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Cubbage v. Bloomberg

August 31, 2010


The opinion of the court was delivered by: Jones II, J.


Before the Court is Defendant Bloomberg, L.P.'s Motion for Summary Judgment (Doc. No. 53) and Plaintiff Jayne Cubbage's Response in Opposition thereto (Doc. No. 54).*fn1 For the reasons set forth below, Defendant's Motion will be GRANTED.


On October 4, 2004, Plaintiff Jayne C. Cubbage filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the New Jersey Department of Civil Rights ("NJDCR") against her former employer, Bloomberg, L.P. ("Bloomberg"). She received a right-to-sue letter from the EEOC dated March 22, 2005. On June 22, 2005, she filed her original Complaint against Bloomberg. She subsequently amended her complaint two times. Currently pending before this Court is Plaintiff's Second Amended Complaint, filed on May 5, 2008 (Dkt. No. 32). In her Second Amended Complaint, Plaintiff asserts that Bloomberg discriminated against her on the basis of her race, gender and disability. She brings claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (Count I), as well as the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq. (Count II); Plaintiff also brings a claim for intentional infliction of emotional distress ("IIED") (Count III).*fn2

On May 19, 2008, Defendant filed its Answer and Affirmative Defenses to the Second Amended Complaint (Dkt. No. 33). While originally before the Honorable Gene E.K. Pratter, this case was reassigned to my docket on November 17, 2008.

On March 2, 2009, Defendant filed its Motion for Summary Judgment ("Def. Mot."), along with its Memorandum of Law in Support of its Motion ("Def. Mem.") and Statement of Undisputed Facts ("Def. SOF") (collectively, Dkt. No. 53). Plaintiff filed her opposition ("Pl. Opp."), including her Memorandum of Law in Opposition to Defendant's Motion ("Pl. Mem."), her response to Defendant's Statement of Undisputed Facts ("Pl. SOF") and her own Statement of Contested Facts ("Pl. SOCF") (collectively, Dkt. No. 54), on March 17, 2009. Pursuant to Court Order, Defendant filed its response to Plaintiff's Statement of Contested Facts (Dkt. No. 59) ("Def. Opp. to Pl. SOCF") on April 9, 2010.



Plaintiff applied for at least two positions at Bloomberg in March 2000. (Def. Mot., Ex. 4, Deposition of Jayne Cubbage ("Cubbage Dep.") 16-19; Def.'s Mot., Ex. 6, Employment Application of Jayne Cubbage, March 31, 2000 ("App."), Bloomberg L.P. Appendix ("BLP") 149-52.) At that time, Plaintiff, an African-American female, had a bachelor's degree in journalism from Temple University, a master's degree in journalism from Columbia University, and was studying for a master's degree in liberal arts from the University of Pennsylvania. (2d Am. Compl. ¶ 10; BLP 150.) Carolynn Fedor, who managed the radio and television stations for Bloomberg, invited Plaintiff for an interview for a multimedia producer position in Bloomberg's Princeton, New Jersey office. (Cubbage Dep. 19-20; Def.'s Mot., Ex. 5, Deposition of Carolynn Fedor ("Fedor Dep.") 7-8.) Plaintiff interviewed with Fedor and members of Fedor's staff. (Cubbage Dep. 18-20, 23, 29-30.) She later returned to the Princeton office for a second interview with Fedor and the head of news. (Id. at 22.) After the second interview, Fedor made the decision to hire Plaintiff, and Plaintiff was offered a multimedia producer position. (Id. at 23; Fedor Dep. 10-11.)

Plaintiff began working as a multimedia producer on May 22, 2000. (Cubbage Dep. 29; Def.'s Mot, Ex. 7, Scheirer Offer Letter to Cubbage, April 13, 2000 ("Offer Letter").) Her direct supervisor was Jennifer Kushinka, who reported directly to Fedor. (Fedor Dep. 7-9.) Her starting salary was $55,000.00 plus six One-Year Equity Equivalency Certificates ("EECs") with a projected value of $674.00 each, for a total starting compensation of $59,044.00. (Cubbage Dep. 25-26, 30; Offer Letter.) At the time, Plaintiff was the only African-American producer in the multimedia department. (Cubbage Dep. 45).

