November 6 meeting between Markiewicz and Jordan. Item 26, Exh.
A, p. 157.
Markiewicz confronted Jordan about whether she had discussed
salary figures at the Gold Standard meeting of October 1996.
Item 26, Exh. A, p. 157. In addition, Markiewicz indicated to
Jordan that disclosing that kind of information was a violation
of company policy and a terminable offense. For her part, Jordan
denied having actual knowledge of anyone's salary and tried to
convince Markiewicz that she had only been "joking" about and
"guessing" at salary figures during the Gold Standard meeting.
Id. at 157-59. Despite hearing Jordan's side of the story,
Markiewicz remained "highly suspect" of how Jordan could have so
accurately "guessed" at the salary figures. Item 26, Exh. C, p.
After the confrontation between Markiewicz and Jordan had
dragged on for close to an hour, Russell asked Markiewicz to
step outside for a moment. At that time, both Markiewicz and
Russell excused themselves from the meeting and conferred
privately. According to Russell, Markiewicz appeared to be upset
by what she was hearing from Jordan. Item 26, Exh. D, p. 126.
Russell asked Markiewicz whether she intended to fire Jordan,
and Markiewicz responded affirmatively, saying that Jordan had
to be fired. In light of how upset Markiewicz appeared, Russell
offered to be the person who would tell Jordan that she was
being fired. Markiewicz agreed to this arrangement, and the two
returned to the meeting with Jordan and Orf. Item 26, Exh. D,
pp. 125-27. As soon as they returned to the meeting, Russell
informed Jordan that she was being fired effective immediately
and that she should leave the building. Id. at 12628.
Although Markiewicz did confer with Russell and instructed her
to tell Jordan that she was fired, Markiewicz maintains that she
was solely responsible for the decision to fire Jordan. Item 22,
¶ 4; see also Item 26, Exh. B, pp. 41-42. Indeed, Jordan
herself recognizes that only Markiewicz had "the power to
terminate me. . . ." Item 26, Exh. A, p. 193.
I. Standard of Law
The standard of law for a summary judgment motion in an action
brought under Title VII is well established. Rule 56(c) provides
that a motion for summary judgment shall be granted if the
pleadings and supplemental evidentiary materials "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."
Under the rule, the burden is on the moving party to inform the
court of the basis for its motion and to demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After
the moving party has carried its burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). "[T]he non-moving party must come forward
with `specific facts showing that there is a genuine issue for
trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P.
"Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348. When
perusing the record to determine whether a rational fact-finder
could find for the non-moving party, however, all reasonable
inferences must be drawn in favor of the non-moving party. See
Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d
Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d
The general principles underlying a motion for summary
judgment fully apply to discrimination actions. Although courts
should be cautious about granting
summary judgment in cases where motive, intent or state of mind
are at issue, see Dister v. Continental Group, Inc.,
859 F.2d 1108, 1114 (2d Cir. 1988), "the salutary purposes of summary
judgment — avoiding protracted, expensive and harassing trials —
apply no less to discrimination cases than to commercial or
other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998
(2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985) (ruling that summary judgment rule would be
rendered sterile if mere incantation of intent or state of mind
would act as a talisman to defeat an otherwise valid motion).
Consequently, once the moving party has met its burden, the
non-moving party in a discrimination action must come forward
with evidence upon which a rational factfinder could return a
verdict in her favor.
The McDonnell Douglas/Burdine framework is not intended to
be "a rigid ritual, but simply an orderly way to evaluate proof
when discrimination is claimed." Dister v. Continental Group,
Inc., 859 F.2d 1108, 1112 (2d Cir. 1988). Initially, plaintiff
must prove by a preponderance of the evidence a prima facie case
of discrimination. In the present case, Olsten concedes for the
purposes of argument that Jordan has successfully established a
prima facie claim of racial discrimination. See Item 20, p.
11. Therefore, the court may assume that Jordan has carried her
initial burden under McDonnell Douglas/Burdine.
