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JORDAN v. OLSTEN CORP.

August 15, 2000

ANGELA JORDAN, PLAINTIFF,
V.
OLSTEN CORPORATION AND OLSTEN HEALTH SERVICES, DEFENDANT.



The opinion of the court was delivered by: Curtin, District Judge.

DECISION AND ORDER

INTRODUCTION

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 oral argument.

BACKGROUND

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 competitors.*fn1

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.
I [also] remember a time [in late 1995] that she got me a masseuse certificate [as a bonus for Jordan's superior 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 wrote:

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 tolerated.

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.

FACTS

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 to Jordan, 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 conversation.

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:

It is the policy of Olsten Corporation to ensure that the operations, activities and business affairs of Olsten and our clients are kept confidential. If during the course of their employment, employees acquire confidential or proprietary information about Olsten and its clients, such information is to be handled in strict confidence and not to be discussed with individuals outside of Olsten. Employees are also responsible for the internal security of such information. . . . .
. . . Violation of the agreement will be grounds for disciplinary action up to an including termination of employment.

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 policy:

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 involved] ...

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