Opinion
Civil Action No. 00-2453-CM
July 2, 2002
MEMORANDUM AND ORDER
Plaintiff A. Jane Plotke filed suit against her employer, the Secretary of the Army, alleging that she was discriminated against on the basis of her gender in violation of 42 U.S.C. § 2000e-16. In her complaint, plaintiff claims defendant unlawfully terminated her from her employment as a historian because of her gender. Although plaintiff's complaint also contains a claim of unlawful retaliation, plaintiff has voluntarily dismissed this claim in her Response to Defendant's Motion for Summary Judgment. Pending before the court is defendant Thomas E. White's motion for summary judgment. (Doc. 44). Also pending is defendant's motion for leave to substitute an affidavit bearing the original signature of Lurita Williams (Doc. 46). As set forth below, defendant's motions are granted.
All facts discussed in this section and elsewhere in the opinion are either uncontroverted in accordance with District of Kansas Rule 56.1, or are viewed in the light most favorable to plaintiff as the non-moving party pursuant to the applicable summary judgment standard.
Plaintiff A. Jane Plotke was a historian at the U.S. Army Combined Arms Center (CAC), Army Knowledge Network — Combat Training Center — Warrior Information Network (CTC-WIN) located at Ft. Leavenworth, Kansas. Plaintiff was appointed on July 10, 1994 by her supervisor, Dr. Rodler Morris, to a Career-Conditional appointment as a historian in the CAC History Research Branch at Ft. Leavenworth. A condition of this appointment was that plaintiff was required to successfully complete a one-year probationary period pursuant to 5 C.F.R. § 315.801, et seq. Plaintiff was terminated from service on July 7, 1995, during the probationary period.
• Motion for Leave
Defendant has moved for leave to substitute an affidavit bearing the original signature of Lurita Williams (Doc. 46). Because plaintiff has filed no opposition to defendant's motion for leave, the court grants defendant's motion for leave as unopposed pursuant to District of Kansas Rule 7.4.
III. Motion for Summary Judgment
Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1). The court turns to defendant's argument that certain of plaintiff's claims must be dismissed due to plaintiff's failure to exhaust administrative remedies.
B. Gender Discrimination Analysis
Plaintiff argues that she was discriminated against on the basis of gender because she was terminated from her position and experienced other adverse treatment during her employment. A plaintiff alleging unlawful gender discrimination in her employment must show, either directly or indirectly, that the employer's decision was motivated by intentional gender discrimination. Chatfield v. Shilling Constr. Co., 232 F.3d 900, 2000 WL 1531846, at *2 (10th Cir. 2000). "Direct evidence is that which does not require an inference to prove discrimination, such as oral or written statements by an employer showing a discriminatory motive." Id. Plaintiff has not identified any document or statement directly linking defendant's decision to terminate her employment to her gender. Instead, plaintiff alleges that several incidents occurred during the course of her employment which demonstrate a discriminatory animus against her on the part of her employer. Accordingly, the court analyzes plaintiff's claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under McDonnell Douglas, to survive summary judgment, plaintiff must raise a genuine issue of material fact on each element of her prima facie case of discrimination. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). The burden next shifts to defendant to articulate legitimate, nondiscriminatory reasons for the challenged employment action. If defendant makes such a showing, the burden reverts to plaintiff to set forth facts that raise a genuine issue of material fact that defendant's proffered reasons are pretextual and thus unworthy of belief. Id. If plaintiff can proffer such evidence, the motion for summary judgment should be denied. Id.
Prima Facie Case
To establish a prima facie case of gender discrimination under Title VII, plaintiff must present evidence to show that she (1) belongs to a protected class; (2) was qualified for her position; (3) was discharged; and (4) that the position was not eliminated after the plaintiff's discharge. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000). To establish the fourth element, the plaintiff need not prove that an individual outside the plaintiff's protected class filled the position previously held by the plaintiff. Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999).
Regarding plaintiff's claim that her discharge was discriminatory, the court finds that plaintiff has established the first, second, and third elements of a prima facie case of gender discrimination. Plaintiff has set forth evidence to show she is a member of a protected class, was qualified for her position, and was discharged. However, defendant claims plaintiff cannot establish the fourth element of a prima facie case because she cannot show that her job was not eliminated after her discharge. Specifically, defendant attaches the declarations of Lurita Williams, a Civilian Personnel Officer, and Dr. Morris, each asserting that plaintiff's position was eliminated after she was terminated from her employment. Plaintiff counters by pointing out that Kendrick does not require plaintiff to show that her position was filled by someone outside the plaintiff's protected class.
While plaintiff's statement of the law is true, it ignores Kendrick's holding that the fourth element of a prima facie case requires that the position remained open and was filled by someone following the plaintiff's discharge, regardless of whether the replacement was outside the protected class. Because the uncontroverted evidence before the court indicates that plaintiff's position was in fact eliminated after her discharge, the court finds that plaintiff cannot state a prima facie case of gender discrimination based on her termination under Title VII. Accordingly, the court must grant defendant's motion for summary judgment.
• Legitimate, Nondiscriminatory Reason
Even if plaintiff could state a prima facie case of gender discrimination, the court finds defendant has proffered legitimate, nondiscriminatory reasons for discharging plaintiff. Defendant has attached a memorandum and declarations from Dr. Morris which proffer the following as legitimate nondiscriminatory reasons for plaintiff's discharge. Dr. Morris's affidavits state that plaintiff was terminated based upon unsatisfactory conduct including her failure to follow guidance issued by superiors, failure to follow established chains-of-command, a breakdown in her attitude toward customer service, and her fostering a climate of dissension and distrust within the Army Knowledge Network Directorate. Dr. Morris's affidavits describe specific incidents which caused him to call into question plaintiff's integrity and trustworthiness. In one specific incident, for example, plaintiff made arrangements to attend conferences and take leave for which she had not received authorization. Further, Dr. Morris's affidavits indicated that efforts to engage plaintiff in counseling regarding these incidents revealed her reticence to correct the problems at issue. Moreover, defendant points out that the federal regulation governing plaintiff's appointment during her probationary period states that "separation during the probationary period may be based on deficiencies in job performance, lack of aptitude for the job or cooperativeness, or undesirable suitability characteristics, among other reasons. . . ." 5 C.F.R. § 315.806.
• Pretext
Having found that defendant has presented legitimate, nondiscriminatory reasons for terminating plaintiff's employment, the court next turns to the issue of pretext. First, the court examines whether plaintiff has presented sufficient evidence to create a genuine issue of material fact regarding whether defendant's proffered reasons for discharging plaintiff are pretextual. Second, the court will consider whether the events plaintiff claims demonstrate a discriminatory animus against plaintiff are sufficient to show pretext.
Timing of Counseling
Plaintiff puts forth evidence to show that the counseling sessions following the incident regarding travel authorization occurred after Dr. Morris made the decision to fire plaintiff. Plaintiff thus argues that defendant's proffered reasons for terminating plaintiff from employment are pretextual. Defendant counters by attaching testimony to indicate that the decision to fire plaintiff occurred after the counseling, and that Dr. Morris stated he would not terminate plaintiff if she proved receptive to counseling. With regard to plaintiff's qualifications and job performance, the court will not substitute its business judgment for that of the employer. Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988). The court recognizes it must evaluate employers' decisions based upon the information available to them at the time the decision was made. Watts v. City of Norman, 270 F.3d 1288, 1295 (10th Cir. 2001). The court finds that plaintiff has not raised a genuine issue of material fact demonstrating pretext, because defendant's proffered reasons for terminating plaintiff do not depend on whether the decision to fire plaintiff was made before or after counseling. