United States District Court, D. New Jersey
B. KUGLER United States District Judge
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.
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
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
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.
Intermittent Leave Relating to Plaintiffs Son
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.
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.
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.
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.
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.
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.
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
[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,
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.
Disability Leave Relating to Plaintiff's Foot
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.
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
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.
Plaintiff's March 4, 2016 Termination
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.
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.
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.
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.
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 ...