On January 12, 1995, Ogden fired Cartagena, ostensibly for his refusal to change shifts and his declining work performance. Ogden has submitted evidence that Cartagena's position was not backfilled, and Cartagena has alleged otherwise but presented no evidence to that effect. On this point Cartagena has failed to raise a triable issue of fact; the significance of this failure, however, will be discussed below. Cartagena filed this suit on October 31, 1995, alleging that Ogden fired him on account of his national origin -- i.e., because he is Puerto Rican. Before the Court is the defendant's motion for summary judgment.
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).
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 taken the same action for a permissible reason." Fields, 115 F.3d at 119-20. The "substantial motivation" question in dual issue cases is the same as in single issue cases. See id. at 124 n.4.
One means by which a plaintiff may meet his or her burden in a single issue case is through the familiar burden-shifting process of Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), and McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this framework, a plaintiff first establishes a prima facie case by establishing (in a discriminatory discharge case such as this one) that (1) he or she is a member of a protected class, (2) he or she was qualified for his job, (3) he or she was discharged, either actually or constructively, and (4) the discharge took place under circumstances that give rise to an inference of discrimination (typically, by establishing that the position either remained open or was backfilled by someone from outside the protected class). See Stern v. Trustees of Columbia University, 131 F.3d 305, 311-12 (2d Cir. 1997); de la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 20 (2d Cir. 1996).
Establishment of a McDonnell-Douglas prima facie case serves one, and only one, purpose: to shift to the defendant the burden of producing evidence of a legitimate, nondiscriminatory reason for the termination. See Fisher, 114 F.3d 1332, 1336-37. Upon articulation of this legitimate reason, the inference of discrimination raised by the prima facie case is dispelled, and the plaintiff is left with the ultimate burden of proving that an impermissible reason was a motivating factor in the termination. See id. Although evidence showing that the proffered nondiscriminatory reason is pretextual may be probative to this ultimate burden, proof of pretext is neither necessary, see Renz v. Grey Advertising, 135 F.3d 217, , 1997 U.S. App. LEXIS 19993, at *12 n.3, 1997 WL 433675, at *4 n.3, (2d Cir. 1997); Fields, 115 F.3d at 121, nor sufficient to establish liability. See Fisher, 114 F.3d at 1339.
Alternatively, a plaintiff may meet his or her burden, not by the McDonnell-Douglas framework, but rather through direct evidence. "Direct evidence" of discrimination is something of a misnomer, in that any evidence short of a bald statement by the decisionmaker to the effect that they are firing an employee for an impermissible reason requires some inferential step to support a finding of discriminatory motive. See Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181-82 (2d Cir. 1992); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992). Rather, the term is used to distinguish direct evidence from the kind of evidence which makes out a McDonnell-Douglas prima facie case -- i.e., evidence from which an inference of discrimination arises only because "it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection," Burdine, 450 U.S. at 254, 101 S. Ct. at 1094, and which inference is therefore immediately dispelled once the employer has produced evidence of a nondiscriminatory reason. See St. Mary's Honor Society v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993); Fisher, 114 F.3d at 1337.
While not purporting to create an exhaustive list of what can constitute direct evidence, the Second Circuit in Ostrowski discussed in general terms what could and could not constitute direct evidence, in the context of what evidence would support a "mixed-motive" jury charge:
Purely statistical evidence would not warrant such a charge; nor would evidence merely of the plaintiff's qualification for and the availability of a given position; nor would "stray" remarks in the workplace by persons who are not involved in the pertinent decisionmaking process. . . . If, however, plaintiff's nonstatistical evidence is directly tied to the forbidden animus, for example policy documents or statements of a person involved in the decisionmaking process that reflect a discriminatory or retaliatory animus of the type complained of in the suit, that plaintiff is entitled to a burden-shifting instruction.