The opinion of the court was delivered by: Curtin, District Judge.
In support of its motion, Olsten has submitted affidavits with
supporting exhibits, Items 19 and 22; a statement of material
facts, Item 21; and a memorandum of law, Item 20. In response,
Jordan and her attorney filed affidavits with various supporting
exhibits, Items 25 and 26; a statement of material facts, Item
28; and a memorandum of law, Item 27. Finally, Olsten has
replied by submitting an affidavit from a former Olsten
supervisor, Item 32; an attorney affidavit, Item 31; and a reply
memorandum of law, Item 30. On July 14, 2000, the court heard
Olsten is a provider of home-based health care services.
Specifically, Olsten provides in-home medical care through a
variety of professionals and para-professionals, such as:
personal care aides ("PCA"), home health aides ("HHA"), licensed
practical nurses ("LPN"), registered nurses ("RN"), physical
therapists, occupational therapists, speech therapists,
dieticians, and social workers. See Item 19, Exh. I, p. 10;
and Item 22, ¶ 3.
In November 1994, Olsten hired Jordan as a "staff aide." As a
staff aide, Jordan filled in as both a PCA or an HHA whenever
Olsten's regularly scheduled workers were unable to report to a
client's home. Item 26, Exh. A, pp. 74-75. After working as a
staff aide for ten months, Olsten promoted Jordan in September
1995 to the position of a temporary client care coordinator (or
"Coordinator"). See Item 19, Exh. H, pp. 77-81, 209-210. Then,
in December 1995, Joyce Markiewicz, Olsten's local Branch
Director, promoted Jordan again by making her position
permanent. Id at 80-81.
As a client care coordinator, Jordan's primary responsibility
involved scheduling appropriate care providers to cover the
shifts required by Olsten's many clients. Id. In addition to
scheduling, Olsten's Coordinators were responsible for moving
quickly on referrals so that Olsten might secure work over its
Jordan states that she excelled as a client care coordinator
from the very beginning. Jordan has testified that her
supervisors were very pleased with her work as a temporary
Coordinator because she had "brought in a lot of new
cases. . . ." Item 26, Exh. A, p. 93. Similarly, Jordan avers
that Markiewicz, the Branch Director, continually praised
Jordan's efforts throughout the latter months of 1995:
[Markiewicz indicated to me t]hat I brought [Olsten]
a lot of business that the other coordinators didn't
pick up, a certain amount, that I was bringing in a
lot of new cases for them. A lot more money was
coming into the company. I remember a time that
[Markiewicz] came over and hugged and kissed me
because of my job performance.
Item 26, Exh. A, pp. 102-103.
For her part, Markiewicz partly echoes Jordan and states that
while Jordan served as a temporary Coordinator from September to
December 1995, she "fulfilled [the job] extremely well." Item
26, Exh. B, p. 40.
However, on January 15, 1996, Markiewicz called a meeting of
Olsten's four Coordinators — Jordan, Ada Calderone, Marilyn
Holtyn and Tracy Loukatis — in order to address certain problems
that the Coordinators were having as individuals and as a team.
Item 26, Exh. C, pp. 24-25, 30. After the meeting, Markiewicz
followed up with each Coordinator by sending an individualized
memorandum. In these memoranda, Markiewicz detailed her concerns
with each Coordinator's work. With respect to Jordan, Markiewicz
As you are aware, Angela, multiple clients have
complained that they feel you have not spoken
truthfully regarding missed shifts and problematic
caregivers. When each event is analyzed, the reality
is a lack of follow through and/or
miscommunication. . . . .
If you make a mistake, call the client,
caregiver, or supervisor. Correct the error,
apologize for the inconvenience, document the
outcome and move forward. Trying to "fix" something
instead of admitting the mistake can often be
perceived as dishonest. . . . .
From this day forward, I expect to see
consistent improvement in your documentation,
better written communication to your fellow
coordinators, and better use of the Olsten Computer
System. . . . .
During the next thirty days and ongoing
thereafter, I will expect continued improvement in
your job performance, consistent and quality care
to our clients, and greater accountability to your
coordinating job responsibilities. Please be
advised that missed shifts will no longer be
Item 26, Exh. G. Jordan insists that Markiewicz directed this
meeting and the related memorandum to all of the Coordinators,
not just her. See Item 26, Exh. A, pp. 125-26, 137-38.
Nevertheless, the record unambiguously establishes that
Markiewicz called this meeting and specifically drafted a
memorandum to Jordan because she had concerns about the way in
which Jordan was carrying out her duties as a Coordinator.
