Didier v. Dow Jones Co.

MONICA DIDIER, Plaintiff, v. DOW JONES COMPANY, INC., Defendant.

Civ. No. 13-0176 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

August 15, 2014

**NOT FOR PUBLICATION**

OPINION

WOLFSON, United States District Judge:

Before the Court is a Complaint filed by Plaintiff Monica Didier ("Plaintiff" or "Didier") against her former employer, Defendant Dow Jones Company, Inc. ("Defendant" or "Dow Jones"), arising out Plaintiff's involuntary termination. Specifically, Plaintiff alleges, under 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), that she was unlawfully discriminated against based on her race, ancestry, and/or ethnic characteristics, and/or that she was retaliated against for her complaints of discrimination.¹ Defendant moves for summary judgment on Plaintiff's claims, which Plaintiff opposes. For the reasons that follow, the Court grants Defendant's motion for summary judgment.

I. BACKGROUND

The following facts underlying Plaintiff's claims are undisputed unless otherwise noted.² Dow Jones publishes news and financial information in its publications The Wall Street Journal and The Wall Street Journal Europe, and on its website, WSJ.com, among others, and seeks to create a reputation of reporting information "as accurate as it can be." Def. Facts, ¶¶ 1-2, 6. From 1996 until her termination in 2011, Plaintiff was employed by Dow Jones in its Market Data Group (the "MDG"). Id. at ¶ 3. During her tenure at Dow Jones, Plaintiff worked as a data integrity analyst, and her job duties generally included collecting dividend data from different sources, and inputting that data into the corporate section of The Wall Street Journal for publication. Id. at ¶ 4. In line with these duties, Plaintiff was required to ensure, independently, that the information she submitted for publication was accurate—indeed, it was a critical part of her job to check for errors and fix those she found. Id. at ¶¶ 7-8. Prior to 2011, Plaintiff generally performed her job satisfactorily—never receiving any official, written discipline—and oftentimes received reviews indicating that her work was excellent. See id. at ¶ 5; Pl. Resp. Facts, ¶ 5.

At one point in or around January 2007, for the first time since she began working at Dow Jones, Plaintiff applied for a promotion to the position of senior data integrity analyst. Def. Facts, ¶ 9. Plaintiff spoke with one of her supervisors, Michelle Mischutin, about her promotion application; although the parties dispute the substance of this conversation, it is undisputed that Mischutin indicated to Plaintiff that, in order to be competitive for the position, an applicant would need to demonstrate proficiency in several areas of his or her work. See id. at ¶ 10; Pl. Resp. Facts, ¶ 10. Nevertheless, it is undisputed that Plaintiff was never prevented from applying for theposition by anyone in Dow Jones' management, and indeed, Plaintiff followed the standard promotion procedures at Dow Jones, and agreed to by Plaintiff's union, and had her application accepted. Def. Facts, ¶ 9, 13, 16. Ultimately, Plaintiff's coworker, Liz Jia, was promoted in February 2007 to the position instead of Plaintiff; apart from that single instance, Plaintiff never submitted an application for promotion during the rest of her time at Dow Jones. Id. at ¶ 14.

Beginning around the middle of 2010, Dow Jones reorganized the MDG, including automating a portion of the dividends collection and reporting work handled by Plaintiff, and assigned Plaintiff a new job title and the additional task of statistics reporting. See id. at ¶ 18. Plaintiff's core discrimination and retaliation claims focus on events and actions that occurred after this reorganization.

In January or February 2011, Plaintiff, who is black, complained to the MDG department head, Chris McCullough, that she was being treated unfairly with respect to her work duties and vacation schedule because of the color of her skin. Pl. Counter. Facts, ¶¶ 1, 24. Sometime thereafter, in or around February 2011, Plaintiff was informed that her work hours were being changed from 10:30 a.m. to 6:30 p.m. to 11:00 a.m. to 7:00 p.m.³ Def. Facts, ¶ 19. Plaintiff was told that these changes were made (i) because the previous work hours, i.e., employees leaving at 6:00 p.m., was creating a backlog of work in the evening; Dow Jones' managers therefore determined that it was in everyone's best interest to have appropriate employees stay until 7:00 p.m. to complete the last tables of the day, and (ii) to conform Plaintiff's work schedule with other data integrity analysts. Id. at ¶¶ 19, 31-32. Plaintiff nevertheless believed the change wasdiscriminatory and/or retaliatory because it was her understanding that all of her work obligations would always be completed by 6:00 p.m. Id. at ¶¶ 31-32; Pl. Counter. Facts, ¶ 24. After she learned that her hours were being changed, Plaintiff again met with McCullough. Def. Facts, ¶ 21. At that meeting, Plaintiff complained to McCullough that the change in hours negatively affected her personal life, and that she felt her hours were being changed mainly because of the color of her skin. Id. at ¶¶ 21-22; see also Pl. Dep., T27:19-21. Similarly—and despite the fact that all of Plaintiff's other coworkers worked the same hours as Plaintiff's new schedule—Plaintiff further complained that she felt that she was being singled out with these new hours. Def. Facts, ¶ 23, 30. Plaintiff then inquired as to whether her hours would ever revert to her previous schedule and, if not, whether there were other "options" for her employment with Dow Jones, including the possibility of a severance package. See Pl. Counter. Facts, ¶ 27.⁴ Plaintiff was later presented with a severance package amounting to approximately $24,000, first shortly after her second meeting with McCullough in early 2011, and at several other times throughout the spring months of 2011.⁵ Id. at ¶¶ 27-29. None of these offers were ever accepted by Plaintiff.