Assuming that plaintiff has succeeded in establishing a prima
facie case, the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the plaintiffs
termination. Should the defendant carry this burden, the
presumption of discrimination created by the prima facie case
"drops out of the picture," St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and
the burden then remains with the plaintiff to prove by a
preponderance of the evidence that the defendant's proffered
reason was actually a pretext for discrimination. Burdine, 450
U.S. at 252-53, 101 S.Ct. 1089. At this stage, the plaintiff may
survive a defendant's motion for summary judgment if she
produces evidence demonstrating the falsity of the employer's
proffered reasons and carries her overall burden on the issue of
discriminatory intent. The Supreme Court has recently held that
a plaintiff may, in certain situations, carry this burden by
demonstrating the falsity of the proffered reasons and by
relying on the same evidence that was used to establish the
prima facie claim. See Reeves v. Sanderson Plumbing Products,
Inc., ___ U.S. ___, 120 S.Ct. 2097, 147 L.Ed.2d 105
While it is true that "`[e]mployers are rarely so cooperative
as to include a notation in the personnel file' that their
actions are motivated by factors expressly forbidden by law,"
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.
1994) (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460,
465 (2d Cir. 1989)), the plaintiff must still proffer evidence
that puts the defendant's intent "genuinely in issue," and
"summary judgment remains available to reject discrimination
claims in cases lacking genuine issues of material fact."
Chambers, 43 F.3d at 40.
II. Olsten's Proffered Reasons
Olsten maintains that it fired Jordan because she violated
Olsten's policy of confidentiality by discussing salary
information for administrative employees. Indeed, the record
demonstrates that Markiewicz believed that Jordan had
improperly learned of and then divulged the salary figures for
several administrative personnel at Olsten's Cheektowaga office.
Further, Markiewicz believed that such information was protected
by Olsten's policy of confidentiality and that, under company
policy, Jordan's breach of confidentiality warranted termination
of her employment. On a more practical level, Markiewicz closely
guarded information regarding the salaries of administrative
personnel because, to her experience, disclosure of such
information often "create[d] a lot of animosity" among
co-workers. See Item 26, Exh. C, p. 81.
In light of the foregoing, the court finds that defendant has
articulated a legitimate and non-discriminatory reason for
III. Jordan's Showing of Pretext
Jordan urges three principal arguments in an effort to show
that Olsten's proffered reason for firing her is merely a
pretext for the racially discriminatory animus that played a
role in the decision to fire her.
A. Evidence of Discriminatory Animus
Jordan insists that pretext can reasonably be inferred because
the record reveals that Mary Martha Russell was biased against
and hostile towards Jordan as an African-American. Item 27, pp.
8-9. Here, Jordan has testified that Russell twice addressed a
scheduling problem with Jordan first by blindly accepting the
word of a white care provider and then by berating and demeaning
Jordan in front of her co-workers. Jordan asserts that Russell
never dealt with the scheduling problems of white coordinators
in a similar fashion. Item 26, Exh. A, pp. 199-201. In addition,
Jordan relates an incident in which Russell, while mediating a
dispute between Jordan and another Coordinator, implied that
Jordan was successful as a care Coordinator only because Jordan
— like many of Olsten's care providers — was African-American
and, as a result, had a special connection with many Olsten care
providers. Id. at 199, 205-06. Taken together, Jordan argues
that these incidents give rise to a reasonable inference that
Russell was racially prejudiced against her.
The court need not reach the issue of whether Jordan's
testimony creates an inference that Russell bore discriminatory
animus towards Jordan because Olsten has submitted unrebutted
evidence that it was Markiewicz, and Markiewicz alone, who made
the decision to fire Jordan. In an effort to rebut this
conclusion, Jordan has testified as follows:
Q: . . . Would you have any explanation then for
why [Markiewicz] would suddenly terminate you
because you were black if you had such a good
working relationship [in the past]?
A: I don't think it was all Joyce's decision. Mary
Martha was in the room at the time. Mary Martha was
making the initiative, is the one who basically
carried the conversation: Joyce was there but she
really didn't talk that much. She signed [the
termination letter] but it was basically Mary
Martha who did the talking, not Joyce.
Item 26, Exh. A, p. 210. Here, Jordan merely speculates that
Russell played a role in Markiewicz's decision to fire her. The
evidence, on the other hand, demonstrates that only Markiewicz
had the authority to fire Jordan and that Markiewicz made this
difficult decision on her own.
While Russell did confer with Markiewicz about how Markiewicz
wished to proceed at the November 6 meeting, the record is
devoid of evidence that Russell exerted any influence over
Markiewicz's decision-making process. Rather, Markiewicz has
averred that she made the decision to fire Jordan without
seeking out the opinion of other Olsten supervisors. In
addition, Russell has testified that:
Q: So if [Markiewicz] didn't have the fortitude to
do something you had to push her?
A: No, I didn't push her.
Q: Well she needed your support or enticement to
get her to do something?
A: It was her decision to make. . . .