Plaintiff’s discipline. The e-mail chains,
text messages, and disciplinary action show that Plaintiff did, at some point, write the
story she was assigned, submitted both stories, and communicated with her supervisor.
Viewing the facts in a light most favorable to Plaintiff, as the Court must, the record
presents inconsistencies in the disciplinary actions in dispute, which form at least part
of the basis for Plaintiff’s termination. Levins v. Braccia, No. A-4290-07T2, 2009 WL
1658610, at *7 (N.J. Super. Ct. App. Div. June 16, 2009) (“If an employer gives a false
reason or inconsistent explanations for the challenged employment action, that
circumstance can be relevant to a determination of causation.”). Furthermore, a
reasonable fact finder could infer retaliatory animus from the contradicting evidence
surrounding Plaintiff’s discipline. Therefore, the Plaintiff has provided sufficient
evidence of causation.
If a Plaintiff can establish a prima facie case of retaliation under CEPA, the burden
shifts to the defendant to articulate a legitimate non-retaliatory reason for its adverse
employment action. Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir.
1999). The parties do not dispute that Defendants have met their burden and provided a
legitimate non-retaliatory reason for Plaintiff’s termination. Defendants’ articulated that
Plaintiff was terminated pursuant to her performance issues, failure to abide by
company policies, unsatisfactory work quality, lack of communication, and disrespectful
conduct. Def. Brf. At 25-26. 7 Plaintiff’s termination resulted from her July 5, 2016
Defendants cite to the numerous disciplinary actions instituted against plaintiff and
documented as well as e-mail exchanges and testimony mainted in this record to support its
reasons.
7
34
disciplinary action, specifically recommending Plaintiff be terminated. That
recommendation further provided the following reasons: Plaintiff’s failure to
communicate with her supervisors regarding hours worked and assignments, failure to
timely fill in her time sheets, derogatory and unprofessional comments, and reluctance
to take on an assignment because it was not on “her terms.”
“Once the defendant articulates a legitimate reason for the adverse employment
action, the presumption of retaliatory discharge created by the prima facie case
disappears and the burden shifts back to the plaintiff. Then, “[t]o prevail at trial, the
plaintiff must convince the factfinder both that the reason [given by the employer] was
false, and that [retaliation] was the real reason.” Blackburn v. United Parcel Serv., Inc.,
179 F.3d 81, 92 (3d Cir. 1999) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920
n.2 (3d Cir. 1997) (internal quotations omitted)) (citations omitted). At the summary
judgment stage, “the court must determine whether the plaintiff has offered sufficient
evidence for a reasonable jury to find that the employer’s proffered reason for the
discharge was pretextual and that retaliation for the whistleblowing was the real reason
for the discharge.” Id. at 92–93 (3d Cir. 1999).
Here, Plaintiff provides sufficient evidence for a reasonable jury to conclude that
Defendants proffered reasons for Plaintiff’s termination are pretextual. First the record
creates a genuine factual dispute as to Plaintiff’s alleged performance problems. As
previously explained, Defendants cannot dispute that other employees were also failing
to input time in Dayforce. Yet Mr. Steiger cannot recall disciplining any of those other
employees. To be sure, Plaintiff was given multiple reminders to input her time worked
into Dayforce; one reminder notified Plaintiff that a formal warning would ensue of she
did not begin to input her time. However, a formal warning resulted from same incident
35
that prompted this reminder. Mr. Steiger distinguishes Plaintiff’s conduct and justifies
her warning by explaining that Plaintiff’s failure to record time in Dayforce was a
habitual problem. Even if Plaintiff’s conduct was “habitual,” she explained to
Defendants that she could not record her time from home. She also provides evidence
that the company rules for recording time were not clear. Specifically, she was told not
to put in time worked before actually working those hours and therefore, could not
always input time while in the office.
The record does not contain documentation of unsatisfactory work quality other
than an incident in March 2016 concerning a misidentified name in Plaintiff’s story,
which is disputed by Plaintiff. Interestingly, that incident was not documented in
Plaintiff’s personnel file until May 2016 after Plaintiffs Complaints. Less than one
month prior to Plaintiff’s termination Mr. Keough, rejecting Plaintiff’s request for a new
supervisor stated, “you’ve had some strong stories lately.” Pl. Ex. 20. The record also
lacks evidence that Plaintiff was ever disciplined in her long tenure with the Press before
late 2015. Defendants also claim that Plaintiff failed to abide by company policies,
without citation to which policies they refer to. Although Defendants documented
Plaintiff’s alleged failure to follow “unwritten policies,” Ms. Loder testified that news
room did not have unwritten company policies.
