Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Donnell v. BH Media Group, Inc

United States District Court, D. New Jersey, Camden Vicinage

May 24, 2018

BH MEDIA GROUP, INC., Defendant.

          SWARTZ SWIDLER, LLC By: Daniel A. Horowitz, Esq. Attorneys for Plaintiff.

          JACKSON LEWIS P.C. By: John K. Bennett, Esq. R. Shane Kagan, Esq. Attorneys for Defendant.



         Plaintiff Rachel O'Donnell asserts that her former employer, Defendant BH Media Group, Inc., doing business as the Press of Atlantic City, violated her rights under the Family Medical Leave Act, “FMLA, ” 29 U.S.C. § 2601 et seq., and New Jersey law, when it allegedly failed to properly apprise her of her rights to leave time before and after the birth of her child, and then allegedly pretextually eliminated her position while she was on maternity leave.[1]

         Defendant moves for summary judgment. For the reasons stated herein, the motion will be granted in part and denied in part.


         A. The leave time taken by O'Donnell

         By the time Plaintiff Rachel O'Donnell became pregnant with her second child in late 2013, she had been employed by Defendant, the Press of Atlantic City, for five years. (Defendant's Statement of Undisputed Material Facts, “DSUMF, ” ¶¶ 9, 12, 24) At the time, she was working full-time as one of two Circulation Sales Executives in the Circulation Department. (DSUMF ¶ 10) O'Donnell's projected due date was June 17, 2014. (DSUMF ¶ 42)

         On Thursday, February 20, and Friday, February 21, 2014, O'Donnell took two days off from work because her father was undergoing surgery. (DSUMF ¶ 14) The next day, Saturday, O'Donnell went to AtlantiCare Behavioral Health complaining of extreme anxiety. (DSUMF ¶ 16) On Monday, O'Donnell returned to AtlantiCare and spoke with a social worker; she did not go to work that day. (DSUMF ¶ 17-19) O'Donnell also did not go to work on Tuesday, February 25, because she returned to AtlantiCare to be evaluated by a psychiatrist. (DSUMF ¶ 20) O'Donnell's primary care physician faxed a doctor's note to Defendant stating that O'Donnell would be able to return to work on Friday, February 28, 2014. (DSUMF ¶ 22) In response, Nancy Sonnie, Defendant's Payroll and Human Resources Administrator, sent O'Donnell a letter confirming that O'Donnell's leave “beginning on February 24, 2014” was FMLA leave. (Def. Ex. 3) On February 26, 2014, O'Donnell's psychiatrist faxed a doctor's note to Defendant stating,

This is to confirm that Rachel Odonnell [sic] is currently engaged in Adult Intervention Services with AtlantiCare since 02/22/14. Ms. Odonnell [sic] was seen by me today- 02/25/14. She is unable to work due to illness. Her expected date of return to work is 03/17/14.

(Def. Ex. 3)

         The following week, on March 4, 2014, while O'Donnell was still out on FMLA leave, she emailed Sonnie. (Def. Ex. 3) The email's subject line was “Maternity benefits.” (Id.) O'Donnell inquired, “Nancy, my doctor wanted me to ask you if me filling out the FMLA forms now and the disability I am [sic] now will affect my maternity disability. I don't think so but he wanted me to follow up with you on it.” (Id.) Minutes later, Sonnie responded by email, “[y]ou are using the FMLA protection now, so you would have less when you went out on maternity. But for the job protection you have to fill it out now and then.” (Id.) Minutes after that, O'Donnell further questioned, “[b]ut I am still entitled to the maternity benefits of 4 weeks before and 8 weeks after regardless right? FMLA after that will depend on how many weeks I have left from my disability now? If that makes sense?” (Id.)[2] Minutes after that, Sonnie responded:

You can be out a total of 6 months under disability so yes you should be fine there.
FMLA you get a total of 60 business days of job protection, so you are using some now, and you will use some later.
Then if you wanted you could take an additional 12 weeks to care for the baby.
You are using the piece that we supplement (11 weeks), so you won't have as much when you go out on maternity.
Hope this helps.


