COHEN v. BH MEDIA GROUP, INC. et al, No. 1:2017cv00024 - Document 39 (D.N.J. 2019)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 11/14/2019. (rss, )

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COHEN v. BH MEDIA GROUP, INC. et al Doc. 39 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY LYNDA COHEN, Plaintiff, v. : Hon. J oseph H. Rodriguez : Civil Action No. 17-0 0 0 24 : BH MEDIA GROUP, INC. ET AL, OPINION : Defendants. : This m atter is before the Court on a Motion for Sum m ary J udgm ent filed by all Defendants. Having considered the parties’ subm issions, the Court decides this m atter without oral argum ent 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 Sum m ary J udgm ent. I. Background This case arises out of a series of events that occurred in 20 15 through 20 16 while Plaintiff, Lynda Cohen (“Plaintiff”), was em ployed as a staff writer at the Atlantic City Press (the “Press”). Plaintiff was em ployed by the Press for approxim ately sixteen (16) years. Com pl. ¶ 21. Defendant BH Media Group, Inc., (“BH Media”) purchased the Press in or about 20 13 and continued operating the entity as a New J ersey news reporting agency. Id. at ¶¶ 9, 24. Plaintiff’s em ploym ent at the Press continued under BH Media’s ownership. A. Pla in tiff’s Su p e rvis o rs The additional Defen dants in this case, Ed Steiger (“Mr. Steiger”), Stephanie Loder (“Ms. Loder”), and Winfred (Buzz) Keough (“Mr. Keough”), are also em ployees of BH Media d/ b/ a the Press. During Plaintiff’s em ploym ent, Mr. Steiger, Ms. Loder, and Mr. 1 Dockets.Justia.com Keough each acted as Plaintiff’s supervisor. See Part II of Pl. SMF. Beginning in J uly 20 15, Mr. Steiger acted as the Director of Hum an Resources (“HR”). Pl. SMF ¶ 22. In this role, Mr. Steiger “reviewed discipline for consisten cy with the policies issued, departm ental policies and the em ployee handbook.” Id. at ¶ 23. From Decem ber 20 15 until Plaintiff’s term ination in J uly 20 16, Ms. Loder acted as Plaintiff’s supervisor. Ms. Loder testified at her deposition that she had the authority to hire, fire, or disciplin e em ployees 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 m anaging editor of the Press. Id.; Pl. SMF ¶ 32-33. Ms. Loder was also responsible for approving the payroll for all of the em ployees under her supervision. Id. at ¶ 29. It was then the em ployee’s obligation to “com m unicate any extra hours worked, and to record those hours for approval.” Def. Resp. SMF ¶ 29. B. Pla in tiff’s Em p lo ym e n t Prio r to 2 0 15 Prior to 20 15, while Mr. Hughes was Plaintiff’s m anager, he expressed som e difficulties with Plaintiff, including lack of com m unication about where she was working. Keough Dep. 40 :8 -17. Plaintiff stresses that her work perform ance had never been an issue before 20 15, that she exceeded expectations, and that there was “no reason for Loder to begin to m icro m anage plaintiff and prevent her from doing the work she had always succeeded at doing.” Pl. SMF ¶ 71. According to the record, Plaintiff’s last perform ance evaluations took place in 20 11 and 20 12, prior to BH Media’s takeover. In her March 29, 20 11 review, Plaintiff’s then supervisor, Mr. Keough, indicated that her overall perform ance was satisfactory, or “m eets expectations.” Def. Ex. 9. In her role, Plaintiff exceeded expectations for a num ber of categories including dependability and adherence to com pany values an d 2 policies. Mr. Keough also noted that Plaintiff needed im provem ent in contribution of effectiveness of others, stating that Plaintiff “frequently fires off sarcastic, com plaining e-m ails to supervisors when she gets an assignm ent, she does not care for. . . [and] has m ade threats to quit.” Id. Plaintiff’s March 20 12 review showed im provem ent. 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 m ade her the first to get a tip on breaking news. C. Pla in tiff’s Em p lo ym e n t fro m Se p te m be r 2 0 15 th ro u gh Ju ly 2 0 16 1. The Lunch Policy Effective Septem ber 15, 20 15, the Press instituted a new lunch policy which required all hourly em ployees 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 em ployee opted not to take a lunch break, “it m ust be approved by the Man ager/ 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 overtim e an d a penalty that could be im posed by the Federal Wage and Labor Division.” Id. The Lunch Policy further provided that “[c]locking out before an 8 hour shift is com pleted without approval is prohibited and could result in disciplinary action up to and including term ination.” Id. It is undisputed that Plaintiff opposed the Lunch policy. Pl. SMF ¶¶ 38 -39, 97. She testified that she com m unicated her disagreem ent 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 com plained about the policy to Ms. Loder, Mr. Steiger, Mr. Keough, em ployee Kris Worrel, and other m anagem ent. Id. 3 at ¶ 97. Plaintiff initially refused to sign the Lunch Policy and claim s that Steve Hughes told her if she did not sign the policy, she would not get a paycheck. Pl. Dep. 10 3-2:25. On Septem ber 30 , 20 15 Plaintiff signed the Lunch Policy acknowledgm ent form , though she noted that she was signing the docum ent “under duress.” Pl. SMF ¶ 41. 2. The Day force Presentation The Press introduced an online payroll system to its em ployees in late 20 15, called Dayforce. On Decem ber 15, 20 15, Mr. Steiger and HR an d Payroll Adm inistrator, Nancy Sonnie, conducted a Dayforce training session, to help “acclim ate the staff” to the program . Id. at ¶ 42; Def. SMF ¶ 48. Plaintiff arrived late to the presentation. According to her, the presentation was inform al; m ultiple people were raising com m ents and concerns about various topics, including the Lunch Policy. Pl. SMF ¶ 46. Defendants state that Plaintiff “becam e discourteous” at this presentation and was “arguing about the lunch hour policy.” Def. SMF ¶ 49. There is no dispute that Plaintiff m ade certain statem ents about the Lunch Policy—that it was not Federal law, that she could receive work phone calls during her m andatory 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 em ployees agreed with her statem ents and joined in her concerns. Id. at ¶¶ 50 -57; Pl. Ex. 1. Mr. Steiger exclaim ed that the Lunch Policy was not a m atter to be discussed at this particular training and explained Plaintiff could talk to him about the policy at a different tim e. Plaintiff told him that she was in the m iddle of working and then walked out of the training session before the m eeting 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 form al warning regarding her conduct during the training session. Pl. SMF ¶ 60 . 4 3. Ms. Loder becom es Plaintiff’s supervisor According to Plaintiff, Ms. Loder im plem ented “a whole new regim e of rules for plaintiff with no explanation” as her supervisor. Id. at ¶ 67. Ms. Loder com m unicated 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-0 611,D-0 612). This prom pted Mr. Loder to have an in-person con versation with her. Id. Afterwards, Ms. Loder sent a follow-up em ail 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 arrangem ents to work in the field have been discussed.” Id. Plaintiff was also required to “let Steve Hughes know what [she was] working on each m orning before 9:30 am m eeting.” Id.; Pl. SMF ¶ 68. Ms. Loder testified, however, that she did not im plem ent or create any new policies or procedures. Loder Dep. 22:11-25. 4. Plaintiff’s disclosure of m edical inform ation On March 9, 20 16, Plaintiff disclosed to Ms. Loder an d Mr. Steiger personal m edical inform ation. 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 inform ation 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 inform ed him that Ms. Loder had violated her HIPPA rights. Steiger Dep. 113:19-115:8. Due to the situation, Mr. Steiger conducted a m eeting with Ms. Loder and Plaintiff, which he docum ented in a m em o dated March 16, 20 16 an d placed in both em ployees’ files. Def. Ex. 10 . According the m em orandum , Ms. Loder apologized to Plaintiff after the inform ation was in fact “leaked” to the news room and Mr. Steiger 5 explain ed that he could have handled the issue through the HR Process. Id. Im m ediately after, Plaintiff took leave from work through April 11, 20 16. Pl. SMF ¶ 8 0 . 5. The Press’ Dress Code Policy The Press m aintains an Appearance/ Dress Code Policy (the “Dress Policy”), which was put into effect March 20 16 while Plaintiff was on leave. Def. SMF ¶ 7. The policy provides: “Em ployees m ust m aintain a clean and professional appearance. An em ployee’s attire should be consistent with the type of work perform ed as well as appropriate for the position held and the im age the Com pany seeks to project.” Id. at ¶ 6. The Dress Policy calls for a “Business Causal Attire,” and establishes appropriate dress and footwear for both m en and wom en. Id. at ¶ 7. The publisher of the Press sent an e-m ail to all em ployees on March 23, 20 16, providing revisions to the new policy. See Pl. Ex. 8 . The e-m ail stated: “After getting som e feedback from everyone, I think we need to m ake som e m inor revisions/ clarifications to the new dress code policy that goes into effect April 4 th .” Id. Those revisions in cluded the allowance of three-in ch heels, elim ination of a hosier/ stocking requirem ent, and perm ission to wear capris to m id-calf. Som e departm ents, in cluding the IT departm ent, were exem pt from the standards as “the type of work that they do dictates a different dress code.” Id. Plaintiff returned to work on April 11, 20 16, at which tim e, she received the Dress Policy. Pl. SMF ¶¶ 8 2-86. 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 discrim inated on the basis of gender and “was sexist an d unfair to wom en.” Id. The policy, however, did not contain the revisions. Plaintiff claim s that she never received the March revision em ail. Id. The revisions “partially” resolved Plaintiff’s specific issues with the Dress 6 Policy, but she still contested the policy. Pl. SMF ¶ 8 7. Specifically, “[t]here was still som e lim itations on shoes,” exem ptions for all m ale departm ents who were able to wear jeans, and lengths of wom en’s pants. Pl. Dep. 291. While Plaintiff adm its that the exem ption for the press room departm ent m ade sense, she states that the IT departm ent was all m ale an d thus, was still a discrim ination issue. Id. at 293:3-9. 6. Rules about Overtim e and com pensation The Press’ em ployee handbook contains wage and hour policies. Def. Ex 6. Defendant’s overtim e policy, states as follows: If a non-exem pt em ployee would like to work overtim e hours, he/ she m ust receive proper authorization from his/ her supervisor before working the overtim e hours. Overtim e will be paid at one and a half (1 ½ ) tim es 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 overtim e rate. Som e exceptions m ay be m ade based on departm ent, location and work status. Id. at 13. The policy further explains that If an em ployee is eligible for overtim e pay or extra pay, he/ she m ust m aintain a record of the total hours worked each day. These hours m ust be accurately recorded electronically. Each em ployee m ust sign his or her tim e record electronically to verify that the reported hours worked is com plete and accurate (and that there is no unrecorded or “off-the-clock” work). Em ployee tim e records m ust accurately reflect all regular and overtim e hours worked . . . Id. at 14. Fin ally, the em ployee handbook provides that “[a]ny em ployee who fails to report or inaccurately reports any hours worked will be subject to disciplinary action, up to and including term ination of em ploym ent.” Id. According to Plaintiff, “em ployees were not to put in any overtim e unless it was approved and there was no overtim e approved.” Pl. SMF ¶ 95. Plaintiff, however, did receive overtim e on m ore than one occasion during her em ploym en t with the Press. Def SMF ¶ 25. Specifically, since April 20 14 Plaintiff received overtim e on twelve (12) 7 occasions, six (6) of those twelve (12) being between 20 15 and 20 16. Id. Still, Plaintiff states that she was not to put in m ore than 40 hours a week, “if she did, it would be a problem and she could be term inated,” an d she was afraid to do so. Pl. SMF ¶¶ 99-98. Nonetheless, Plaintiff worked over 40 hours per week “because that was the way n ews happen ed.” Id. at ¶¶ 10 0 -10 1. 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 ¶¶ 10 2, 10 5. Ms. Loder testified there is “a shift that a reporter works” and when breaking news occurred after a shift there “would be a determ ination 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 assignm ent . . . if she actually covered som ething, she would be com pensated.” Loder Dep. 42:10 :23. 7. Plaintiff’s use of Day force Plaintiff was trained and provided m aterials 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 tim e. Pl. Dep. 98:15-99:2. Mr. Steiger testified that at one point he also walked Plaintiff though how to use Dayforce. Steiger Dep. 8 5:15-23. But Plaintiff reported to Ms. Loder and Mr. Steiger that she could not put her tim e in Dayforce outside of the office. See Pl. Ex. 9. Plaintiff adm its that she did not always enter her tim e in Dayforce. On May 12, 20 16, Ms. Loder e-m ailed Plaintiff asking her to fill in her tim esaver account and claim ing that other m anagers kept rem inding her that Plain tiff was not filling in her tim esheets. Def. Ex. 3 (D-0 649, 0 659). The next day, another rem inder e-m ail to Plaintiff was sent stating, “you didn’t fill out your tim esheet for last pay period. I asked you Wednesday to 8 fill out your tim esaver for this pay period because you would be off Friday, but you didn’t do it.” Id. That sam e week Mr. Steiger sent a rem in der to all em ployees regarding Dayforce. That e-m ail stated: “em ployees who work Monday through Friday all your hours need to be done by end of today [Friday, May 13, 20 16]. For em ployees who are working the weekend, please input your hours no later than Sunday by 3pm .” Def. Ex. 3 (D-0 650 ). Plaintiff responded to Ms. Loder explaining that she could not enter her tim e from outside. Pl. Ex. 9. 8 . Plaintiff’s Discipline a. Failure to Record Tim e Worked in Dayforce On May 19, 20 16, Mr. Steiger issued Plaintiff a written warning regarding her failure to input her tim e in Dayforce. 1 See Pl. Ex. 11. Mr. Steiger discussed this disciplinary action with Plaintiff. Def. SMF ¶ 73. The warning details the e-m ail exchanges between Ms. Loder and Plaintiff, and Mr. Steiger and Plaintiff, wherein they rem inded and explain ed to Plaintiff she m ust com plete her tim esheets. Pl. Ex. 11. The warning also stated that Plaintiff should not have an issue filling out her tim e sheet outside of the workplace because all em ployees were able to download the Dayforce Application on their com pany phones. Id. Plaintiff adm its that the statem ents in the warning are accurate but claim s that neither of her com pany issued devices, her phone and Netbook, would allow her to download the app referred to. Pl. Dep. 169. 1 Around the sam e tim e, Ms. Loder requested an e-m ail thread regarding an error in Plaintiff’s story from March 20 16 be added to her file. The alleged error was a m isidentified nam e, which Plaintiff explained was the nam e provided, and was even corrected back in March when the story ran. 9 b. The J ohn Brooks Story and the Fire Chief Story On J une 13, 20 16, Ms. Loder disciplined Plaintiff for “unsatisfactory work quality, [and] failure to com m unicate 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 “J ohn Brooks story”). Def. SMF ¶ 8 0 . 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 subm itted the story “m ore than four hours late” to the copy desk. Def. SMF ¶ 8 0 . 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 im m ediately 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 som e point, she went to Atlantic City, wrote up the story, and posted it by 4:0 0 p.m . Pl. SMF ¶ 154. Ms. Loder claim s that Plaintiff never called to say the story was in. According to Plaintiff, she obtained the details on the fire chief prom otion and told Christan, an em ployee 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 inform ation from the Mayor. She did text Ms. Loder to inform her that the story was posted around 4:0 0 p.m ., an d 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 n ew 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 “com m unication,” and he suggested that they 10 both sit down and agree on a how to better com m unicate with each other. Def. SMF ¶ 8 3. Plaintiff also requested a copy of her personnel file. Pl. Ex. 21. c. The Tim McGraw Concert On J une 2, 20 16, Mr. Keough asked Plaintiff is she was interested in covering the Tim McGraw concert that upcom ing 4 th of J uly; Plaintiff was interested and offered to help with the coverage. A few weeks later, Mr. Hughes sent an e-m ail to the entire coverage team proposing a m eeting for J une 30 th , 20 16 “to finalize our plans for the concert.” Def. Ex. 3 (D-70 6). Plaintiff responded that she would be working a short day and would not m ake the suggested tim e. Mr. Hughes asked about Plaintiff’s schedule to accom m odate when she would be in the office to talk. Plaintiff then stated “you’re m aking m e do the early business end? Really?” Id. (D-70 3). To which Mr. Hughes stated that he knew she volunteered for the coverage and thought he was doing her a favor with that assignm ent as Plaintiff was a fan of the singer. He e-m ailed 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 J une 29, 20 16 Plaintiff asked Mr. Steiger is there “any rules about spouses/ dom estic partners not having a supervisory relationship?” The e-m ail concern ed Mr. Hughes and another fem ale em ployee, 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 treatm ent 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 assignm ent.” Def. Resp. SMF ¶ 175. “Plaintiff adm its that there was nothing in her public safety beat job duties that 11 included concerts,” the concert assignm ent was outside of her norm al duties at the Press. Id. The next m orning Plaintiff e-m ailed Ms. Loder, Mr. Keough, and Mr. Hughes regarding her concert assignm ent, in which she again expressed that she would have not volunteered for the story if she knew her particular assignm ent. Def. Ex. 3 (D-0 696). She expressed that in the future she would like to be inform ed of assignm ents before a final plan and asked again if she would still like to work that day. Id. After the e-m ail was sent, an editor, Kris Worrell e-m ailed Plaintiff’s supervisors asking if Plaintiff could be replaced on the coverage as she did not want to “send a reluctant reporter.” Id. (D0 70 0 ). Mr. Keough responded to Plaintiff later that afternoon stating “it is clear that you have no enthusiasm for the assignm ent, so you’re relived of it. Treat the J uly 4 th as holiday.” Id. (D-0 696). On J uly 5th , Plaintiff was issued another disciplinary action, in part addressing the issue over the concert coverage. The disciplin e form stated issues with Plaintiffs com m ents, reluctance to cover the event, and unrelated failure to com m unicate about hours she worked. Id. (D-0 0 78). Ms. Loder suggested that Plaintiff be term inated. Id. Thereafter, on J uly 5, 20 16, the Press term in ated Plaintiff’s em ploym ent. D . Th e D e p artm e n t o f labo r In ve s tigatio n According to the Plaintiff, Mr. Steiger inform ed her that the Press was being Investigated by the Departm ent of Labor (“DOL”). Plaintiff claim s she later com m unicated with an investigator, Mr. Guzm an, an d e-m ailed him her concerns about the Lunch Policy. Pl. Ex. 36. 2 The DOL conducted an inspection of the Press on May 20 , 2 Defendants claim Plaintiff never produced any inform ation on her com munication with the DOL in discovery. 12 20 16. Mr. Steiger was the one responsible for com m unicating with the DOL in regard to its investigation. He testified, however, that he did not receive any in form ation about Plaintiff in connection with that investigation and that he was unaware that any em ployees were asked to fill out inform ation about wages and tim e records. Steiger Dep. 237-43. The DOL investigation was still in progress as of J anuary 17, 20 17. E. Pro ce d u ral H is to ry Plaintiff filed a Com plaint with this Court against all Defendants on J anuary 3, 20 17, alleging claim s for unpaid wages an d retaliation under the Fair Labor and Standards Act and New J ersey Wage and Hour Law (Count I); violations of New J ersey Law Against Discrim ination (Count II); and violation of the New J ersey Conscientious Em ployee Protection Act (Count III). Defendants filed an Answer to Plaintiff’s Com plaint. [Dkt. Nos. 1, 9-11]. Defendants now m ove for sum mary judgm ent on all of Plaintiff’s claim s. [Dkt. No. 32]. The m otion has been fully briefed by the parties and is ripe for decision. [Dkt. Nos. 36, 38]. II. Sum m ary J udgm ent Standard A court will grant a m otion for sum m ary judgm ent if there is no gen uine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). 13 An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative eviden ce that contradict those offered by the m oving party. Andersen, 477 U.S. at 256– 57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 14 III. Analysis A. Pla in tiff’s Claim s u n d e r th e Fair La bo r an d Stan d ard s Act an d N e w J e rs e y W age an d H o u r Law Defendants m ove for sum m ary judgm ent on Count I of Plaintiff’s Com plaint wherein Plaintiff alleges violations of the Fair Labor and Standards Act (“FLSA”) and New J ersey Wage and Hour Law (“NJ WHL”). Specifically, Count I alleges claim s for unpaid wages and unlawful retaliation. As an initial m atter, Defendants argue that Plaintiff’s claim s under the NJ WHL are preem pted by her FLSA claim s. The Court disagrees. The FLSA’s savings clause states: “No provision of this chapter or of any order thereunder shall excuse noncom pliance with any Federal or State law or m unicipal ordinan ce establishing a m inim um wage higher than the m in im um wage established under this chapter or a m axim um work week lower than the m axim um workweek established under this chapter.” 29 U.S.C. § 218(a). The Third Circuit, in Knepper v. Rite Aid Corp., found that the presence of the savings clause underm ines any suggestion that Congress inten ded to occupy the field of wage and hour regulation. Having com e to such conclusion, the court held that the Maryland Wage and Hour law, which establishes the sam e protections as the FLSA, was not preem pted by its federal counterpart. 675 F.3d 249, 262 (3d Cir. 20 13). The NJ WHL is sim ilar to the Maryland WHL in that the New J ersey law affords the sam e protections as the FLSA. See N.J . Stat. Ann. 34:11-56a4. In the present case, Defendants argue to dism iss Plaintiff’s NJ WHL claim s on the basis of preem ption, relying solely on the district court case, Kronick v. Bebe Stores, Inc., 20 0 8 WL 450 9610 (D.N.J . Septem ber 29, 20 0 8). The Kronick court held that the plaintiff’s state com m on law claim s were preem pted by the FLSA. Id. Therefore, the Court finds that Defendants 15 reliance on Kronick is m isplaced. Defen dants provide no other reason this Court should find that the FLSA preem pts the NJ WHL. Given that, and in light of the Third Circuit’s ruling, the Court declines to dism iss Plaintiff’s NJ WHL claim s on preem ption grounds. Therefore, the Court will proceed with an analysis of the substantive claim s under both statutes. 1. Unpaid w ages Defendants argue that they are entitled to judgm ent as a m atter of law on Plaintiff’s claim for unpaid overtim e under both the NJ WHL and FLSA because she was properly com pensated throughout the duration of her em ploym ent. The Court disagrees. “The FLSA establishes federal m in im um -wage, m axim um -hour, and overtim e guarantees that cannot be m odified by contract.” Genesis Healthcare Corp. v. Sym czyk, 569 U.S. 66, 69 (20 13). The NJ WHL is the New J ersey state equivalent of the FLSA, it requires em ployers to com pensate em ployees at a wage rate no less than the federal m inim um set by the FLSA. N.J . Stat. Ann. 34:11-56a4. “The Suprem e Court of New J ersey has recognized the sim ilarity between the statutes, adding that ‘[s]tatutes addressing sim ilar concerns should resolve sim ilar issues ... by the sam e stan dard.’” Brunozzi v. Crossm ark, Inc., No. 13-4585, 20 16 WL 112455, at *5 (D.N.J . J an. 11, 20 16) (quoting Hargrove v. Sleepy’s LLC, 10 6 A.3d 449, 458 (N.J . 20 15)). Therefore, the Court will analyze Plaintiff’s FLSA an d NJ WHL claim s sim ultaneously. Plaintiff’s Com plaint alleges that “Defendants failed and refused to pay her wages for all hours worked during the workweek.” Com pl. ¶ 79. Plaintiff now seeks to recover for that unpaid overtim e. “A plaintiff-em ployee seeking to recover for [sic] unpaid overtim e under the FLSA bears the burden of proving she perform ed work for which she was not com pensated.” Brunozzi, 20 16 WL 112455 at *4. Accordingly, a claim for overtim e m ust 16 “sufficiently allege 40 hours of work in a given workweek as well as som e uncom pensated tim e in excess of the 40 hours.” Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 10 6, 114 (2d Cir. 20 13) (citing 29 U.S.C. § 20 7(a)(1)). Though Defendants claim that Plaintiff has failed to show any actual instance where she was not properly com pen sated, the record presents a genuine dispute over the hours Plaintiff was actually working and thus, whether Plaintiff was paid for all tim e worked. As a staff writer, Plaintiff was a “40 -hour workweek” em ployee, as is also evident from her tim e records. Loder Dep. 10 -13; Def. Ex. 3 (Dayforce records). Her “scheduled” hours were Monday through Friday 9 a.m . to 6 p.m . Plaintiff, however, claim s she would receive and reply to work com m unications outside of these hours. Her supervisor would not com pensate her for tim e e-m ailing back and forth outside of these hours. Loder Dep. 42:20 -23. In addition, Plaintiff asserts that “she was always expected to be and was on call and worked through her lunch hour,” which was unpaid. Pl. Op. at 28. Pursuant to FLSA regulations, an unpaid m eal period m ust be one which: The em ployee m ust be com pletely relieved from duty for the purposes of eating regular m eals. Ordin arily 30 m inutes or m ore is long enough for a bona fide m eal period. A shorter period m ay be long enough under special conditions. The em ployee is not relieved if he is required to perform any duties, whether active or inactive, while eatin g. 29 C.F.R. § 785.19. Plaintiff argues that she never actually took a lunch break “where she was com pletely relieved from duty.” Pl. Op. at 28. She testified that she was always expected to be on call and worked through som e of the lunch periods. Pl. Dep. 231:1-5. If Plaintiff worked during her hour lunch period, in addition to a full work week, she worked in excess of 40 hours. Plaintiff claim s she received calls, conducted interviews and specifically asserts that she wrote the fire chief story during her lunch hour and was 17 not paid for that hour. Pl. Dep. 181:11-18; 241. In a light m ost favorable to Plaintiff, the record also shows that Plaintiff was getting a com m entary for the fire chief story after 4:30 p.m . an d continued to com m unicate with Ms. Loder until at least 6:0 0 p.m . See Def. Ex. 3 (D-0 548, e-m ail dated J une 10 , 20 16 4:36 p.m .; D-0 574, e-m ail dated J une 10 , 20 16 6:0 9 p.m .). Plaintiff’s Dayforce records show that she was n ot paid for any work after 4:30 pm , nor was she paid for her recorded lunch hour. Plaintiff had worked a 40 -hour week (without accounting for such tim e). Id. (D-0 50 8). Therefore, Plaintiff provides sufficient evidence that she was not com pensated for tim e she was working in excess of 40 hours. To recover under the FLSA, however, Plaintiff m ust also establish “that the defendant-em ployer had either actual or constructive knowledge of the plaintiff’s overtim e work.” Brunozzi, 20 16 WL 112455, at *4 (quoting Alers v. City of Phila., 919 F. Supp. 528, 558 (E.D. Pa. 20 13)). “An em ployer who is arm ed with [knowledge that an em ployee is working overtim e] cannot stand idly by and allow an em ployee to perform overtim e work without proper com pensation, even if the em ployee does not m ake a claim for the overtim e com pensation.” Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995) (quoting Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.198 1)). Here, Plaintiff argues that Defendants knew or should have known that Plaintiff worked m ore than 40 hours because breaking news, which Plaintiff handled, happens all the tim e. As a n ews reporting business Defendants were aware of that fact and, indeed Ms. Loder agreed that Plaintiff could receive calls outside her shift hours. Ms. Loder was also aware that she personally had com m unicated with Plaintiff outside those hours. Additionally, Plaintiff alleges that Defendants had knowledge of her working 18 overtim e by way of her com plaints. Plaintiff specifically com plain ed to her superiors that the Lunch Policy was not conducive to the role of a reporter. In doing so, Plaintiff stated she could receive calls or a story while “on break.” Notwithstanding, there is no dispute that Plaintiff was com pensated for all of the tim e she entered into Dayforce, including overtim e hours she recorded. The record shows that Plaintiff was paid overtim e on six (6) occasions between 20 15 and her term ination in 20 16. In that regard, Defendants argue that Plaintiff’s claim m ust fail because it was her obligation to enter her tim e worked and her allegations rely on tim e im properly worked off the clock or inaccurately recorded and therefore, cannot preclude sum m ary judgm ent. Def. Brf. at 4, 5. In this case, Plaintiff does not dispute that she was responsible for entering her tim e worked into her em ployer’s online payroll system , nor does she contest that she claim s com pensation for certain hours she did not record. Courts have held that plaintiffs who are responsible for recording their own tim e but fail to report accurate hours worked, have failed to establish a claim for unpaid wages without further evidence that the em ployer knew or should have kn own of those hours anyway. See Newton, 47 F.3d at 749– 50 ; Forrester, 646 F.2d at 414; Wood v. Mid– Am . Mgm t. Corp., 192 Fed. Appx. 378, 379 (6th Cir. 20 0 6). But when a plaintiff can present eviden ce “to suggest that Defendants attem pted to discourage or squelch accurate overtim e reporting,” he/ she can show that a genuine dispute as to defendant’s knowledge of the tim e worked precludes granting sum m ary judgm ent in defendants favor. Stanislaw v. Erie Indem . Co., No. CA 0 7-10 78, 20 12 WL 517332, at *6 (W.D. Pa. Feb. 15, 20 12); see also Brunozzi, 20 16 WL 112455, at *4 (“When an em ployer encourages em ployees to m isreport their hours, it cannot claim it had no knowledge of the underreporting.” (citations om itted)). Accordingly, the pertinent issue to be decided 19 is whether Defen dants in this case discouraged or suppressed em ployees, like Plaintiff, from accurately reporting their tim e, in cludin g overtim e and tim e worked during any lunch hour. Plaintiff argues that due to the Press’ policies, she often worked m ore than 40 hours a week without recording such hours and without com pensation. It cannot be disputed that the Press’ policies prohibited reporters, like Plaintiff, from working m ore than 40 hours a week without advance approval. Def. Ex. 6 at 13. According to Plaintiff, absent such approval, Defendants would subject em ployees to disciplin e for violation. She claim s that it becam e known in the news room that the reporters “were not to put in m ore than eight hours, that if [they] did it would be a problem and [they] could be term inated.” Pl. Dep. 297:1-13. Plaintiff further contends that she could not obtain approval of overtim e unless it was explicitly requested by her supervisors. According to the record, Mr. Steiger agreed that approval of overtim e hours could not always be obtained. Additionally, as m entioned, the Press’ Lunch Policy requires em ployees to take a one-hour unpaid lunch break. That policy states that exceptions (allowing em ployees to work during the hour) should be “infrequent.” Def. Ex. 3. Plaintiff argues she could receive calls at any tim e related to work, and therefore she could not obtain advance approval to skip a lunch break. Generally, Plaintiff alleges that she was “scared” to input her actual hours worked in fear of discipline. Pl. SMF ¶ 98-99. To be sure, it is not clear whether overtim e would have been approved, if requested. Ms. Loder testified that she approved pay roll by ensuring em ployees’ recorded tim e in Dayforce “correlated” with their respective shift, and that the em ployee worked an eight (8 ) hour day. However, she explained that if Plaintiff had told her about working outside her schedule, she would have been com pensated for her tim e. Loder Dep. 39-40 . Mr. 20 Steiger also testified that overtim e work needed to be com m unicated at “som e point,” and that he explained to em ployees, including Plaintiff, that they “are to record every m om ent [they] work for the com pany.” Steiger Dep. 40 :2-6. Nevertheless, such conflicting testim ony does not warrant sum m ary judgm ent. The Court m ust construe all reasonable inferences in favor of Plaintiff and m ust reserve credibility determ in ations for the trier of fact. Therefore, the Court finds that a genuine dispute of fact exists as to whether Defendants were aware of Plaintiff unreported (unpaid) hours. Accordingly, the Court denies sum m ary judgm ent as to Plaintiff’s FLSA and NJ WHL claim s for unpaid wages. 2. Retaliation Next, Defendants argue that they are entitled to sum m ary judgm ent on Plaintiff’s FLSA an d NJ WHL retaliation claim s because Plaintiff cannot establish her prim a facie case; particularly, they argue Plaintiff has not engaged in any protected activity. Under the FLSA, it is unlawful to “discharge or in any m atter discrim inate against an em ployee because that em ployee has filed any com plaint or instituted or caused to be instituted any proceeding under or related to this chapter . . .” See 29 U.S.C. § 215(a)(3). 3 The anti-retaliation provision of the FLSA, is interpreted liberally and protects a wide range of actions. See Brock v. Richardson, 812 F.2d 121, 123 (3d Cir. 198 7). Claim s of unlawful retaliation under the FLSA and NJ WHL are analyzed using the burden-shifting fram ework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 3 Sim ilarly, the “NJ WHL also protects workers from retaliation for complaining” under N.J . Stat. Ann. 34:11– 56a24. Chen v. Dom ino's Pizza, Inc., No. CIV.A. 0 9-10 7, 20 0 9 WL 3379946, at *3 (D.N.J . Oct. 16, 20 0 9). 21 792, (1973). See Cononie v. Allegheny General Hosp., 29 Fed. App’x. 94, 95 (3d Cir. 20 0 2); Weston v. Pennsylvania, 251 F.3d 420 , 432 (3d Cir. 20 0 1). Pursuant to the McDonnell Douglas fram ework, plaintiff’s initial burden requires her to dem onstrate a prim a facie case of retaliation. McDonnell Douglas, 411 U.S. at 8 0 2. To establish a prim a facie case of retaliation under the FLSA, a plaintiff m ust show that: (1) she engaged in protected activity; (2) she suffered an adverse em ploym ent decision; and (3) the adverse decision was causally related to the protected activity. Conoshenti v. Public Elec. & Gas Co., 364 F.3d 135, 146– 47 (3d Cir. 20 0 4). The nature of a plaintiff’s protected activity under 29 U.S.C. § 215(a)(3) is also liberally construed. In this regard, oral com plaints, as opposed to written com plaints, m ay constitute protected activity. See Kasten v. Saint– Gobain Perform ance Plastics Co., 563 U.S. 1, 14 (20 11). An oral com plaint is considered protected activity when it puts an em ployer on notice of a claim under the FLSA. The oral com plaint m ust be sufficiently clear an d detailed so as to dem onstrate that the em ployee is asserting rights protected by the FLSA. Id. A plaintiff in a retaliation action is not required to show her em ployer actually violated the FLSA, rather plaintiff's good faith belief that her em ployer is in violation is sufficient. See Saffels v. Rice, 40 F.3d 1546, 1549– 50 (8th Cir. 1994). Here, Plaintiff argues that she engaged in protected activity under the FLSA when (1) she refused to sign her em ployer’s Lunch Policy and (2) objected to Defendants failure to com pensate her for her lunch hour. It is undisputed that Plaintiff took issue with the Press’ Lunch Policy because she “did not agree with the policy.” Pl. Op. at 6. Defendants, however, argue that Plaintiff’s com plaints do not constitute protected activity. In support of that argum ent, Defendants cite Cam pbell v. Cty. of Monm outh, No. CIV. 116210 , 20 15 WL 3626694, at *3 (D.N.J . J une 10 , 20 15). The Cam pbell court held that a 22 plaintiff’s repeated requests to be paid for lunch tim e pay were insufficient to constitute protected activity. There, the content of plaintiff’s requests for pay did not m ention the FLSA “or any illegality.” Id. Instead, the court found the plaintiff’s com plaints were bare assertions for com pensation. In context, plaintiff’s one m ention of “labor law” did not provide evidence suffice to preclude sum m ary judgm ent because it was m ade before the em ployer had stopped paying the plaintiff. Id. The Court begins by addressing Plaintiff’s refusal to sign the Press’ Lunch Policy. According to Plaintiff, she told Mr. Steiger that the Lunch Policy “was not a federal law.” Id. When Defendants asked Plaintiff to sign that policy, she initially refused. Plaintiff did m ention federal and state law when expressing her disagreem ent with the Lunch policy at issue. The content of Plaintiff’s first alleged com plaint, however, relates to her belief that no law required an unpaid lunch period for adult em ployees. In that regard, Plaintiff does not provide evidence that she asserted FLSA rights to be paid for her lunch period. Plaintiff provides no evidence that she com plained that the rule violated law or was otherwise illegal. In context, Plaintiff’s own testim ony explains that when she refused to sign the Lunch Policy her position was, “I disagreed with it, that there wasn’t a federal law, that it didn’t work with how reporters work.” Pl. Dep. 10 3:15-21. Indeed, upon ultim ately signin g the policy Plaintiff also m ade a written note, “signed under duress strongly disagree with policy.” Def. Ex. 3 (D-0 20 5). There is n o other indication of why she originally refused to sign. Id. Therefore, Plaintiff has not provided eviden ce to dispute that such statem ents, in light of their content and context, were sim ply oppositions to a policy Plaintiff stressed was n ot “conducive to how reporters worked.” Pl. Dep. 295:18 -25. 23 Sim ilarly, the Court finds that Plaintiff has not produced sufficient evidence that she engaged in protected activity by way of her inform al com plaints at the Dayforce training session in Decem ber 20 16. Plaintiff attended this training session held by Defendant Steiger, during which she expressed her concerns about the Lunch Policy. According to Plaintiff, she m ade a n um ber of statem ents regarding the Lunch policy including that (1) the policy was not federal law, (2) the policy did not work for reporters, and (3) the law required to be paid for all hours worked and “em ployees should be paid for their lunch unless they perform no work at all.”4 Pl. SMF. ¶¶ 47-57. Defendants recognize that Plaintiff contested the Policy and m entioned federal and state law in connection with her concerns at the presentation. 5 Notwithstanding, Plaintiff has failed to establish a genuine dispute of fact as to whether she engaged in protected activity. The Suprem e Court of the United States has held that “the phrase ‘filed an y com plaint’ contem plates som e degree of form ality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the m atter as part of its business con cerns.” Kasten, 563 U.S. at 14. Neither the context of Plaintiff’s statem ents nor the content offered fair notice of a grievance in which Plaintiff was asserting rights protected under the FLSA with a call to protect them . Even accepting Plaintiff’s view of the facts, she could not have been 4 Defendants have asked this Court to disregard Plaintiff’s declaration as a “sham declaration,” and afford it no weight in the court’s determ ination on this m otion. To the extent that certain facts alleged in Plaintiff’s declaration supplem ent and/ or contradict with her deposition testimony, the Court will disregard those facts. However, the Court finds that the pertinent statem ents Plaintiff provides in support of her argum ents do not present such an issue. Specifically, Plaintiff’s declaration statem ents regarding the Dayforce presentation are consistent with her deposition testimony. 5 Mr. Steiger also testified that Plaintiff com plained about the Lunch Policy and m ade statem ents about how “people” do not understand how m any hours “we” work and about her concerns that reporters cannot take lunch breaks. Steiger Dep. 39:17-40 :1, 44. 24 asserting FLSA/ NJ WHL rights because at this point (1) Plaintiff did assert that she actually worked through any lunch hour; and (2) Plaintiff did not m ake any request to be paid for any lunch hour. There is also no dispute that Plaintiff voiced her concerns with other em ployees at the Dayforce session. At that tim e, em ployees were discussing adm in istratively how and if the lunch hour should be put into their tim esheets. Multiple em ployees were raisin g general questions and concerns as to how the lunch policy would work with their schedules. Pl. SMF ¶¶ 46-49. The basis of the conversation, therefore, revolved around em ployee disagreem ent over the policy as a whole because it could not “work” with how reporters work—which plain tiff previously m ade apparent. When viewed in context, therefore, Plaintiff’s com plaints do not rise to the degree of form ality required under the FLSA. Furtherm ore, even assum ing arguendo that Plaintiff did engage in protected activity when she com plain ed about the Lunch Policy at the Dayforce presen tation, Plaintiff cannot show a causal connection between such activity an d her term ination. First, Plaintiff alleges that there is a causal relationship between her Dayforce com plaint and the disciplinary action that im m ediately followed on Decem ber 16, 20 16. Plaintiff’s discipline, however, does not constitute an adverse em ploym ent action under the FLSA. “Under the FLSA, retaliatory conduct rises to the level of a m aterially adverse action if the conduct alters the ‘em ployee’s com pensation, term s, conditions or privileges of em ploym ent, deprives him or her of em ploym ent opportunities, or adversely affects his or her status as an em ployee.’” Goins v. Newark Hous. Auth., No. CV152195, 20 19 WL 14178 50 , at *15 (D.N.J . Mar. 29, 20 19) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 130 1 (3d Cir. 1997)). Following the Dayforce training incident, the Press issued a warning against Plaintiff. That warning had n o im pact on Plaintiff’s em ploym ent. See 25 Sconfienza v. Verizon Pennsylvania Inc., 30 7 F. App'x 619, 622 (3d Cir. 20 0 8) (holding that “a warning about future penalties, which had no adverse im pact on [em ployee]'s em ploym ent, did not affect her com pensation, and did not im pede her ability to receive a transfer or prom otion” was not an adverse action under the FLSA). That leaves Plaintiff with one actionable adverse em ploym ent action, her term ination. Plaintiff does not directly argue that there is any causal relationship between her opposition to the Lunch Policy and her term ination. A causal connection m ay be established by circum stantial evidence, such as tem poral proxim ity, a pattern of antagonism , an d pretext. Kachm ar v. SunGard Data Sys., 10 9 F.3d 173, 177 (3d Cir. 1997). This indirect evidence is to “be considered with a careful eye to the specific facts and circum stances encountered.” Farrell v. Planters Lifesavers Co., 20 6 F.3d 271, 279, n. 5 (3d Cir. 20 0 0 ). Here, the Press term in ated Plaintiff’s em ploym ent on J uly 5, 20 16, m ore than 6 m onths after her com m ents regarding the policy at the Dayforce training session. Thus, the tem poral proxim ity is insufficient to establish a causal link. See Goldsm id v. Lee Rain, Inc., No. CIV.A. 12-3666, 20 14 WL 495717, at *6 (D.N.J . Feb. 6, 20 14) (finding three-m onth gap not unusually suggestive to establish causal link). “Where the tim e between the protected activity and adverse action is not so close as to be unusually suggestive of a causal connection standing alone, courts m ay look to the intervening period for dem onstrative proof, such as actual antagonistic conduct or anim us against the em ployee.” Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 30 2 (3d Cir. 20 0 7), as am ended (Aug. 28, 20 0 7). Here, the evidence presented does not raise an inferen ce that the reason for Plaintiff’s term ination was her assertion of FLSA rights. While Plaintiff’s brief suggests that her em ploym ent in the interven ing m onths between her com plaints and her term ination present a causal connection, the Court disagrees. 26 The record is undisputed in that other em ployees discussed and disagreed with the Lunch Policy, openly agreed with Plaintiff’s views about the policy, and m ade negative statem ents concerning the Lunch Policy in front of m anagem ent. Pl. Dep. 295:18-25; see also Pl. Ex. 1. According to Plaintiff, Defendants did not discipline or term inate these other em ployees. Under these circum stances, Plaintiff’s testim ony and argum ents raise an inferen ce against retaliatory m otive. Plaintiff does not provide evidence of specific com parators to show that she was treated less favorably than em ployees who did not engage in what Plaintiff alleges was protected activity. Accordingly, the Court finds that Plaintiff fails to create a genuine issue for the J ury. Therefore, the Court grants sum m ary judgm ent in favor of Defendant on each of Plaintiff’s retaliation claim s in Count I. B. Pla in tiff’s CEPA claim Defendants m ove for sum m ary judgm ent on Count III of Plaintiff’s Com plaint. Count III alleges violations of the New J ersey Conscientious Em ployee Protection Act (“CEPA”). Plaintiff claim s that Defendants retaliated against her for objecting to certain policies and practices in contravention to CEPA by “subjecting plaintiff to pretextual discipline and ultim ately term inating plaintiff.” Com pl. ¶¶ 92-94. Defendant argues that Plaintiff again cannot establish her prim a facie case to sustain a claim for retaliation, specifically that she cannot show she engaged in protected whistleblowing. Even if Plaintiff can establish a prim a facie case, Defendant further argues that her claim fails because she cannot show her term ination was pretextual. Def. Brf. 18. The Court disagrees, genuine factual disputes preclude Sum m ary J udgm ent on Plaintiff’s CEPA claim . 27 CEPA provides in pertinent part that: An em ployer shall not take any retaliatory action against an em ployee because the em ployee does any of the following: a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the em ployer, or another em ployer, with whom there is a business relationship, that the em ployee reasonably believes: (1) is in violation of a law, or a rule or regulation prom ulgated pursuant to law . . . or (2) is fraudulent or crim inal . . . b. Provides inform ation to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation prom ulgated pursuant to law by the em ployer, or another em ployer, with whom there is a business relationship; or c. Objects to, or refuses to participate in an y activity, policy or practice which the em ployee reasonably believes: (1) is in violation of a law, or a rule or regulation prom ulgated pursuant to law; (2) is fraudulent or crim inal; or (3) is incom patible with a clear m andate of public policy concerning the public health, safety or welfare or protection of the environm ent. N.J . Stat. Ann. § 34:19-3. CEPA is “rem edial legislation’ m eant ‘to protect em ployees who report illegal or unethical workplace activities.’” Dom inguez v. Costco Wholesale Corp., 356 F. App'x 611, 613 (3d Cir. 20 0 9) (quoting Flem ing v. Corr. Healthcare Solutions, Inc., 751 A.2d 10 35, 10 38 (N.J . 20 0 0 )). The fram ework for analyzing CEPA claim s is an alogous to FLSA an d NJ LAD claim s, which use the McDonnel Douglas burden-shifting fram ework. Donofry v. Autotote Sys., Inc., 795 A.2d 260 , 269 (N.J . App. Div. 20 0 1) (“It is also plain that the m ethods of proof and the applicable burdens in LAD and CEPA cases generally follow Title VII law, and we therefore frequently look to federal as well as state discrim ination and retaliation cases as precedent.”). Therefore, the plaintiff m ust m eet her initial burden by establishing a prim a face case. To establish a prim a facie face of retaliation under CEPA, plaintiff “m ust dem onstrate that (1) he or she reasonably believed that the em ployer's conduct violated a law, rule, or regulation prom ulgated pursuant to law, or a clear m andate of public policy; (2) he or she 28 perform ed a “whistle-blowing” activity described in [the act] (3) an adverse em ploym ent action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse em ploym ent action.” Id. at 614. 1. W histleblow er Activity Plaintiff claim s she “m ade m ultiple disclosures that constitute whistleblowing activity under CEPA,” including: (1) Disclosing and objecting to the Press’ Dress Policy as discrim inatory; (2) participating in a DOL investigation and providing the DOL with inform ation; and, (3) objecting to the Lunch Policy and refusing to sign it. 6 First, the Court will address Plaintiff’s participation in the DOL investigation again st her em ployer. Plaintiff has supplied docum entation, such as e-m ails between herself and a DOL investigator, as eviden ce of her participation and com m unication with the DOL. Defendants argue that Plaintiff failed to supply those docum ents in discovery. Pursuant to the Federal Rules of Civil Procedure “if a party fails to provide inform ation or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that inform ation or witness to supply evidence on a m otion, at a hearing, or at a trial, unless the failure was substantially justified or is harm less.” Fed. R. Civ. P. 37(c)(1). Therefore, Defendants argue that the Court should not consider the e-m ail exchange between Plaintiff and the DOL. The Court agrees. Moreover, even if the Court were to consider the docum ents Plaintiff has attached to its m otion, those docum ents fail to provide any eviden ce that Defendant knew about Plaintiff’s participation in any investigation. Thus, 6 Plaintiff’s Complaint also discusses that Plaintiff reported her belief that the Defendants had violated her HIPPA right to one other supervisors. Defendant’s address this allegation in their brief and argue that Plaintiff did not engage in CEPA protected activity because she is the one who first divulged the personal inform ation to m ore than one staff m em ber. Plaintiff disregards this argum ent and does not allege facts relating to this incident in her brief. Accordingly, Plaintiff does not oppose Defendant’s argum ent and the Court will not address the issue in detail. 29 Plaintiff cannot show that she participated in whistleblowing activity by way of her participation in the DOL investigation. See Dom inguez v. Costco Wholesale Corp., 356 F. App’x 611, 614 (3d Cir. 20 0 9) (affirm ing sum m ary judgm ent in favor of the defendant on plaintiff’s CEPA claim where plaintiff pointed to no evidence that the decisionm akers or m anagers in volved in plaintiff’s term ination knew about his protected activity prior to their decision). With regard to Plaintiff’s com plaints about the Press’ Lunch Policy, the Court has already explained in detail supra the content and context of those statem ents. The Court reiterates that Plaintiff’s objections to the Lunch Policy did not assert that the policy itself was illegal, rather her objections expressed strong disagreem en t with the policy based on Plaintiff’s belief that the policy was incom patible with her role as a reporter. Although CEPA is liberally construed, “CEPA is not intended to shelter every alarm ist who disrupts his em ployer's operations by constantly declaring that illegal activity is afoot—or, as in this case, is about to be afoot.” Blackburn v. United Parcel Serv., Inc., 179 F.3d 8 1, 94 (3d Cir. 1999). In contrast, Plaintiff’s com plaints about the Dress Policy do constitute whistleblowing activity under CEPA. Here, Plaintiff explicitly told her supervisor that she thought her em ployer’s dress policy was sexist and discrim in ated on the basis of gender, as it was unfair to fem ale em ployees. As such, Plaintiff disclosed to a supervisor that a policy of her em ployer was in violation of a law, protected under N.J . Stat. Ann. § 34:19-3(a)(1) and objected to said policy, protected under § 34:19-3(c). Contrary to Defendant’s argum ent—that Plaintiff’s disagreem ent with the dress policy was a “private concern,” not covered by CEPA—“CEPA’s protection from retaliation extends to the disclosure of discrim inatory conduct by a person or com pany with whom an em ployer 30 m aintains a busin ess relationship.” Sam ple v. Marketstar Corp., No. CIV.A. 12-5538, 20 14 WL 3894262, at *7 (D.N.J . Aug. 7, 20 14). Plaintiffs opposition to what she believed was a discrim inatory em ploym ent practice of an em ployer, is protected under CEPA. Roach v. TRW, Inc., 572, 727 A.2d 10 55, 10 63 (N.J . Super. App. Div.), cert. granted, cause rem anded, 743 A.2d 847 (N.J . 