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Gill v. BH Media Group, Inc.

United States District Court, D. New Jersey

February 13, 2019

Carrie GILL, Plaintiff,


          ROBERT B. KUGLER United States District Judge

         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment [Doc. No. 28] dismissing Plaintiff Carrie Gill's Complaint [Doc. No. 1], which brings seven causes of action: retaliation under the Family and Medical Leave Act “FMLA” (Count I); interference with Plaintiff's FMLA rights (Count II); interference with Plaintiff's New Jersey Family Leave Act (“NJFLA”) rights (Count III); retaliation under the NFLA (Count IV); disability or perceived disability discrimination under the New Jersey Law Against Discrimination (“LAD”) (Count V); associational disability discrimination under the LAD (Count VII). For the reasons discussed in this Opinion, the Court GRANTS the Motion for Summary Judgment.


         This is a case of alleged retaliation and interference. Plaintiff Carrie Gill asserts that her former employer, Defendant BH Media Group, Inc., doing business as The Press of Atlantic City (“The Press”), violated her rights under the Family Medical Leave Act, “FMLA, ” 29 U.S.C. § 2601 et seq., and related New Jersey laws, when it allegedly failed to properly apprise her of her rights to leave time regarding both her son's medical condition and her surgery, and then allegedly pretextually eliminated her position while she was on medical leave. While the Defendant argues corporate consolidation led to the termination of various positions, including Plaintiff's position as Circulation Sales Manager, Plaintiff claims she was targeted because of her and her son's need for medical leave.

         1. Background

         The Press hired Plaintiff as a full-time Advertising Account Executive in December 2003. Pl. St. Mat'l Fact (“SMOF”) [Doc. No. 31-1] ¶ 7. In 2013, she became the Circulation Sales Manager in The Press' Circulation Department. Def's St. of Mat'l Fact (“SMOF”) [Doc. No. 28-2], ¶ 10. In that role, she reported to Director of Circulation John Celestino (“Celestino” or “Director Celestino”). Compl. ¶ 19. Celestino reported to Publisher Mark Blum (“Blum” or “Publisher Blum”), and the two met weekly to discuss matters relating to circulation. Id. ¶ 23; Celestino Dep'n 109:2.

         While not in dispute, the Court briefly notes Plaintiff's prior taking of FMLA leave. From 2007 to 2011, Plaintiff took at least three FMLA leaves of absence. First, she took leave in late 2007 because of a car accident and returned to work in January 2008. Pl. SMOF ¶ 11. Second, she took FMLA leave of absence related to the birth of her son in 2009. Id. ¶ 16. Third, she took leave from November 2011 through March 2012 for the birth of her daughter. Id. ¶ 20. In all three instances, she requested, received, and submitted FMLA forms. Id. ¶ ¶ 12-17. In addition, Defendant's H.R. representatives assisted her with FLMA leave. Pl's Reply SMOF [Doc. No. 31-2], ¶ 23. Plaintiff returned to the same position following these instances of FMLA leave and does not indicate any instances of retaliation or interference. Id. ¶ 18, 20, 21, 22. The instant matter focuses on issues regarding untaken FMLA leave in conjunction with her son Joshua's medical condition in 2015 and her foot surgery in 2016.

         2. Intermittent Leave Relating to Plaintiffs Son

         Sometime in 2013 or 2014, Plaintiff revealed to Director Celestino that Joshua, then four-years-old, suffered from autism spectrum disorder, anxiety, and sleep disturbance. Pl. SMOF ¶ 10. These conditions required occupational therapy, speech therapy, and behavior therapy. Id. ¶ 11.

         In response to Plaintiffs son's conditions, Celestino permitted her to come in late and leave early on several occasions. Id. ¶ ¶ 29-32. Throughout that time, Plaintiff often texted Celestino when she needed to come in late or stay home for childcare. Id. ¶ ¶ 33-40. From June 2014 through October 2015, Celestino permitted her to work from home as needed, so long as she worked her scheduled number of hours. Id. ¶ 47. Celestino testified that he never denied any of Plaintiff s requests to miss work for family reasons. See Celestino Dep'n. He also stated that his accommodations and flexibility even led some employees to suggest that Plaintiff was a “favorite” at work. Id.