         On March 14, 2014, O'Donnell's psychiatrist faxed Defendant a doctor's note extending her leave to April 30, 2014. (Def. Ex. 3) Thereafter, on April 22, 2014, O'Donnell's obstetrician provided a note stating that O'Donnell “will be out of work until after delivery of child.” (Id.)[3]

         O'Donnell gave birth on her due date, June 17, 2014. (DSUMF ¶ 47) Thereafter, O'Donnell provided Defendant a doctor's note stating that O'Donnell had delivered by cesarean section and “will be able to return to work without restrictions 8/12/14.” (Pl. Ex. M)[4]

         On July 1, 2014, O'Donnell emailed Nancy Sonnie to tell Defendant that she planned on returning to work on Monday, August 11, 2014. (Pl's Ex. BB)

         B. Events at The Press of Atlantic City while O'Donnell was on Leave

         On Friday, March 28, 2014, a little over a month after O'Donnell began her FMLA leave, Danielle Daly, Director of Human Resources at the Press of Atlantic City, emailed an HR representative at Defendant's headquarters and copied Nancy Sonnie. The email's “Subject” was “FMLA issue.” (Pl. Ex. N) The email stated:

Hi Roshelle- we have an FMLA/term situation want to get your feedback on:
Rachel O'Donnell works in Cir as a Sales Executive. She's pregnant & due in mid-June. Her plan is to stay out of work until after the baby arrives.
• She's been out on STD since 2/24/14 on mental health issue • Her current RTW date is 4/30 (but we don't anticipate her returning until after the baby is born)
• Her FMLA will end on 5/16 if she doesn't return on 4/30. If she returns on 4/30 then she'll have 12 days remaining of FMLA protection.
• Once the baby arrives she's eligible for 12 weeks of job protection under NJFLA to care for the baby. The department has been struggling to get the work done. She is one of two people in this position (the other person was just hired on 3/24/14).
What are your thoughts on terminating her employment once her FMLA ends?

(Pl. Ex. N)

         The following Monday, April 2, 2014, approval was given to temporarily place Jessica Harvard in O'Donnell's position, effective April 15, 2014. (Pl's Ex. O) Defendant's “Employee Status Change Form” indicates that Harvard's “new business title” was “Circulation Sales Executive (temp)” and that the “Person Replaced” was “Rachel O'Donnell- currently out on leave.” (Id.)

         Then, a week later, on April 22, 2014-- the same day Nancy Sonnie received O'Donnell's obstetrician's note stating that O'Donnell would be out of work through her delivery-- Defendant again internally discussed O'Donnell's situation. Mark Blum, the Publisher of the Press of Atlantic City inquired of Daly, via email, “[s]o can [O'Donnell's] position be replaced since we're talking about sometime in September before she comes back?” (Pl. Ex. P) Daly responded by writing the following email to Roshelle at corporate headquarters, and copying Blum:

Hi Roshelle-
Rachel O'Donnell who's out on a mental illness (we discussed this on 3/28). She's now out on maternity leave, see [doctor's] note below. Her FMLA will expire on 5/15. Her tentative delivery date is 6/17/14.
She would get at least 8 weeks of disability (depending on complications) after the baby is born. Then she has the option of taking NJFLA (the NJFLA doesn't start until after she's released from her disability) for up to an additional 12 weeks to bond with the baby, this could be anywhere from 8/12-11/4.
From 5/15 to 8/12 she will have no job protection under FMLA/NJFLA. What's your opinion about terminating her employment so we can replace her position?

(Pl. Ex. P)

         On May 22, 2014, one week after O'Donnell's FMLA leave time had been exhausted, Defendant posted a job opening for “Circulation Department Sales Executive.” (Pl. Ex. Q) The posting was removed one week later. (Id.) There is no evidence in the record that anyone was hired for the posted position.

         Around this time, the Director of the Circulation Department proposed to Publisher Blum four main staffing changes in the Circulation Department. (Def. Ex. 11)[5] Three of the four changes proposed moving or hiring individual people. (Id.) The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.