Finally, Plaintiff was disciplined more than once for underlying issues of lack of
communication, and disrespectful conduct, such as “unprofessional e-mails.”
Defendants claim Plaintiff’s lack of communication caused staffing problems and Mr.
Keough testified that Ms. Loder discussed communication difficulties she had with
Plaintiff. Keough Dep. 39. Mr. Hughes also had problems “with being unable to reach
[Plaintiff], communicate with her.” Id. The Court finds, however, that genuine disputes
36
of material fact as to Plaintiff’s communication are also present in the record. Plaintiff
has provided e-mails showing her communications efforts with Ms. Loder. Those emails claim that Plaintiff responded to text messages from Ms. Loder and other
employees. Even Defendants’ final disciplinary action against Plaintiff conflicts with
other evidence in the record. Although Plaintiff was disciplined for failure to
communicate, the written discipline references several communications that Ms. Loder
did have with Plaintiff. Additionally, Plaintiff was disciplined in-part for not recording
her time worked on the Wednesday shift before the end of that day, even though the
record shows that Plaintiff was told to have hours recorded “by at least the end of the
week.” Therefore, the Court finds that a reasonable fact finder could conclude that
Defendants stated reasons for Plaintiff’s termination are unworthy of credence and
therefore, that Plaintiff’s whistleblowing was the reason for her termination.
C. Plaintiff’s Claims under the New Jersey Law Against Discrimination
Defendants move for summary judgment on Plaintiff’s claims under the New Jersey
Law Against Discrimination (“NJLAD”). First, they argue that Plaintiff’s discrimination
claim fails because Plaintiff cannot establish a prima facie, as the record lacks any
evidence that could give rise to an inference of discrimination. Second, Defendants
argue that Plaintiff’s retaliation claim also fails because Plaintiff cannot show she
engaged in protected activity.
The NJLAD “was enacted with the express purpose of protecting civil rights,
particularly in the area of employment discrimination, where the NJLAD declares that
the opportunity to gain employment without fear of discrimination is a civil
right.” Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520, 534 (D.N.J.
37
2008); see Fuchilla v. Layman, 537 A.2d 652, 660 (N.J. 1988) (“[T]he overarching goal
of the [NJLAD] is nothing less than the eradication ‘of the cancer of discrimination.’”
(quoting Jackson v. Concord Co., 253 A.2d 793, 799 (N.J. 1969))).
The New Jersey Supreme Court has explained that the NJLAD is broad remedial
legislation, designed to prohibit employers from discriminating against employees with
respect to the terms and conditions of their employment on the basis of a protected
characteristic, such as race, religion, age, sex, and disability. See Quinlan v. CurtissWright Corp., 8 A.3d 209, 220 (N.J. 2010) (“We have been vigilant in interpreting the
[NJLAD] in accordance with that overarching purpose, and in recognition that it is . . .
remedial legislation that was intended to be given a broad and liberal
interpretation.”); see also N.J. Stat. Ann. § 10:5-12(a) (listing the various protected
classes under the NJLAD). NJLAD additionally provides that it is unlawful “[f]or any
person to take reprisals against any person because that person has opposed any
practices or acts forbidden under this act or because that person has filed a complaint . .
. under this act. . . .” N.J. Stat. Ann. § 10:5–12(d)12(d).
Discrimination and retaliation claims brought under the NJLAD are both analyzed
under the abovementioned flexible burden-shifting framework established by the
United States Supreme Court in McDonnell Douglas. Viscik v. Fowler Equipment Co.,
800 A.2d 826 (N.J. 2002); Jackson v. Trump Entm't Resorts, Inc., 149 F. Supp. 3d 502,
509 (D.N.J. 2015). Under the McDonnell Douglas framework, plaintiff has the initial
burden of establishing a prima facie case of discrimination by pointing to evidence in
the record sufficient to create a genuine factual dispute that “s/he suffered an adverse
employment action . . . under circumstances that could give rise to an inference of
38
intentional discrimination” on the basis his/her protected class. Makky v. Chertoff, 541
F.3d 205, 214 (3d Cir. 2008).
Here, Plaintiff claims Defendants unlawfully discriminated against her on the basis
of her gender by (1) “making and enforcing policies solely related to gender;” and, (2)
allowing a Press editor to “assign favorable stories to his live in girlfriend instead of
plaintiff.” Compl. ¶ 85. Plaintiff also claims that “Defendant Steiger retaliated against
plaintiff for her objections and claims of discrimination with respect to sex based
policies of defendant which impacted women and were otherwise discriminatory.” Id. at
¶ 88. She further alleges that “Defendants’ Loder and Steiger aided and abetted the
discriminatory treatment of plaintiff” and Defendants Keough and Loder particularly
aided and abetted such treatment by “disciplining plaintiff for her complaints.” Id. at ¶¶
85-89.