1999); see also Tegler v. Glob. Spectrum , 291 F. Supp. 3d 565, 588 (D.N.J . 20 18) (finding that a reasonable fact finder could conclude that conversations about behavior reasonably believed to violate the NJ LAD “were the sort of ‘objection’ or ‘disclosure’ contem plated and protected by CEPA”). 2. Casual Connection Defendants argue that even if Plaintiff engaged in whistleblower protected activity that she cannot establish a causal relationship between any such activity and an adverse em ploym ent action. Briefly, the Court m ust first address the adverse em ploym ent actions asserted by Plaintiff, which are identical to those Plaintiff alleged in support of her FLSA/ NJ WHL retaliation claim , and som e of which occurred prior to her com plaint about the Press’ Dress Policy. Under CEPA “retaliatory action” is defin ed as “the discharge, suspen sion or dem otion of an em ployee, or other adverse em ploym ent action taken again st an em ployee in the term s and conditions of em ploym ent.” Ehling v. Monm outh-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 673 (D.N.J . 20 13) (quoting N.J . Stat. Ann. 34:19– 2(e)); see Keelan v. Bell Com m unications Research, 674 A.2d 60 3 (N.J . Super. App. Div. 1996) (“The definition of retaliatory action speaks in term s of com pleted action. Discharge, suspension or dem otion are final acts. ‘Retaliatory action’ does not encom pass action taken to effectuate the ‘discharge, suspen sion or dem otion.’”). Plaintiff’s allegations that certain disciplinary actions constitute adverse actions alone 31 m ust fail as “allegations of retaliation [that] are m inor an d have no im pact on either plaintiffs’ com pensation or rank” are not adverse em ploym ent actions. Hancock v. Borough of Oaklyn, 790 A.2d 186, 193 (N.J . Super. App. Div. 20 0 2) (citing Zam boni v. Stam ler, 8 47 F.2d 73, 82 (3d Cir. 1988)). Therefore, for the sam e reasons stated in the Court’s analysis above, the only actionable adverse em ploym ent action that Plaintiff experienced was her J uly 20 16 term ination. To dem onstrate a causal link between Plaintiff’s term ination and her com plaints about the Press’ Dress Policy, she “m ust show that the ‘retaliatory discrim in ation was m ore likely than not a determ inative factor in the decision.”’ Choy v. Com cast Cable Com m c'ns, LLC, 629 F. App'x 362, 365 (3d Cir. 20 15) (quoting Donofry v. Autotote Sys., Inc., 795 A.2d 260 , 271 (N.J . Super. App. Div. 20 0 1)). One way to establish causation is through tem poral proxim ity. However, “[i]t is im portant to em phasize that it is causation, not tem poral proxim ity itself, that is an elem ent of plaintiff's prim a facie case, and tem poral proxim ity m erely provides an evidentiary basis from which an inference can be drawn.” Kachm ar v. SunGard Data System s, Inc., 10 9 F.3d 173, 178 (3d Cir. 1997). Here, Plaintiff cannot establish a strong inference of retaliation from tem poral proxim ity alone. Plaintiff objected to the Dress Policy on or about April 11, 20 16 and was term inated on J uly 5, 20 16, alm ost 3 m onths later. See Choy v. Com cast Cable Com m c'ns, LLC, 629 F. App'x 362, 365 (3d Cir. 20 15) (finding even a “six-week period fails to raise an inference of causation”). Retaliation m ay also be inferred “from the circum stances surrounding the em ploym ent action including . . . inconsistencies or contradictions in the em ployer’s proffered legitim ate reasons for its action,” and “circum stantial evidence of a pattern of antagonism following plaintiff’s protected conduct.” Robles v. U.S. Envtl. Universal 32 Servs., Inc., 469 F. App’x 10 4, 10 7– 0 8 (3d Cir. 20 12) (citations om itted); Kachm ar, 10 9 F.3d at 177 (citations om itted). In this case, Plaintiff alleges that “the facts, the circum stances and whole story of the ten m onths between Plaintiff’s first protected activity and her term ination dem onstrate causation and pretext.” Pl. Op. at 24. First, Plaintiff provides sufficient eviden ce that, if believed, shows she was treated differently from others prior to her term ination, after her opposition to the Dress Policy. Plaintiff claim s that she was disciplined unfairly for failing to input her tim e shortly after her com plaints regarding the Dress policy. She contends that other em ployees were given m ore tim e to com ply the Dayforce system before being threatened with discipline. Indeed, Mr. Steiger acknowledged that other em ployees were failing to record their own tim e, yet he could not recall anyone, besides plaintiff, who was disciplined for that failure. Pl. Ex. 13. Weeks after Defendants disciplined Plaintiff, on J une 7, 20 16, Mr. Steiger sent an e-m ail stating, “effective this week, if an em ployee is not inputting their hours, I will contact the m anager of the departm ent to begin with the process of disciplinary action.” Id. Though Mr. Steiger testified that Plaintiff was written up because her failure to put in her tim e was “habitual,” his J une e-m ail recognizes that he was “clocking m any of [em ployees] in and out on a regular basis.” Steiger Dep. 167 (em phasis added). Days after receiving that e-m ail, Plaintiff wrote to Mr. Steiger concern ed that she was being written up without warning, while it seem ed no one else was. Pl. Ex. 15. Plaintiff also argues that her discipline for the J ohn Brooks an d Fire Chief stories were “based on false allegations.” Pl. Op. at 19. The record is replete with disputes over the underlying facts as to these two instances, for which Plaintiff denies the allegations that she m issed deadlines an d was not com m unicating with her supervisor. The Court 33 finds that at the very least, there is sufficient evidence to establish weaknesses, im plausibilities in Defendants’ explanations of Plaintiff’s discipline. The e-m ail chains, text m essages, an d disciplinary action show that Plaintiff did, at som e point, write the story she was assigned, subm itted both stories, and com m unicated with her supervisor. Viewing the facts in a light m ost favorable to Plaintiff, as the Court m ust, the record presents in consisten cies in the disciplin ary actions in dispute, which form at least part of the basis for Plaintiff’s term ination. Levins v. Braccia, No. A-4290 -0 7T2, 20 0 9 WL 1658 610 , at *7 (N.J . Super. Ct. App. Div. J une 16, 20 0 9) (“If an em ployer gives a false reason or in consistent explanations for the challenged em ploym ent action, that circum stance can be relevant to a determ ination of causation.”). Furtherm ore, a reasonable fact finder could infer retaliatory anim us from the contradicting evidence surrounding Plaintiff’s discipline. Therefore, the Plaintiff has provided sufficient eviden ce of causation. If a Plaintiff can establish a prim a facie case of retaliation under CEPA, the burden shifts to the defendant to articulate a legitim ate non-retaliatory reason for its adverse em ploym ent action. Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir. 1999). The parties do n ot dispute that Defendants have m et their burden an d provided a legitim ate non-retaliatory reason for Plaintiff’s term ination. Defendants’ articulated that Plaintiff was term inated pursuant to her perform ance issues, failure to abide by com pany policies, unsatisfactory work quality, lack of com m unication, and disrespectful conduct. Def. Brf. At 25-26. 7 Plaintiff’s term ination resulted from her J uly 5, 20 16 7 Defendants cite to the num erous disciplinary actions instituted against plaintiff and docum ented as well as e-m ail exchanges and testim ony m ainted in this record to support its reasons. 34 disciplinary action, specifically recom m en din g Plaintiff be term inated. That recom m en dation further provided the following reasons: Plaintiff’s failure to com m unicate with her supervisors regarding hours worked and assignm ents, failure to tim ely fill in her tim e sheets, derogatory and unprofessional com m ents, and reluctance to take on an assignm ent because it was not on “her term s.” “Once the defen dant articulates a legitim ate reason for the adverse em ploym ent action, the presum ption of retaliatory discharge created by the prim a facie case disappears and the burden shifts back to the plaintiff. Then, “[t]o prevail at trial, the plaintiff m ust convince the factfinder both that the reason [given by the em ployer] was false, and that [retaliation] was the real reason.” Blackburn v. United Parcel Serv., Inc., 179 F.3d 8 1, 92 (3d Cir. 1999) (quoting Woodson v. Scott Paper Co., 10 9 F.3d 913, 920 n.2 (3d Cir. 1997) (internal quotations om itted)) (citations om itted). At the sum m ary judgm ent stage, “the court m ust determ ine whether the plaintiff has offered sufficient eviden ce for a reasonable jury to find that the em ployer’s proffered reason for the discharge was pretextual and that retaliation for the whistleblowing was the real reason for the discharge.” Id. at 92– 93 (3d Cir. 1999). Here, Plaintiff provides sufficient eviden ce for a reasonable jury to conclude that Defendants proffered reasons for Plaintiff’s term ination are pretextual. First the record creates a genuine factual dispute as to Plaintiff’s alleged perform ance problem s. As previously explain ed, Defendants cannot dispute that other em ployees were also failing to input tim e in Dayforce. Yet Mr. Steiger cannot recall disciplining any of those other em ployees. To be sure, Plaintiff was given m ultiple rem inders to input her tim e worked into Dayforce; one rem inder notified Plaintiff that a form al warning would ensue of she did