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CARTAGENA v. OGDEN SERVS. CORP.

March 11, 1998

JOSE CARTAGENA, Plaintiff, against OGDEN SERVICES CORP., Defendant.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 BACKGROUND

 The following are the facts which, based on the supporting documentation presented, could be found by a reasonable jury. Plaintiff Cartagena began working for Ogden in 1986. Ogden hired Cartagena as a console operator in the Management Information Services (MIS) department; his duties involved technical support and operation of the mainframe computer systems used by the MIS department to perform various tasks, such as collection and distribution of financial data, printing of checks, and handling of various wire transfer activities for other divisions and corporations within Ogden.

 Edward Lehigh supervised Cartagena for most of his employment period. Lehigh originally hired Cartagena and was originally pleased with Cartagena's performance. Lehigh gave Cartagena at least two pay raises during Cartagena's tenure with Ogden and promoted him to console shift supervisor in 1989. Lehigh was pleased with Cartagena's performance until problems began in late 1993.

 In or around late 1993, Cartagena began to have problems at home, the details of which need not be recounted here. Suffice it to say that, even according to Cartagena, his personal problems began to distract him at work, to the point that by mid-1994 on occasion Cartagena would incorrectly run computer jobs, creating the need for reruns; these errors occurred two to three times a week. About once a week, one of these reruns carried over into the next shift. Lehigh noted a decline in performance, although there is a dispute over whether Cartagena was responsible for a number of the errors cited by Lehigh.

 Also in early 1994, Lehigh asked the plaintiff to move from the first shift (8:00 a.m. - 4:00 p.m.) to the second (4:00 p.m. - 12:00 midnight). Apparently, different shifts were responsible for different types of activities, and according to Lehigh, this move was requested in order to allow another employee, James Theodakis, to learn the jobs that were performed on the first shift. According to the defendant, the transfer was to be for only six months or so, until Theodakis learned the first shift jobs. Cartagena had been told upon his hiring that he might be required to change shifts and had done so at other points in his career with Ogden. Cartagena, however, resisted this shift change on the grounds that his wife's schedule made it difficult for him to work at other times and also that his neighborhood would be an unsafe place in which to walk to and from transportation that late at night. Lehigh agreed to postpone the shift change on two or three occasions, but by June 1994 Lehigh told Cartagena on at least one, possibly two, occasions that his unwillingness to change shifts was placing his job in jeopardy. From August 1994 until his termination in January 1995, however, no further demands for shift changes were made upon the plaintiff.

 In June 1994, Lehigh came into the computer room and found that a particular job had not been run correctly; according to Cartagena, the failure had been due to a previous shift's error. Turning to Cartagena, Lehigh allegedly said, "You fucking Puerto Rican can't do the job right." Cartagena asserts that this comment, or one very similar, was repeated in a similar occasion in August 1994. In addition, in November 1994, following a run error which Cartagena claimed was due to incomplete input from outside the department, Lehigh allegedly said "You fucking Puerto Rican can go get them." Lehigh denies ever making these statements. *fn1"

 DISCUSSION

 Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of identifying the evidence that it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether summary judgment is appropriate, the Court resolves all ambiguities and draws all reasonable inferences against the moving party. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The Second Circuit has also cautioned that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Id. at 110 (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)).

 In order to prevail, a Title VII plaintiff claiming discriminatory discharge must prove that he or she was the victim of intentional discrimination -- i.e., that his or her employer discharged the plaintiff "because of [the plaintiff's] race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). *fn2" It is undisputed that Ogden fired Cartagena. What is in dispute, as it is in most Title VII cases, is whether Cartagena was fired because of an impermissible factor -- here, his national origin.

 Title VII cases can be divided into two types of cases, sometimes called "pretext" and "mixed-motive" cases but more recently called by the Second Circuit "single issue motivation" and "dual issue motivation" cases. See Fields v. New York State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 119-20 (2d Cir. 1997). As explained in Fields, in single issue cases, "the fact-finder must decide only the single issue of whether an impermissible reason motivated the adverse action," while in dual issue cases "the fact finder must decide both the issue of whether the plaintiff has proved that an impermissible reason motivated the adverse action and the additional issue of whether the defendant has proved that it would have ...


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