1. Discrimination under NJLAD
Plaintiff’s first claim for discrimination is based on the Press’ groom and dress
policy. The NJLAD provides that:
Nothing in the provisions of this section shall affect the ability of an
employer to require employees to adhere to reasonable workplace
appearance, grooming and dress standards not precluded by other
provisions of State or federal law, except that an employer shall allow an
employee to appear, groom and dress consistent with the employee's gender
identity or expression.
N.J.S.A. 10:5–12(p). Here, the appearance policy at issue was implemented for all
employees at the Press and institutes a business casual attire for both genders. It is
undisputed that the policy applies to both the men and women. Plaintiff alleges that the
policy was, nonetheless, discriminatory toward women because it required women to
39
wear pantyhose, dictated their type of shoe wear, and allowed exceptions only for male
employees.
Plaintiff’s Complaint ignores the fact that the policy was revised to eliminate her
main complaints. Under the policy in place at the time Plaintiff was employed at the
Press, women were not required to weary pantyhose and were permitted to wear heels,
so long as they were no higher than 3 inches. The policy contained other restrictions on
footwear, but they applied to both men and women. In fact, Plaintiff admits that the
revisions at least “partially” addressed her concerns. She testified that her real “issue”
with the policy was that the IT department was given an exemption. To that extent, it is
undisputed that the IT Department was given an exception for the no jean policy. The IT
department, however, was not the only department given that expectation, the
warehouse personnel and the pre-press personnel were also permitted to wear jeans.
Plaintiff took no opposition to those exceptions. Her concerns regarding the IT
department stressed that it was an all-male department.
Notwithstanding, such exception was not gender based. The Dress Policy was
tailored to consider “customer contact,” which was not an aspect of IT (or other exempt
departments). Def. Ex 3. Thus, the exempt departments were unlike Plaintiff’s position.
It is also reasonable of Defendants to conclude that the duties performed by IT
personnel warrant an alteration of Dress Policy. Moreover, “[w]hen an employer’s
‘reasonable workplace appearance, grooming and dress standards’ comply with State or
federal law prohibiting discrimination, even if they contain sex-specific language, the
policies do not violate Title VII, and by extension, the [NJ]LAD.” Schiavo v. Marina Dist.
Dev. Co., LLC, 123 A.3d 272, 291 (N.J. App. Div. 2015). Therefore, Plaintiff fails to show
Defendants’ policy was discriminatory.
40
Plaintiff’s next allegation of gender discrimination is for disparate treatment. To
establish a prima facie case of gender discrimination, Plaintiff must show that: (1) she is
a member of a protected class; (2) was qualified for the position; (3) suffered an adverse
employment decision; and (4) the adverse employment action was made under
circumstances that give rise to an inference of unlawful discrimination. Jones v. Sch.
Dist. of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999); Santosuosso v. NovaCare Rehab.,
462 F. Supp. 2d 590, 599 (D.N.J. 2006).
Plaintiff alleges discrimination based on assertions that an editor, Mr. Hughes, gave
preferential treatment to his live-in girlfriend, another female employee. Defendant
argues that Plaintiff fails to provide any evidence that could give rise to an inference of
discrimination. The Court agrees. The record supports only that Plaintiff subjectively
preferred the assignment of another female employee, who happened to be the editor’s
girlfriend. 8 See Erickson v. Marsh & McLennan Co., 569 A.2d 793, 802 (N.J. 1990)
(finding “no reason to extend the protection of LAD to sex-discrimination claims based
on voluntary personal relations in the work place”). In fact, the record is devoid of any
evidence that Plaintiff was treated differently from any other male employees.
Therefore, Plaintiff fails to provide evidence that she was discriminated because of her
sex. Thus, the Court grants summary judgment in favor of Defendant on Plaintiff’s
claims for discrimination under the NJLAD in Count II. 9
The assignment at issue was not even included in Plaintiff’s ordinary work. However, the
female employee was indisputably qualified to handle the assignment.
9 The Court notes that Plaintiff further abandons her discrimination claim by failing to address it
entirely in her opposition brief.
