United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
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.
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
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.
Plaintiff's Employment Prior to 2015
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
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.
Plaintiff's Employment from September 2015 through July
The Lunch Policy
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.”
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
The Dayforce Presentation
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.
Ms. Loder becomes Plaintiff's supervisor
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
Plaintiff's disclosure of medical information
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.
The Press' Dress Code Policy
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
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.
Rules about Overtime and compensation
Press' employee handbook contains wage and hour policies.
Def. Ex 6. Defendant's overtime policy, states as
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
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
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.
Plaintiff's use of Dayforce
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.
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.
Failure to Record Time Worked in Dayforce
19, 2016, Mr. Steiger issued Plaintiff a written warning
regarding her failure to input her time in
Dayforce. 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.
The John Brooks Story and the Fire Chief Story
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
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.
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.
The Tim McGraw Concert
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.
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
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.
The Department of ...