Fedor was away on business during Plaintiff's first week of work. (Id. at 47.) When Fedor returned, Plaintiff felt she "showed a distance to" Plaintiff. (Id.) Plaintiff believed that Fedor's attitude and relationship with Plaintiff changed, as had the atmosphere at the company. (Id. at 48.) Plaintiff maintains that the shift she observed in Fedor was due to Plaintiff's change in hairstyle, from the straightened style she had worn during the interview to the natural unstraightened hairstyle she wore when she began working, although she cites no evidence in support of this belief. (Id. at 47-49.)

When Plaintiff asked to attend the National Association of Black Journalists ("NABJ") Convention to be held in July 2000, Fedor told her that she could not attend because she needed to focus on her development in the company and instead attend a financial market introduction course ("FMO") to learn the workings of the business world. (Id. at 50-51, 136-37.) Fedor told Plaintiff that the FMO course would assist Plaintiff in her position. (Id. at 137.) Other Bloomberg employees were allowed to attend the NABJ convention, but no one under Fedor's supervision was allowed to attend. (Id. at 51, 138.) When the FMO course ended in July 2000, Plaintiff received a failing grade in the course--a grade that was well below average. (Id. at 51.)

Later that month, Plaintiff attempted to leave the multimedia department. (Id. at 52.) Kushinka tried to help Plaintiff transfer, but Plaintiff learned that company policy required that she work at Bloomberg for a year before changing departments. (Id. at 52-53, 223.) Soon after her attempt to transfer, Plaintiff was caught "surfing online" for another job and was sternly warned that she would be terminated immediately if caught doing so again. (Id. at 54.)*fn4 Soon after she was reprimanded for looking at an employment website, Plaintiff saw another Bloomberg employee, editor Jerry Laird, looking at a "nude silhouette" online on one occasion, but she did not report the incident to anyone. (Id. at 425, 430-31.)

Thereafter, Plaintiff's supervisors spoke to her repeatedly about her performance. (Id. at 54, 192-93.) In June or July 2000, Fedor and Kushinka began to call Plaintiff into meetings with a Human Resources ("HR") representative to discuss Plaintiff's poor performance. (Id. at 54, 95-98.) Plaintiff was called into five or six of these meetings at approximately six-month intervals during her three years at Bloomberg; however, Plaintiff acknowledges that Fedor and Kushinka truly believed they were assisting Plaintiff to improve her performance. (Id. at 41).

Fedor also required Plaintiff to get permission directly from her when Plaintiff planned to travel to New York (Id. at 79-80), as she required any employee based in the Princeton office to offer an explanation to and seek permission from a manager to work out of the New York office. (Fedor Dep. 66-67.) Indeed, according to Plaintiff herself, Fedor had "properly surmised" that Plaintiff was looking for new jobs at Bloomberg while in New York. (Cubbage Dep. 127-28.)

When Plaintiff asked to change her schedule to complete a masters degree in liberal arts, she was informed that she required manager approval to schedule classes outside of work. (Def.'s Mot, Ex. 10, Managers Evaluation of Employee, November 2, 2000 ("November 2000 Managers Evaluation") BLP 000069.)*fn5 Plaintiff ended up attending classes at night and finished her degree in May 2001. (Cubbage Dep. 134-35.)

Plaintiff's phone calls at the office were also monitored; Fedor admitted that she requested Plaintiff's phone records because "there were some questions as to phone calls that [Plaintiff] had been making from her desk while working," and it was "customary Bloomberg policy" to request phone records "to make sure that the phone was being used for work purposes." (Fedor Dep. 30-31.) However, Fedor could not recall another employee whose records she had requested. (Id.)

Although Plaintiff believed her performance was adequate, her supervisors remained dissatisfied. (Cubbage Dep. 37, 193.) They started working closely with her to improve her accuracy and began requiring that Plaintiff provide weekly reports about her progress. (Fedor Dep. 38-39.) On November 2, 2000, Plaintiff's managers completed an evaluation of Plaintiff. (November 2000 Managers Evaluation BLP 000065-69.)*fn6 In this evaluation, the managers listed no strengths in the areas of accuracy, energy, time management, questioning skills, and listening skills, and they noted numerous development needs in these and other areas. (Id.)

At the end of November 2000, Fedor and Kushinka felt they had tried enough to help Plaintiff understand her position, and ultimately removed Plaintiff from producing duties and assigned her to format transcripts full time. (Cubbage Dep. 165-68; Fedor Dep. 12-21; Def.'s Mot., Ex. 10, Managers Evaluation, January 2001 ("January 2001 Managers Evaluation") BLP000070-71.) Plaintiff considered this to be a mundane, menial and punishing assignment. (Cubbage Dep. 165, 167.)*fn7 One other person, an African-American woman named Michelle Peal, was also doing transcript work, and Plaintiff was assigned to work as a team with Peal. (Id. at 167-68.)*fn8

Plaintiff's January 2001 Managers Evaluation noted that Plaintiff needed to improve the accuracy of her transcript work, noted positive teamwork, and listed several goals for improved accuracy and training. (January 2001 Managers Evaluation BLP000070-71.) On February 16, 2001, Plaintiff wrote to Fedor and listed some of the proactive steps she was taking to reach those goals. (Def. Mot., Ex. 10, Cubbage Email to Fedor, February 16, 2001 BLP000071-72.)

As of March 2, 2001, a performance report still noted numerous problems with Plaintiff's work quality, productivity, attendance, and work habits. (Def.'s Mot, Ex. 10, Performance Report, March 2, 2001 ("March 2001 Report") BLP000064-65.) The March 2001 Report noted that Plaintiff had "shown mediocre production quality and quantity," despite having a "huge reduction in workload and the far simpler job to accomplish" with her transcript assignment, and stated that "[i]t's difficult to understand how she can produce so little during the day when taking into account her educational and work background." (Id. at BLP000064.) The March 2001 Report also suggested that Plaintiff keep track of her daily accomplishments. (Id. at BLP000065.)

That month, Kushinka and Fedor gave Plaintiff a written warning about her performance, detailing several performance problems and stating that the problems had persisted despite numerous counseling efforts. (Def.'s Mot., Ex. 9, Kushinka and Fedor Memorandum to Cubbage, March 20, 2001 BLP 000056-57.) The written warning stated that immediate substantial and sustained improvement was necessary to prevent further discipline, up to and including termination. (Id.)

Two editors, Jerry Laird and Jim Houck, were particularly vocal critics of Plaintiff's work. (Cubbage Dep. 54-55, 199.)*fn9 Houck would "harshly critique" Plaintiff's work, "invite [her] over to his desk to stand there while he went through the elements of what was wrong in [her] reports and do so in a harsh manner, and then sort of send [her] back to [her] desk to fix whatever was--whatever the problem was." (Id. at 61.) Laird sat next to Plaintiff during her first six months at Bloomberg; he would often walk by her without speaking and was "constantly making...conservative, racist type remarks...just saying things off the cuff that were really inappropriate." (Id. at 56, 199-201.)*fn10 Plaintiff testified to two particular comments Laird made within her hearing:

[Laird] was speaking one day off the cuff about a daughter of his who had...a young friend calling her. I believe he was alluding to the fact that the young boy was African American. He said something like, His name is Terrell...and then I took that to mean racist...[I] understand that typically that's a quote/unquote, African/American name. (Cubbage Dep. 55.); and

There was a person in Texas who was pending execution...[a]nd one of the premises of the case as to whether or not he should be executed was, is he, in fact, guilty. [Laid] would comment...whether he's guilty or not, he shouldn't have engaged in a lifestyle of crime...Those people ought to know better...They always get themselves into this kind of situation. (Id. at 56.)*fn11

Plaintiff spoke with Fedor about Laird's comments during a meeting about Plaintiff's performance. (Id. at 57, 194-95, 299-300.) According to Plaintiff, someone from HR was in the room when Plaintiff complained to Fedor about Laird. (Id. at 197.) Plaintiff does not recall if she related any specific comments that Laird had made, but she did say that she found Laird's comments offensive and intimidating. (Id. at 300-01.) According to Cubbage, Fedor responded that she liked Laird's contributions and that he brought a "special flavor" to the department. (Id. at 57, 194-95.) Fedor does not recall Plaintiff complaining about Laird. (Fedor Dep. 71-72.)