Around the same time that Plaintiff met with McCullough to complain about her hours and perceived discriminatory treatment, Plaintiff also discussed similar concerns with another one of her supervisors, Kevin McKay, the assistant director of the MDG who reported to McCullough. Def. Facts, ¶ 23. Plaintiff recalls that, in response to her complaint, McKay indicated that he wouldget back to her; however, Plaintiff never had any further discussions or direct interactions with McKay prior to her termination in July 2011. Id. at ¶ 27 n.4; Pl. Counter. Facts, ¶ 25.

During the first half of 2011, Plaintiff made numerous errors in her work, particularly in the newer area of her responsibilities with statistics compilation and publication.⁶ For example, on January 7, 2011, Plaintiff released a statistical table titled "A week in the life of the DJIA," in which the percentage change column of the table read "9999.99" for each of the thirty stocks listed therein. Def. Facts, ¶ 35. Plaintiff explained that, at the time, she did not realize her error because she had never received explicit instructions on what the data in that column should look like. Id. at ¶ 36. Similarly, in March 2011, Plaintiff made several errors on a large table called "WorldStoxx," particularly by repeatedly inputting incorrect information relating to the Venezuela market. Id. at ¶ 37. These errors were reported to Plaintiff via email from another Dow Jones employee, Matthew DiCostanzo, who reviewed the WorldStoxx table prior to publication; although Plaintiff received these emails shortly after she filed the table, it does not appear that Plaintiff ever took corrective action going forward to avoid repeating these same errors. See id. In April 2011, Plaintiff committed errors in the creation of several tables, including the WorldStoxx table again. See id. at ¶ 38. Plaintiff's problems with creating accurate WorldStoxx tables continued into May 2011, including making the same exact error after being specifically instructed to fix it the day before. See id. at ¶ 39. Plaintiff admits to making all the errors identified by Dow Jones during this time period, but it is her position that these errors were the result ofbeing poorly trained on the new statistics work to which she was assigned and, further, that errors by MDG employees were commonplace. Id. at ¶¶ 40-45; Pl. Resp. Facts at ¶¶ 39-45. However, absent from the record is any evidence that Plaintiff received less training, in any aspect of her job, than her coworkers. Def. Facts, ¶ 46.

Plaintiff received her first formal discipline for her job performance on June 2, 2011, in the form of a formal written warning issued by Plaintiff's supervisor, Cristin Hoopes, and the director of human resources, Mildred Stegman (the "June 2 Discipline"). Id. at ¶¶ 47-48. The June 2 Discipline informed Plaintiff that she had failed to show up adequately prepared for her assignments over the preceding Memorial Day holiday weekend, and that this resulted in her coworkers having to perform Plaintiff's work in addition to their own.⁷ Id. at ¶¶ 49-50. The June 2 Discipline further recounted Plaintiff's errors in creating tables in April. Id. at ¶ 51. Although Plaintiff did not recall receiving previous oral warnings from her direct supervisors, Plaintiff admits that she had trained on the wrong table in preparation for her Memorial Day weekend assignment, and that she had received several emails regarding her errors in April from DiCostanzo alerting her to the errors she was committing; it was also Plaintiff's understanding that, following the June 2 Discipline, she could be terminated for any further mistakes. Id. at ¶¶ 49, 51-52; see also Pl. Dep., T217:20-T218:23; id. at T232:5-T233:2. After receiving the June 2 Discipline, Plaintiff commented to Hoopes and Stegman that she believed the criticism of her work might have been based on the color of Plaintiff's skin. Def. Facts, 53. At this comment,...