not begin to input her tim e. However, a form al warning resulted from sam e incident 35 that prom pted this rem inder. Mr. Steiger distinguishes Plaintiff’s conduct and justifies her warning by explain ing that Plaintiff’s failure to record tim e in Dayforce was a habitual problem . Even if Plaintiff’s conduct was “habitual,” she explained to Defendants that she could not record her tim e from hom e. She also provides eviden ce that the com pany rules for recording tim e were not clear. Specifically, she was told not to put in tim e worked before actually working those hours and therefore, could not always input tim e while in the office. The record does not contain docum entation of unsatisfactory work quality other than an in cident in March 20 16 concerning a m isidentified n am e in Plaintiff’s story, which is disputed by Plaintiff. Interestingly, that incident was not docum ented in Plaintiff’s personnel file until May 20 16 after Plaintiffs Com plaints. Less than one m onth prior to Plaintiff’s term ination Mr. Keough, rejecting Plaintiff’s request for a new supervisor stated, “you’ve had som e strong stories lately.” Pl. Ex. 20 . The record also lacks eviden ce that Plaintiff was ever disciplin ed in her long tenure with the Press before late 20 15. Defendants also claim that Plaintiff failed to abide by com pany policies, without citation to which policies they refer to. Although Defendants docum ented Plaintiff’s alleged failure to follow “unwritten policies,” Ms. Loder testified that news room did not have unwritten com pany policies. Finally, Plaintiff was disciplined m ore than once for underlying issues of lack of com m unication, and disrespectful conduct, such as “unprofessional e-m ails.” Defendants claim Plaintiff’s lack of com m unication caused staffing problem s and Mr. Keough testified that Ms. Loder discussed com m unication difficulties she had with Plaintiff. Keough Dep. 39. Mr. Hughes also had problem s “with being unable to reach [Plaintiff], com m unicate with her.” Id. The Court finds, however, that genuine disputes 36 of m aterial fact as to Plaintiff’s com m unication are also present in the record. Plaintiff has provided e-m ails showing her com m unications efforts with Ms. Loder. Those em ails claim that Plaintiff responded to text m essages from Ms. Loder and other em ployees. Even Defendants’ final disciplin ary action against Plaintiff conflicts with other evidence in the record. Although Plaintiff was disciplined for failure to com m unicate, the written discipline references several com m unications that Ms. Loder did have with Plaintiff. Additionally, Plaintiff was disciplin ed in-part for not recording her tim e worked on the Wednesday shift before the end of that day, even though the record shows that Plaintiff was told to have hours recorded “by at least the end of the week.” Therefore, the Court finds that a reasonable fact finder could conclude that Defendants stated reasons for Plaintiff’s term ination are unworthy of credence and therefore, that Plaintiff’s whistleblowing was the reason for her term ination. C. Pla in tiff’s Claim s u n d e r th e N e w Je rs e y Law Again s t D is crim in atio n Defendants m ove for sum m ary judgm ent on Plaintiff’s claim s under the New J ersey Law Again st Discrim in ation (“NJ LAD”). First, they argue that Plaintiff’s discrim in ation claim fails because Plaintiff cannot establish a prim a facie, as the record lacks any eviden ce that could give rise to an inferen ce of discrim ination. Second, Defendants argue that Plaintiff’s retaliation claim also fails because Plaintiff cannot show she engaged in protected activity. The NJ LAD “was enacted with the express purpose of protecting civil rights, particularly in the area of em ploym ent discrim ination, where the NJ LAD declares that the opportunity to gain em ploym ent without fear of discrim in ation is a civil right.” Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520 , 534 (D.N.J . 37 20 0 8); see Fuchilla v. Laym an, 537 A.2d 652, 660 (N.J . 1988) (“[T]he overarching goal of the [NJ LAD] is nothing less than the eradication ‘of the cancer of discrim ination.’” (quoting J ackson v. Concord Co., 253 A.2d 793, 799 (N.J . 1969))). The New J ersey Suprem e Court has explained that the NJ LAD is broad rem edial legislation, designed to prohibit em ployers from discrim inating again st em ployees with respect to the term s and conditions of their em ploym ent on the basis of a protected characteristic, such as race, religion, age, sex, and disability. See Quinlan v. CurtissWright Corp., 8 A.3d 20 9, 220 (N.J . 20 10 ) (“We have been vigilant in interpreting the [NJ LAD] in accordance with that overarching purpose, and in recognition that it is . . . rem edial legislation that was intended to be given a broad and liberal interpretation.”); see also N.J . Stat. Ann. § 10 :5-12(a) (listing the various protected classes under the NJ LAD). NJ LAD additionally provides that it is unlawful “[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a com plaint . . . under this act. . . .” N.J . Stat. Ann. § 10 :5– 12(d)12(d). Discrim ination an d retaliation claim s brought under the NJ LAD are both analyzed under the abovem entioned flexible burden-shifting fram ework established by the United States Suprem e Court in McDonnell Douglas. Viscik v. Fowler Equipm ent Co., 8 0 0 A.2d 8 26 (N.J . 200 2); J ackson v. Trum p Entm 't Resorts, Inc., 149 F. Supp. 3d 50 2, 50 9 (D.N.J . 20 15). Under the McDonnell Douglas fram ework, plaintiff has the initial burden of establishing a prim a facie case of discrim in ation by pointing to evidence in the record sufficient to create a genuine factual dispute that “s/ he suffered an adverse em ploym ent action . . . under circum stances that could give rise to an inference of 38 intentional discrim in ation” on the basis his/ her protected class. Makky v. Chertoff, 541 F.3d 20 5, 214 (3d Cir. 20 0 8). Here, Plaintiff claim s Defendants unlawfully discrim inated against her on the basis of her gender by (1) “m aking and enforcing policies solely related to gender;” and, (2) allowing a Press editor to “assign favorable stories to his live in girlfriend in stead of plaintiff.” Com pl. ¶ 85. Plaintiff also claim s that “Defendant Steiger retaliated against plaintiff for her objections and claim s of discrim ination with respect to sex based policies of defendant which im pacted wom en and were otherwise discrim in atory.” Id. at ¶ 8 8 . She further alleges that “Defendants’ Loder an d Steiger aided and abetted the discrim inatory treatm ent of plaintiff” and Defendants Keough an d Loder particularly aided and abetted such treatm ent by “disciplining plaintiff for her com plaints.” Id. at ¶¶ 8 5-8 9. 1. Discrim ination under N JLAD Plaintiff’s first claim for discrim in ation is based on the Press’ groom and dress policy. The NJ LAD provides that: Nothing in the provisions of this section shall affect the ability of an em ployer to require em ployees to adhere to reasonable workplace appearance, groom ing and dress standards not precluded by other provisions of State or federal law, except that an em ployer shall allow an em ployee to appear, groom and dress consistent with the em ployee's gender identity or expression. N.J .S.A. 10 :5– 12(p). Here, the appearance policy at issue was im plem ented for all em ployees at the Press and institutes a business casual attire for both genders. It is undisputed that the policy applies to both the m en and wom en. Plaintiff alleges that the policy was, nonetheless, discrim in atory toward wom en because it required wom en to 39 wear pantyhose, dictated their type of shoe wear, an d allowed exceptions only for m ale em ployees. Plaintiff’s Com plaint ignores the fact that the policy was revised to elim inate her m ain com plaints. Under the policy in place at the tim e Plaintiff was em ployed at the Press, wom en were not required to weary pantyhose and were perm itted to wear heels, so long as they were no higher than 3 inches. The policy contained other restrictions on footwear, but they applied to both m en and wom en. In fact, Plaintiff adm its that the revisions at least “partially” addressed her concerns. She testified that her real “issue” with the policy was that the IT departm ent was given an exem ption. To that extent, it is undisputed that the IT Departm ent was given an exception for the no jean policy. The IT departm ent, however, was not the only departm ent given that expectation, the warehouse personnel and the pre-press personnel were also perm itted to wear jeans. Plaintiff took no opposition to those exceptions. Her concerns regarding the IT departm ent stressed that it was an all-m ale departm ent. Notwithstanding, such exception was not gen der based. The Dress Policy was tailored to consider “custom er contact,” which was not an aspect of IT (or other exem pt departm ents). Def. Ex 3. Thus, the exem pt departm ents were unlike Plaintiff’s position. It is also reasonable of Defendants to conclude that the duties perform ed by IT personnel warrant an alteration of Dress Policy. Moreover, “[w]hen an em ployer’s ‘reasonable workplace appearance, groom ing and dress standards’ com ply with State or federal law prohibiting discrim in ation, even if they contain sex-specific language, the policies do not violate Title VII, and by exten sion, the [NJ ]LAD.” Schiavo v. Marina Dist. Dev. Co., LLC, 123 A.3d 272, 291 (N.J . App. Div. 20 15). Therefore, Plaintiff fails to show Defendants’ policy was discrim inatory. 40 Plaintiff’s next allegation of gender discrim in ation is for disparate treatm ent. To establish a prim a facie case of gender discrim ination, Plaintiff m ust show that: (1) she is a m em ber of a protected class; (2) was qualified for the position; (3) suffered an adverse em ploym ent decision; and (4) the adverse em ploym ent action was m ade under circum stances that give rise to an inferen ce of unlawful discrim ination. J ones v. Sch. Dist. of Philadelphia, 198 F.3d 40 3, 412 (3d Cir. 1999); Santosuosso v. NovaCare Rehab., 462 F. Supp. 2d 590 , 599 (D.N.J . 20 0 6). Plaintiff alleges discrim ination based on assertions that an editor, Mr. Hughes, gave preferential treatm ent to his live-in girlfriend, another fem ale em ployee. Defen dant argues that Plaintiff fails to provide any evidence that could give rise to an inferen ce of discrim ination. The Court agrees. The record supports only that Plaintiff subjectively preferred the assignm ent of another fem ale em ployee, who happened to be the editor’s girlfriend. 