8
41
2. Retaliation under NJLAD
Plaintiff’s Complaint also alleges a retaliation claim under the NJLAD. To
establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in a
protected activity known to the defendant; (2) she was thereafter subjected to an
adverse employment decision by the defendant; and (3) there was a causal link between
the two. Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006). “The
central element of a retaliatory discharge claim under LAD is that the plaintiff be
‘engaged in a protected activity, which is known by the alleged retaliator.”’ Erickson, 569
A.2d at 803 (quoting Velantzas v. Colgate–Palmolive Co., 536 A.2d 237 ( N.J. 1988)).
Here, Defendants assert that Plaintiff has not engaged in protected activity and
therefore, fails to meet her initial burden.
“[A] person engages in a protected activity under the LAD when that person
opposes any practice rendered unlawful under the LAD.” Young v. Hobart W. Grp., 897
A.2d 1063 (N.J. Super. App. Div.2005); Bradley v. Atl. City Bd. of Educ., 736 F. Supp. 2d
891, 900 (D.N.J. 2010) (“protected activity includes ‘opposing practices or acts
forbidden under [the statute]’ as well as filing a complaint.” (citations omitted)). To be
considered protected activity, an employee’s complaint “must concern discrimination”
and moreover, must be more than a general complaint of unfair treatment. Dunkley v. S.
Coraluzzo Petroleum Transporters, 98 A.3d 1202, 1208 (N.J. Super. App. Div. 2014);
Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995).
Here, Plaintiff contends that her “objection” to Mr. Hughes allotting his girlfriend
a more favorable assignment constitutes protected activity under NJLAD. Pl. Op. at 21.
This complaint, however, did not concern discrimination. At no point did Plaintiff
complain that she was given less favorable assignments because she was a woman.
42
Rather, her objection was a general complaint of what she subjectively viewed as unfair
treatment. Therefore, Plaintiff did not engage in protected activity under the NJLAD
when she questioned supervisor and employee relationships.
Plaintiff also alleges that she engaged in protected activity by: “objecting to the
dress code policy, equality notice, [and] unequal pay and promotions among men and
women.” Pl. Op. at 13. Plaintiff’s Complaint does not plead any facts or claims regarding
objections to unequal pay or the Press’ Equality Notice. Accordingly, the Court will not
consider those acts as evidence that Plaintiff engaged in protected activity. 10 As for
Plaintiff’s complaints that the Press’ Dress Policy was “sexist” toward women, the Court
finds that such complaint qualifies as protected activity pursuant to NJLAD. It is
undisputed that Plaintiff told Mr. Steiger about her concerns with the Dress Policy,
which she felt was discriminatory. See Def. SMF ¶ 34; Pl. SMF ¶ 85. As previously
stated, Plaintiff thought the policy was sexist towards women. Although revisions to the
Policy addressed a number of the issues Plaintiff had with the Policy, at the time of her
complaint, Plaintiff was unaware of those changes, and persisted to object. Def. SMF ¶¶
34-35.
According to the New Jersey Supreme Court, “when an employee voices a
complaint about behavior or activities in the workplace that he or she thinks are
discriminatory, [the court does] not demand that he or she accurately understand the
nuances of the [NJ]LAD or that he or she be able to prove that there was an identifiable
Courts have granted summary judgment on claims a plaintiff asserts based on new theories of
liability. New theories of liability set forth in responsive papers to a motion for summary
judgment are “generally considered ‘too late’” and thus, do not create genuine issue of material
fact to preclude summary judgment. Bell v. Lockheed Martin Corp., 2014 U.S. Dist. LEXIS
87485, *76 (D.N.J. June 27, 2014); Laurie v. Nat'l Passenger R.R. Corp., 105 F. App'x 387, 392
(3d Cir. 2004).
10
43
discriminatory impact upon someone of the requisite protected class.” Id. Therefore, it
is inapposite that Plaintiff has not produced sufficient evidence to show the Press’ Dress
Policy was in fact discriminatory or that she and/or other female employees were
treated differently based on their gender. The NJLAD does require a reasonable “good
faith belief that the conduct complained of violates the [Act].” Battaglia v. United Parcel
Serv., Inc., 70 A.3d 602, 620 ( N.J. 2013). Here, Defendants do not suggest or argue that
Plaintiff acted in bad faith. Therefore, Plaintiff engaged in protected activity when she
opposed the Press’ Dress Policy.
