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Cohen v. BH Media Group, Inc.

United States District Court, D. New Jersey

November 14, 2019

LYNDA COHEN, Plaintiff,



         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. 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 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. 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.

         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 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 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) 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 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.

         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 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 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. (D-0700). 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 ...

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