8 See Erickson v. Marsh & McLennan Co., 569 A.2d 793, 8 0 2 (N.J . 1990) (finding “no reason to extend the protection of LAD to sex-discrim ination claim s based on voluntary personal relations in the work place”). In fact, the record is devoid of an y eviden ce that Plaintiff was treated differently from any other m ale em ployees. Therefore, Plaintiff fails to provide evidence that she was discrim inated because of her sex. Thus, the Court grants sum m ary judgm ent in favor of Defendant on Plaintiff’s claim s for discrim ination under the NJ LAD in Count II. 9 8 The assignm ent at issue was not even included in Plaintiff’s ordinary work. However, the fem ale em ployee was indisputably qualified to handle the assignm ent. 9 The Court notes that Plaintiff further abandons her discrim ination claim by failing to address it entirely in her opposition brief. 41 2. Retaliation under N JLAD Plaintiff’s Com plaint also alleges a retaliation claim under the NJ LAD. To establish a prim a facie case of retaliation, Plaintiff m ust show that (1) she engaged in a protected activity known to the defendant; (2) she was thereafter subjected to an adverse em ploym ent decision by the defendant; and (3) there was a causal link between the two. Moore v. City of Philadelphia, 461 F.3d 331, 340 – 41 (3d Cir. 20 0 6). “The central elem ent of a retaliatory discharge claim under LAD is that the plaintiff be ‘engaged in a protected activity, which is known by the alleged retaliator.”’ Erickson, 569 A.2d at 80 3 (quoting Velantzas v. Colgate– Palm olive Co., 536 A.2d 237 ( N.J . 1988)). Here, Defendants assert that Plaintiff has not engaged in protected activity and therefore, fails to m eet her initial burden. “[A] person engages in a protected activity under the LAD when that person opposes an y practice rendered unlawful under the LAD.” Young v. Hobart W. Grp., 897 A.2d 10 63 (N.J . Super. App. Div.20 0 5); Bradley v. Atl. City Bd. of Educ., 736 F. Supp. 2d 8 91, 90 0 (D.N.J . 20 10 ) (“protected activity includes ‘opposing practices or acts forbidden under [the statute]’ as well as filing a com plaint.” (citations om itted)). To be considered protected activity, an em ployee’s com plaint “m ust concern discrim in ation” and m oreover, m ust be m ore than a general com plaint of unfair treatm ent. Dunkley v. S. Coraluzzo Petroleum Transporters, 98 A.3d 120 2, 120 8 (N.J . Super. App. Div. 20 14); Barber v. CSX Distrib. Servs., 68 F.3d 694, 70 2 (3d Cir. 1995). Here, Plaintiff contends that her “objection” to Mr. Hughes allotting his girlfriend a m ore favorable assignm ent constitutes protected activity under NJ LAD. Pl. Op. at 21. This com plaint, however, did not concern discrim ination. At no point did Plaintiff com plain that she was given less favorable assignm ents because she was a wom an. 42 Rather, her objection was a gen eral com plaint of what she subjectively viewed as unfair treatm ent. Therefore, Plaintiff did not engage in protected activity under the NJ LAD when she questioned supervisor and em ployee relationships. Plaintiff also alleges that she engaged in protected activity by: “objecting to the dress code policy, equality notice, [and] unequal pay and prom otions am ong m en and wom en.” Pl. Op. at 13. Plaintiff’s Com plaint does not plead any facts or claim s regarding objections to unequal pay or the Press’ Equality Notice. Accordingly, the Court will not consider those acts as eviden ce that Plaintiff engaged in protected activity. 10 As for Plaintiff’s com plaints that the Press’ Dress Policy was “sexist” toward wom en, the Court finds that such com plaint qualifies as protected activity pursuant to NJ LAD. It is undisputed that Plaintiff told Mr. Steiger about her concerns with the Dress Policy, which she felt was discrim inatory. See Def. SMF ¶ 34; Pl. SMF ¶ 8 5. As previously stated, Plaintiff thought the policy was sexist towards wom en. Although revisions to the Policy addressed a num ber of the issues Plaintiff had with the Policy, at the tim e of her com plaint, Plaintiff was unaware of those changes, and persisted to object. Def. SMF ¶¶ 34-35. According to the New J ersey Suprem e Court, “when an em ployee voices a com plaint about behavior or activities in the workplace that he or she thinks are discrim inatory, [the court does] not dem and that he or she accurately understand the nuances of the [NJ ]LAD or that he or she be able to prove that there was an identifiable 10 Courts have granted sum m ary judgm ent on claim s a plaintiff asserts based on new theories of liability. New theories of liability set forth in responsive papers to a m otion for sum m ary judgm ent are “generally considered ‘too late’” and thus, do not create genuine issue of m aterial fact to preclude summ ary judgm ent. Bell v. Lockheed Martin Corp., 20 14 U.S. Dist. LEXIS 87485, *76 (D.N.J . J une 27, 20 14); Laurie v. Nat'l Passenger R.R. Corp., 105 F. App'x 387, 392 (3d Cir. 20 0 4). 43 discrim inatory im pact upon som eone of the requisite protected class.” Id. Therefore, it is inapposite that Plain tiff has not produced sufficient evidence to show the Press’ Dress Policy was in fact discrim inatory or that she and/ or other fem ale em ployees were treated differently based on their gen der. The NJ LAD does require a reasonable “good faith belief that the conduct com plained of violates the [Act].” Battaglia v. United Parcel Serv., Inc., 70 A.3d 60 2, 620 ( N.J . 20 13). Here, Defendants do not suggest or argue that Plaintiff acted in bad faith. Therefore, Plaintiff engaged in protected activity when she opposed the Press’ Dress Policy. The issue then, is that when “a plaintiff’s ‘state law claim s arise from the sam e set of facts surrounding his[/ her] [CEPA] retaliation claim ,” CEPA’s waiver provision deem s those state claim s waived. N.J . Stat. § 34:19– 8 ; Baldassare v. State of N.J ., 250 F.3d 188 , 20 2 (3d Cir. 20 0 1) (“CEPA prohibits litigating duplicative claim [s].”) In the present case, Plaintiff’s CEPA claim survives based only on Plaintiff’s whistleblowing activity concerning her opposition to the Dress Policy. Therefore, her CEPA and NJ LAD retaliation claim are based entirely on the sam e conduct, for which Plaintiff provides the sam e eviden ce. As such, the Court will dism iss Plaintiff’s retaliation claim under NJ LAD because it is now subsum ed under CEPA. See Sm ith v. Twp. Of E. Greenwich, 519 F. Supp. 2d 493, 510 (D.N.J . 20 0 7), aff'd, 344 F. App'x 740 (3d Cir. 20 0 9), as am ended (Nov. 3, 20 0 9). Accordingly, the Court will grant sum m ary judgm ent on Plaintiff’s NJ LAD retaliation claim , and dism iss Count II of Plaintiff’s Com plaint. D . Pu n itive D am age s Defendants also m ove for sum m ary judgm ent on Plaintiff’s claim s for punitive dam ages. They argue that Plaintiff “cannot present any evidence of conduct that exhibits m alice or reckless disregard for her rights,” or produce an y evidence of “particularly 44 egregious conduct” so as to hold Defendants liable for punitive dam ages. Def. Brf. at 2932. The Court Agrees. The only rem aining claim from which Plaintiff m ay seek punitive dam ages, is her CEPA retaliation claim (COUNT III). Under CEPA, “[p]unitive dam ages are to be awarded ‘when the wrongdoer’s conduct is especially egregious.’” Lehm ann v. Toys R Us, Inc., 626 A.2d 445, 464 (N.J . 1993) (quoting Leim gruber v. Claridge Assocs., 375 A.2d 652 (N.J . 1977)). An em ployer m ay only be liable for punitive dam ages if there was “actual participation by upper m anagem ent or willful indifference.” Abbam ont v. Piscataway Twp. Bd. of Educ., 138 N.J . 40 5, 419 (1994). The Suprem e Court of New J ersey has explained that “to be a part of ‘upper m anagem ent,’ ‘the em ployee should have either (1) broad supervisory powers over the involved em ployees, including the power to hire, fire, prom ote, and discipline, or (2) the delegated responsibility to execute the em ployer's policies to ensure a safe, productive and discrim ination-free workplace.’” Longo v. Pleasure Prods., Inc., 215 N.J . 48, 59, 71 A.3d 775, 782 (20 13) (quoting Cavuoti v. New J ersey Transit Corp., 735 A.2d 548, 557 (N.J . 1999)). The inquiry of who m eets the definition of “upper m anagem ent” is fact-intensive. Id. Here, the Court need not determ ine whether Plaintiff’s supervisors involved in the decision to term inate her em ploym ent were in fact upper m anagem ent because the Court finds that record in the present case lacks any eviden ce of egregious conduct. The test for egregiousness is satisfied “if plain tiff has proven ‘an intentional wrongdoing in the sen se of an evil-m inded act or an act accom panied by a wanton and willful disregard for the rights of [plaintiff].’” Id. Courts have also found sufficient eviden ce of egregious conduct where the evidence dem onstrates defendant acted with “actual m alice.” Quinlan v. Curtiss-Wright Corp., 274, 8 A.3d 20 9, 230 (N.J . 20 10 ). 45 Plaintiff has not cited to any evidence that suggests Defendants acted with m alice or willful disregard for her rights at any point during her em ploym ent. To the contrary, testim ony provides that, at tim es, Plaintiff was guided to the appropriate personnel to contact with concerns and afforded the opportunity to voice her com plaints. In addition, Defendants provide evidence of written com pany policies again st discrim in ation and retaliation, and respective com plaint procedures. Def. SMF ¶¶ 2-5, 16-19. Testim ony further reveals that em ployees, in cluding m anagem ent, underwent training on antidiscrim ination and harassm ent in the workplace. Such evidence shows the good faith effort of the Defendant em ployer. See Kolstad v. ADA, 527 U.S. 526, 544 (1999) (“[I]n the punitive dam ages context, an em ployer m ay not be vicariously liable for the discrim inatory em ploym ent decisions of m anagerial agents where these decisions are contrary to the em ployer's good faith efforts to com ply with [anti-discrim ination legislation]”). Therefore, the Court will grant sum m ary judgm ent and dism iss Plaintiff’s claim s for punitive dam ages. IV. Conclusion For the forgoing reasons, the Court GRANTS in-part an d DENIES in -part Defendants’ Motion for Sum m ary J udgm ent, dism issing Plaintiff’s FLSA retaliation claim in Count I and both of Plaintiff’s NJ LAD Claim s in Count II, and striking Plaintiff’s prayer of relief for Punitive Dam ages. An appropriate Order shall issue. Dated: Novem ber 14, 20 19 _ / s/ J oseph H. Rodriguez _ _ _ _ _ _ _ _ _ Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 46

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