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United States District Court, S.D. New York

August 5, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Hattie Fordham, appearing pro se, brings this action against The Salvation Army ("TSA"). Fordham alleges that TSA unlawfully terminated her employment based upon her national origin in violation of Title VII of the Civil Rights Act of 1964.*fn1 TSA now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, TSA's motion is granted.


  Fordham was born in South Carolina.*fn2 On or about October 4, 1999, Fordham applied for a job at TSA.*fn3 Gloria Saunders, TSA employee in charge of hiring and firing, received Fordham's application.*fn4 After discussing the application with her supervisor, Frankie Hailey, Saunders decided to hire Fordham as a floor clerk in one of TSA's thrift stores.*fn5

  Fordham began her employment at TSA's 536 West 46th Street store in Manhattan in October 1999, at which time she was given the Rules of Conduct for TSA employees (the "Rules").*fn6 The Rules prohibit discourtesy to other TSA employees, repeated tardiness, and the use of obscene or threatening language.*fn7 In December 1999, Fordham was transferred to TSA's 208 Eighth Avenue store in Manhattan.*fn8

  While working at that location, Fordham received three warning notices from Faizool Khan, her supervisor.*fn9 Khan issued the first warning notice on March 25, 2000.*fn10 This notice states that Fordham and other employees were "yelling at each [other] in the store," after being "warned on several occasion[s]."*fn11 Khan issued the second warning notice on May 20, 2000, which states that Fordham was "late three times in one week" despite being "warned before about lateness."*fn12 Khan issued the third warning on June 17, 2000, which states that Fordham was engaged in a "loud argument" and used "obscene language against [a] fellow worker."*fn13 Fordham signed all three of the warning notices.*fn14 On June 19, 2000, Saunders terminated Fordham's employment.*fn15 Before doing so, however, Saunders consulted with Hailey, who approved her decision.*fn16

  Fordham alleges that Saunders terminated her employment because Fordham was born in the United States.*fn17 In support of this proposition, Fordham avers that Saunders was born in the Caribbean.*fn18 Saunders, however, states that she was born in Charleston, South Carolina.*fn19 Saunders further asserts that although she moved to Jamaica when she was "quite young," she returned to the United States in 1965 and has resided here continuously ever since.*fn20

  In support of its motion for summary judgment, TSA offers a list of twenty people hired between October 2000 and April 2003.*fn21 Of these people, sixteen have identify their national origin as the United States, and only one is of Jamaican origin.*fn22


  A. Summary Judgment Standard

  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn23 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn24 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn25

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn26 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn27 and it must "come forward with `specific facts showing that there is a genuine issue for trial."*fn28 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn29

  B. Summary Judgment in the Context of Title VII

  When seeking relief for discrimination under Title VII, a plaintiff has the initial burden of making out a prima facie case of discrimination.*fn30 A plaintiff may do so by showing: "(1) membership in a protected class; (2) satisfactory job performance; (3) termination from employment or other adverse employment action; and (4) the ultimate filling of the position with an individual who is not a member of the protected class."*fn31 "If the plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination."*fn32 The defendant need not actually prove that such a reason motivated its actions.*fn33 If the defendant meets its burden, "the presumption drops out of the analysis and the defendant will be entitled to summary judgment."*fn34


  Fordham has failed to meet her burden of establishing a prima facie case of discrimination.*fn35 She has put forth no evidence demonstrating that her job performance was satisfactory, or that her position was subsequently filled by an individual who is not a member of the protected class. The only evidence that could support Fordham's showing of a prima facie case is the assertion that Saunders was Jamaican-born and that Saunders' discrimination against employees of American origin resulted in the termination of Fordham's employment.*fn36

  It is easy to see why this argument fails. First, although Saunders moved with her family to Jamaica as a child, Saunders was born in South Carolina, the very state in which Fordham was born, and has resided in the United States since 1965.*fn37 Second, TSA's hiring history clearly shows that TSA does not have a preference for employing Caribbean-born individuals.*fn38

  Even if Fordham could establish the requisite prima facie case, TSA has set forth ample evidence establishing the legitimacy of its decision to terminate Fordham's employment. When Fordham was hired, she was given a copy of the Rules.*fn39 During her employment, Fordham was issued warning notices on three separate occasions advising her of her violations of the Rules.*fn40 After the third notice, TSA terminated Fordham's employment.*fn41 Apparently realizing that her allegations would fail because Saunders was born in the United States, Fordham now argues that her signature on the warning notices was forged.*fn42 But this bald, unsubstantiated allegation is in direct contradiction to her deposition testimony, in which she admitted under oath to signing all three warning notices.*fn43 "`It is well settled . . . that a party's affidavit which contradicts [one's] own prior deposition testimony should be disregarded on a motion for summary judgment.'"*fn44 Similarly, "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony."*fn45 Accordingly, Fordham's contention that her signature was forged is insufficient to defeat summary judgment. IV. CONCLUSION

  For the foregoing reasons, TSA's motion for summary judgment is granted. The Clerk of the Court is directed to close this motion [#24 on the docket sheet] and this case.


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