In and around mid-1996, Olsten initiated a nationwide
restructuring of its employee hierarchy, which Olsten dubbed
"the Gold Standard." By implementing the Gold Standard, Olsten
sought to standardize the organizational structure of its many
offices. In this way, all Olsten employees would have
standardized job titles and descriptions and would also have
uniform responsibilities. See Item 26, Exh. D, p. 12. As part
of this new organizational scheme, Olsten required its
administrative employees to complete a set of self-study modules
that were designed to teach the employees about this new
organizational model. Item 19, Exh. I, pp. 49-50.
Thus, in October 1996, Olsten's four client care coordinators
— Jordan, Calderone, Holtyn, and Loukatis — stayed after work
one day in order to complete their modules together. Item 26,
Exh. A, p. 152; Item 19, Exh. H, p. 152. During the course of
that meeting, the conversation among the Coordinators turned
towards salaries and bonuses for Olsten's administrative
personnel at the Cheektowaga, New York office.*fn2 According
Loukatis initiated the conversation by asking Calderone about a
bonus that Calderone had received while Loukatis was out on
maternity leave. Item 26, Exh. A, p. 153. At that point, Jordan
began to discuss how much several of Olsten's administrative
personnel were earning:
[T]hen I do remember saying, well if I make, whatever
the amount was. I said, well, probably Scott [Orf]
probably makes like 15 or 16 [thousand], you know
Joyce [Markiewicz] and Mary Martha [Russell], they
must make 20 or 25 [thousand] or whatever and it was,
like I said, it was a joking thing. We were laughing
and that was that, we moved on to another
Item 26, Exh. A, p. 154; see also Item 19, Exh. M, p. 49
(deposition of Calderone). Even though she gave specific dollar
figures, Jordan insists that she was only "guessing" at and
"joking" about these people's salaries. Moreover, Jordan denies
ever seeing any documents that could have given her information
regarding the salaries of Olsten's various administrative
personnel. Id. at 155-57.
Nothing further came of this conversation until November 6,
1996. At that time, Jordan had complained to Markiewicz
regarding Tracy Loukatis and Nancy DeFranco, who were Olsten's
on-call Coordinators.*fn3 Jordan told Markiewicz that
Loukatis and DeFranco were shirking their own duties by calling
Jordan on the weekends and in the evenings to confer about her
clients. Item 26, Exh. C, p. 71. Markiewicz agreed with Jordan
that Olsten's on-call Coordinators should not habitually call
off-duty Coordinators at home. See id. Thus, Markiewicz sought
Loukatis out and confronted her with Jordan's complaints. Item
26, Exh. C, pp. 72-74. According to Markiewicz, Jordan's
complaints upset Loukatis, who adamantly denied Jordan's
complaints and insisted that it was Jordan who constantly
contacted the on-call Coordinators, not the other way around.
Item 26, Exh. C, p. 75.
After Loukatis had told Markiewicz her side of the story, she
went on to tell Markiewicz of how Jordan had disclosed specific
salary figures for several of Olsten's administrative employees
at the October 1996 Gold Standard meeting. Id. at 73-76. After
listening to Loukatis's allegations, Markiewicz was suspicious
of how Jordan had been able to precisely peg what Mary Martha
Russell earned as the Director of Clinical Management, as well
as what Olsten's four Managers of Clinical Practice earned.
Id. at 78-79.*fn4 Moreover, Markiewicz was "taken back
[sic]" and "disturbed" by Loukatis's story, since Olsten
considered salary information for administrative personnel to be
highly confidential. Id. at 76-80; see also Item 31, Exh. O.
Loukatis's recollections were especially troubling to Markiewicz
"[b]ecause the information" that Jordan allegedly disclosed at
the October 1996 "was accurate and . . . kept . . . [under l]ock
and key in my office." Item 26, Exh. C, p. 76.
Markiewicz concluded that if Loukatis's allegations were true,
then Jordan had violated Olsten's policy of keeping proprietary
information confidential. On this count, Markiewicz was looking
to Olsten's Employee Handbook, which provides:
. . . Violation of the agreement will be grounds for
disciplinary action up to an including termination of
Item 19, Exh. E; see also id. Exh. F, ¶ 3 (Jordan's Employment
Agreement). Further, Markiewicz was aware of the fact that the
Olsten employee handbook expressly provided that salary
information was deemed confidential. Item 31, Exh. 0.
After considering the matter briefly, Markiewicz came to the
conclusion that Jordan's statements regarding administrative
salaries constituted a violation of Olsten's confidentiality
Q: . . . [I am referring your attention to the]
confidentiality and non-competition that you
believe was breached by this discussion?
A: Yes, I believe that [Jordan's statements