(1) that she was originally terminated on October 17, 1994 based on an alleged affair she was having with a male employee, James Rutkowski, who was not punished for being the subject of the same rumors; and (2) on November 16, 1994, she was terminated again for altering time cards while a male employee, Carlos Morales, who did similar acts, was not disciplined.
A. The summary judgment standard in general
A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby., 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040 (2d Cir. 1995).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Services, Ltd, Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
B. Summary judgment with regard to discrimination cases
In the Second Circuit, summary judgment has been found to be inappropriate in numerous discrimination cases, compare Cronin v. Aetna Life Ins. Co., 46 F.3d 196 (2d Cir. 1995) (finding material issues of fact precluded summary judgment); Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994) (same); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994) (same), with Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994) (finding summary judgment appropriate); Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994) (same); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985) (plaintiff must do more than proffer the bare allegation that intent or state of mind are implicated); Cianfrano v. Babbitt, 851 F. Supp. 41 (N.D.N.Y. 1994) (same). In Meiri, the Second Circuit held that a plaintiff must do more than proffer the bare allegation that intent or state of mind are implicated. Accordingly, the nonmovant must set forth "concrete" evidence substantiating his or her claim of falsity and discriminatory intent so that if believed, a jury would return a favorable verdict. If the plaintiff fails to point to such specific proof, the court should find no "genuine" issues of material fact to be in dispute under Rule 56, and should, therefore, grant summary judgment for the employer. The Second Circuit has also held and pointed out that summary judgment may be appropriate in discrimination cases where genuine issues of material fact are absent, even though a precaution must be exercised where intent is genuinely at issue. See TRM Copy Centers, 43 F.3d at 40; Gallo, 22 F.3d at 1224.
It is within this framework that the Court addresses the grounds for the present motion for summary judgment.
C. The defendants' motion
In the absence of substantial direct evidence, allegations of employment discrimination are governed by the three step burden shifting test as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). As the Second Circuit recently restated the case in Quaratino :
First, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position has remained open and was ultimately filled by non-protected employee. See McDonnell Douglas, 411 U.S. at 802. . ., Burdine, 450 U.S. at 253 . . . . Alternatively, a plaintiff may satisfy the fourth requirement to make out a prima facie case by showing that the discharge occurred in circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, n.13 . . . ; Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 104 (2d Cir. 1989).
Second, assuming the plaintiff demonstrates a prima facie case, the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason for discharging the employee. See Gallo, 22 F.3d at 1226. Third, if the defendant satisfies this burden of production, the plaintiff has the ultimate burden to prove that the employer's reason was merely a pretext for [sex] discrimination. An employer's reason for termination cannot be proven to be a pretext for discrimination unless it is shown to be false and that discrimination was the real reason. Hicks, 509 U.S. at , 113 S. Ct. at 2752.