         By 2015, Plaintiff requested to work at home on an intermittent basis because of her son's condition. Celestino testified that Publisher Blum denied Plaintiffs request to work at home on an intermittent basis. Celestino Dep'n, 166:6-9. Blum stated that this denial was for Plaintiffs request to work from home permanently, not intermittently. Blum Dep'n, 65: 15-9. While Defendant suggests this arrangement carried on further into 2015, Plaintiff stated that the situation changed following her son's hospitalization in October 2015. See Pl. Reply SMOF ¶ ¶ 47-8.

         In October 2015, Plaintiff took her son to Children's Hospital of Pennsylvania for medical treatment. Pl. SMOF ¶ 24. Plaintiff arrived late to work and left early to care for her son during this period. She stated that she always made up the time she missed for her son's condition. Pl. Reply SMOF ¶ ¶ 49-51. In response to her increased absence, Celestino testified that he faced new pressure to account for her schedule. See Celestino Dep'n. Celestino allegedly discouraged her from speaking to Publisher Blum about increased periods of leave. Plaintiff emailed Celestino, “I know you want me to say nothing. I'm tired of walking on egg shells.” Id. She then informed him that she would talk to Publisher Blum about her son. Pl. Reply SMOF ¶ 23. She also informed H.R. Director Ed Steiger. Id. ¶ ¶ 43-44.

         Plaintiff claims Celestino's flexibility came to an end in November 2015, when he “disciplined [her] for coming in late.” Id. ¶ 50. This alleged discipline came in the form of a Performance Action Plan (“PAP”). On November 16, 2015, Defendant issued Plaintiff the PAP. Pl. SMOF ¶ 33. Celestino testified that he faced increased scrutiny from both subordinates and superiors in permitting Plaintiff to arrive late and leave early with such flexibility. Celestino Dep'n. As a result, Celestino created the plan after receiving input from H.R. Director Steiger and Publisher Blum. Id. 169:1-2. Blum later testified that he was only aware that Plaintiff had a flexible schedule and did not know the specifics of her son's medical conditions. See Blum Dep'n 57-60.

         The one-page Plan has three sections. Performance Action Plan [Doc. No. 31-20]. The first provided bulleted goals for sales and retention. Id. The second stated rules about respect and collegiality. Id. The third section, just three lines, was entitled “Hours.” Id. This section stated, “You are required to work a nine-hour shift which includes sales meetings with potential partners, kiosk shipping and one hour for lunch. Your schedule is 8:30AM - 5:30AM Monday through Friday unless I approve differently.” Id.

         The parties dispute the events that occurred in a meeting in Publisher Blum's office on November 17, 2015. While they agree Plaintiff discussed her son's medical condition with Publisher Blum and Director Celestino, they disagree as to whether Plaintiff discussed or requested leave. Pl. Reply SMOF 44. Plaintiff states that she specifically requested what options she had regarding her son and potential leave. Id. She also states that she requested to work from home on an intermittent basis to care for her son. Pl. SMOF ¶ 30. In the meeting, Plaintiff claims that Publisher Blum said,

[W]e do not make special accommodations at your level. There's no other employees inside this company that we currently have that we accommodate for. You are a manager and you manage other employees . . . you have vacation time and you have sick time.

Pl. Reply SMOF ¶44. Plaintiff further claims that she requested a solution when she had to miss work due to her son, and that Publisher Blum, H.R. Director Steiger, and Director Celestino promised to provide a solution, but never delivered one. Pl. SMOF ¶48. In her deposition, Plaintiff revealed that Publisher Blum “threw out” the PAP issued from the prior day. Gill Dep'n, 214:6-17.

         Defendant insists that Plaintiff never asked for FMLA or NJFLA leave to care for her son. Def. SMOF ¶ ¶ 51-2. In addition, Defendant argues Plaintiff was permitted to work from home and miss work so long as she worked her scheduled number of hours. Def. Reply SMOF ¶ 51. Meanwhile, Plaintiff admits she never used the term “NJFLA” or “FMLA” to request leave for her son, but states that she requested what her options were to care for her son and on many occasions requested to miss time from work for her son's treatment. Pl. Reply SMOF ¶ ¶ 52-3.

         3. Disability Leave Relating to Plaintiff's Foot Surgery

         In January 2016, Plaintiff informed Celestino that she needed foot surgery. Pl. Reply SMOF ¶54. Celestino emailed Publisher Blum to inform him of Plaintiff's surgery. Def. SMOF ¶55.Celestino then spoke with Plaintiff about the possibility of her driving to work following the surgery. Id. ¶57. While Mr. Celestino did not recall Plaintiff ever asking anyone at The Press for a leave of absence for her foot surgery, Id. ¶65, Plaintiff insists she notified him that she would need at least two weeks off for recovery. Pl. Reply SMOF ¶65. Plaintiff further states that Mr. Celestino told her, “if she took the [FMLA] medical leave, she would not have a job to come back to.” Compl. ¶ 48.

