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SANYER v. KIMBERLY QUALITY CARE

July 9, 1997

ESPERANZA SANYER, Plaintiff, against KIMBERLY QUALITY CARE, Defendant.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Plaintiff Esperanza Sanyer ("Sanyer"), a Spanish-speaking native of Ecuador, alleges that her former employer, defendant Quality Care-USA d/b/a Olsten Kimberly Quality Care (sued herein as Kimberly Quality Care) ("Kimberly"), discriminated against her based upon her national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pending before the Court is Kimberly's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Because this court concludes that there is no genuine issue of material fact to be tried in this case and that Kimberly is entitled to judgment as a matter of law, Kimberly's motion is granted and the complaint dismissed.

 BACKGROUND

 The material facts of this case are essentially undisputed. In December of 1990, Sanyer enrolled in a training course offered by Kimberly in order to become a home healthcare worker. Sanyer indicated at her deposition that she was informed at the time she filled out the application that she would be required to have a rubella vaccine. After she completed the course, she was advised by Kimberly employees that they were having trouble verifying her references and that documentation regarding the rubella vaccine was missing from her medical records. There was consequently some delay before Sanyer was sent on assignments, although other members of Sanyer's class were apparently sent on assignments immediately after completing the course.

 On August 31, 1991 and September 1, 1991, Sanyer was sent on a home healthcare assignment to the home of Lillian Davis in Far Rockaway, New York. Davis was terminally ill and required feeding through a tube. On both days, Sanyer was scheduled to arrive at 8 AM and leave at 8 PM. However, Sanyer admitted at her deposition that (1) on August 31, she arrived at 12:30 PM; (2) on September 1, she left between 6:00 PM and 6:30 PM; and (3) she submitted a time sheet to Kimberly that indicated that she worked from 8 AM to 8 PM on both days. At her deposition, Sanyer, while admitting that the time sheets were inaccurate, contended that "everybody makes mistakes. Everybody makes an error." Exhibit D to Defendant's Notice of Motion at 48.

 On September 12, 1991, Kimberly terminated Sanyer's employment, ostensibly based upon her conduct at Davis's house. The Staff Disciplinary Form that was filled out at the time identified her late arrival on August 31, her failure to notify the office with regard to her absence from Davis's home, her submission of incorrect time sheets, and her failure to obtain authorization to leave early on September 1 as the reasons for her termination from Kimberly.

 DISCUSSION

 The standard for reviewing a motion for summary judgment is well-established. A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Chambers v. TRM Copy Corp., 43 F.3d 29, 36 (2d Cir. 1994). The burden is upon the moving party to show that no genuine issue of material fact exists, and all ambiguities must be resolved, and all inferences drawn, in favor of the nonmoving party. See Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir. 1994). Further, pro se litigants confronted with motions for summary judgment must be accorded special protection. See Ruotolo v. Internal Revenue Serv., 28 F.3d 6, 8 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In a case presenting a claim of employment discrimination, the court must be especially cautious about granting summary judgment, since the employer's intent is at issue and there is rarely documentary evidence that would directly support a claim of intentional discrimination. 22 F.3d 1219 at 1224; see also Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).

 In evaluating Kimberly's motion, the Court uses the three-step burden shifting analysis first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-508, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Initially, the plaintiff has the burden of establishing a prima facie case of unlawful discrimination. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Chertkova, 92 F.3d at 87. The prima facie case may rest upon evidence that the plaintiff belongs to a protected group, that she was qualified to hold the subject position, that she was terminated from the position, and that the termination occurred under circumstances giving rise to an inference of discrimination. See Gallo, 22 F.3d at 1224. Although plaintiff's burden in this regard has been described as "de minimis," Goenaga, 51 F.3d at 18, "the plaintiff cannot meet this burden through reliance on unsupported assertions." Id.

 Once the plaintiff has shown that she has a prima facie case, a presumption of unlawful discrimination arises and the burden of production then shifts to the employer, which must articulate a legitimate reason for the employment decision at issue. Chertkova, 92 F.3d at 87. If the employer satisfies this burden, the plaintiff must then prove by a preponderance of the evidence that the impermissible factor, such as national origin, substantially motivated the adverse employment decision. Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116 at 119 (2d Cir. 1997).

 The Court determines, however, that Kimberly has articulated legitimate non-discriminatory reasons for its treatment of Sanyer while she was employed by Kimberly. Kimberly relies largely upon the transcript of Sanyer's deposition in support of its motion. With regard to Sanyer's claim regarding the manner in which cases were assigned, she admitted at her deposition that (1) she had been informed at the time she applied for the training course that she would need to submit proof that she had been vaccinated for rubella, and (2) after she completed the course, she was told by Kimberly employees that her medical records were not complete and that they were also having trouble contacting her references. Sanyer's complaints about the cases to which she was assigned center upon the neighborhoods in which her clients lived and the difficulty she experienced in locating their residences. There is evidence in the record before this Court that fully one-half of the trainees in Sanyer's class were ...


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