Cohen v. BH Media Grp., Inc., Civil Action No. 17-00024

Decision Date14 November 2019
Docket NumberCivil Action No. 17-00024
Citation419 F.Supp.3d 831
Parties Lynda COHEN, Plaintiff, v. BH MEDIA GROUP, INC. et al, Defendants.
CourtU.S. District Court — District of New Jersey

Jenna M. Cook, Law Offices of Jenna M. Cook, Linwood, NJ, for Plaintiff.

John K. Bennett, Richard Shane Kagan, Jackson Lewis PC, Morristown, NJ, for Defendants.



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 e-mail 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....

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