         The parties agree that Mr. Steiger spoke with Plaintiff about FMLA leave regarding her foot surgery. Pl. Reply SMOF ¶ 58. He stated that if Plaintiff wanted FMLA leave for the surgery she could take it. Id. Plaintiff states that Defendant never provided her with any written notice of her rights and responsibilities under the FMLA. Id. She further states that she “completed every form she was given related to her foot, ” and there is no evidence any of these forms are FMLA-related. Id. Again, Defendant states that Plaintiff never mentioned a leave of any kind. Def. Reply SMOF ¶ 64. Defendant also points out that the Company handbook, for which Plaintiff acknowledged receipt, provided information regarding FMLA leave. Id.

         Plaintiff underwent surgery on her foot on March 2, 2016. Pl. Reply SMOF ¶ 62. Plaintiff claims that Defendant only provided a form regarding temporary disability benefits. She completed the New Jersey State Temporary Disability paperwork the next day. Id. ¶ 63. Plaintiff denies the extent that she understood she had completed any FMLA paperwork and was therefore taking protected FMLA leave. Id. ¶ 64. Plaintiff further attaches the testimony of Alexandra Reed, a fellow employee who informed Defendant she was having a mastectomy and similarly was not offered FMLA leave. Pl. SMOF ¶ 68. Instead, Reed, like Plaintiff, took disability leave. Id.

         4. Plaintiff's March 4, 2016 Termination

         Until her termination, Plaintiff served as a Circulation Sales Manager at The Press. Pl. Reply SMOF ¶ 66. She was responsible for managing a group of customer service representatives in the Circulation Department that handled customer calls from The Press subscribers. Id.

         The parties dispute the forces that led to Plaintiff's termination. Defendant argues that The Press underwent a corporate consolidation that altered Plaintiff's Circulation Sales Manager position. Def. SMOF ¶ 69. Then, when the company missed its revenue targets, Defendant enacted a Continency Plan to save $500, 000 in costs, which eliminated various positions, including Plaintiff's position. See Blum Dep'n.

         In 2015, The Press began a corporate consolidation. Def. SMOF ¶ 69. Sometime in the spring of 2015, nearly a year before Plaintiff's termination, Defendant began outsourcing certain customer call service duties to Tulsa, Oklahoma. Id. Defendant also installed a new circulation software system that caused some of the Circulation Department work at The Press to become unnecessary. Def. SMOF ¶ 67. The Press reduced the number of local customer service representatives in the process. Id. ¶ 68.

         At the end of 2015, the Press then put a “Contingency Plan” into effect, where the company would cut expenses contingent upon revenue not holding up to projection. Celestino Dep'n 103:19-21. Employees were aware that declining revenues could lead to layoffs. See Id. In January 2016, Plaintiff spoke with H.R. Director Steiger who stated that she would not be laid off under the contingency plan. Pl. SMOF ¶ 76. On January 26, 2016, Publisher Blum sent an email to Mr. Celestino that specifically discussed the termination of Plaintiff. Def. SMOF ¶ 70. In relevant part, Blum wrote,

I had a thought last night . . . could we add another full-time person to our marketing department to work with Mike and then eliminate [Plaintiff's] position . . . I'm not sure this would work but it might and we'd probably save $30, 000 annually . . . . What do you think?

Id. Mr. Celestino responded that morning and agreed with Publisher Blum's general proposal. Id. ¶ 71. Shortly thereafter, Celestino sent another email to Blum, “I do want to think [the reduction] through some more to make sure we are covered.” Id. ¶ 72.[1]

         On January 31, 2016, The Press launched the 2016 contingency plan to save approximately $500, 000 for the business. Def. SMOF ¶ ¶ 73-44. Publisher Blum stated that he worked with various Department heads in order to determine the positions for reduction. Blum Dep'n. The plan called for the elimination of the Circulation Sales Manager, Sales Coordinator, and Retail Telemarketer, and other positions. Id. ¶ 75. Celestino testified that it was difficult to determine who stayed and who had to go. See Celestino Dep'n. He is not sure if he put Plaintiff on the reduction in force list, but claims he “could have put everybody that works in the department on that list at some point . . . .” Id. 112:17-24. He resigned his position at The Press shortly after the launch. At the time of his ...

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