In her April 6, 2001 self-evaluation, Plaintiff wrote,

My performance for the past 12 months has been marginal at best. I have struggled repeatedly to understand the requirements of multimedia. I have failed to understand how to incorporate my extensive journalism background into the producer position with multimedia. I have also not grasped important business concepts as quickly has [sic] I had hoped I would upon accepting my position in multimedia. Despite my steep learning curve, I have diligently attempted to improve my performance by meeting with editors and developing a personal strategy in multimedia based on such meetings and editor comments.

(Def.'s Mot., Ex. 8, Bloomberg News Annual Self-Evaluation, Jayne Cubbage, April 6, 2001, ("2001 Self-Evaluation") BLP 000203-04.) According to Plaintiff, the first sentence of the above paragraph was her rendition of her supervisor's opinion, but the rest of the paragraph was her own opinion. (Cubbage Dep. 37-39.) Plaintiff also wrote in her 2001 self-evaluation that:

Upon learning of my difficulties in multimedia, [b]oth Carolynn Fedor and Jennifer Kushinka have met with me on a regular basis to help determine the nature of my problems and develop subsequent solutions. Despite regular meetings, I continued to struggle with my work. While noting the extensive effort put forth by Carolynn and Jennifer, I believe there was a misunderstanding on my part in terms of what was expected of me in the department and how I should proceed in meeting those expectations. (2001 Self-Evaluation BLP 000205.)

In a May 2001 evaluation, Plaintiff's managers noted several areas of improvement and several other areas where Plaintiff still needed to improve. (Def.'s Mot., Ex. 8, Managers Evaluation, May 2001, BLP 000198-202.) At the end of Plaintiff's first year at Bloomberg, her salary remained at $55,000 and she was not awarded any additional equity equivalency certificates. (Def. Mot., Affidavit of Matthew Asman, dated March 2, 2009 ("Asman Aff.") ¶ 4.)

At the end of Plaintiff's second year at Bloomberg, Kushinka believed Plaintiff's performance was improving but was still unsatisfactory. (Def.'s Mot., Ex. 11, Bloomberg News Annual Self-Evaluation, April 1, 2002 ("2002 Self-Evaluation") BLP 000188.) Plaintiff stated that while her "performance over the past year [had] markedly improved," she "would like to continue to strive for error-free transcripts and improving Insights program." (Id. at BLP 000188, 193.)*fn12 Defendant's records indicate that between May 2001 and May 2002, Plaintiff was awarded three EECs. (Asman Aff. ¶ 4.) Defendant's records further indicate that in May 2002, Plaintiff received a raise of $2,000 and was awarded five EECs. (Asman Aff. ¶ 4.; Def. Mot., Ex. 13 ("Separation Verification") BLP 000052; Def. Mot., Ex. 14, "Disability Salary Records," BLP 000235.)*fn13

At the end of Plaintiff's third year at Bloomberg, Fedor and Kushinka believed Plaintiff's performance was improving but was still unsatisfactory. (Def. Mot., Ex. 12, Global Broadcast Self-Evaluation, March 20, 2003, BLP 000182-83.) In her self-review that year, Plaintiff states that she had "worked to improve [her] performance on transcripts," and that her goal was "to continue to improve in areas of [her] work through increased communication with [her] team leader and by expanding on [her] skill set by continuing to take [Bloomberg University] courses." (Id. at BLP 000183.) Defendant maintains that in May 2003, Plaintiff received six additional EECs. (Asman Aff. ¶ 4).*fn14

Bloomberg also had a culture of employees eating lunch at their desks rather than going out for lunch. (Cubbage Dep. 171-72.) Kushinka always ate at her desk, and all of the other employees except Plaintiff followed Kushinka's example. (Id. at 172-73). Plaintiff felt that she had a legal right to take a one-hour lunch break, so she would leave and go shopping or run errands during her lunch hour about three times a week. (Id. at 171-72.) Because of this lunch practice, Plaintiff believed her colleagues considered her a "slacker." (Id. at 173.) Plaintiff felt this was racially discriminatory:

I was the only African-American in the department working as a producer, and everyone else was going along. And because I was sort of going against the grain, exercising my right no less, then that's discrimination because I was treated disparagingly because I exercised that right. That's discrimination, because I'm an African-American and the other people are not African-Americans.

And they're going along, getting along, buying into the culture, and I'm saying, I don't buy into that. I have a right to take lunch. And it's discrimination because [Kushinka]'s using that as, Well, Jayne is a slacker, ...

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