The issue then, is that when “a plaintiff’s ‘state law claims arise from the same set
of facts surrounding his[/her] [CEPA] retaliation claim,” CEPA’s waiver provision
deems those state claims waived. N.J. Stat. § 34:19–8; Baldassare v. State of N.J., 250
F.3d 188, 202 (3d Cir. 2001) (“CEPA prohibits litigating duplicative claim[s].”) In the
present case, Plaintiff’s CEPA claim survives based only on Plaintiff’s whistleblowing
activity concerning her opposition to the Dress Policy. Therefore, her CEPA and NJLAD
retaliation claim are based entirely on the same conduct, for which Plaintiff provides the
same evidence. As such, the Court will dismiss Plaintiff’s retaliation claim under NJLAD
because it is now subsumed under CEPA. See Smith v. Twp. Of E. Greenwich, 519 F.
Supp. 2d 493, 510 (D.N.J. 2007), aff'd, 344 F. App'x 740 (3d Cir. 2009), as amended
(Nov. 3, 2009). Accordingly, the Court will grant summary judgment on Plaintiff’s
NJLAD retaliation claim, and dismiss Count II of Plaintiff’s Complaint.
D. Punitive Damages
Defendants also move for summary judgment on Plaintiff’s claims for punitive
damages. They argue that Plaintiff “cannot present any evidence of conduct that exhibits
malice or reckless disregard for her rights,” or produce any evidence of “particularly
44
egregious conduct” so as to hold Defendants liable for punitive damages. Def. Brf. at 2932. The Court Agrees.
The only remaining claim from which Plaintiff may seek punitive damages, is her
CEPA retaliation claim (COUNT III). Under CEPA, “[p]unitive damages are to be
awarded ‘when the wrongdoer’s conduct is especially egregious.’” Lehmann v. Toys R
Us, Inc., 626 A.2d 445, 464 (N.J. 1993) (quoting Leimgruber v. Claridge Assocs., 375
A.2d 652 (N.J. 1977)). An employer may only be liable for punitive damages if there was
“actual participation by upper management or willful indifference.” Abbamont v.
Piscataway Twp. Bd. of Educ., 138 N.J. 405, 419 (1994). The Supreme Court of New
Jersey has explained that “to be a part of ‘upper management,’ ‘the employee should
have either (1) broad supervisory powers over the involved employees, including the
power to hire, fire, promote, and discipline, or (2) the delegated responsibility to execute
the employer's policies to ensure a safe, productive and discrimination-free workplace.’”
Longo v. Pleasure Prods., Inc., 215 N.J. 48, 59, 71 A.3d 775, 782 (2013) (quoting Cavuoti
v. New Jersey Transit Corp., 735 A.2d 548, 557 (N.J. 1999)). The inquiry of who meets
the definition of “upper management” is fact-intensive. Id. Here, the Court need not
determine whether Plaintiff’s supervisors involved in the decision to terminate her
employment were in fact upper management because the Court finds that record in the
present case lacks any evidence of egregious conduct.
The test for egregiousness is satisfied “if plaintiff has proven ‘an intentional
wrongdoing in the sense of an evil-minded act or an act accompanied by a wanton and
willful disregard for the rights of [plaintiff].’” Id. Courts have also found sufficient
evidence of egregious conduct where the evidence demonstrates defendant acted with
“actual malice.” Quinlan v. Curtiss-Wright Corp., 274, 8 A.3d 209, 230 (N.J. 2010).
45
Plaintiff has not cited to any evidence that suggests Defendants acted with malice or
willful disregard for her rights at any point during her employment. To the contrary,
testimony provides that, at times, Plaintiff was guided to the appropriate personnel to
contact with concerns and afforded the opportunity to voice her complaints. In addition,
Defendants provide evidence of written company policies against discrimination and
retaliation, and respective complaint procedures. Def. SMF ¶¶ 2-5, 16-19. Testimony
further reveals that employees, including management, underwent training on antidiscrimination and harassment in the workplace. Such evidence shows the good faith
effort of the Defendant employer. See Kolstad v. ADA, 527 U.S. 526, 544 (1999) (“[I]n
the punitive damages context, an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where these decisions are
contrary to the employer's good faith efforts to comply with [anti-discrimination
legislation]”). Therefore, the Court will grant summary judgment and dismiss Plaintiff’s
claims for punitive damages.
IV.
Conclusion
For the forgoing reasons, the Court GRANTS in-part and DENIES in-part
Defendants’ Motion for Summary Judgment, dismissing Plaintiff’s FLSA retaliation
claim in Count I and both of Plaintiff’s NJLAD Claims in Count II, and striking
Plaintiff’s prayer of relief for Punitive Damages.
An appropriate Order shall issue.
Dated: November 14, 2019
_/s/ Joseph H. Rodriguez _________
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE
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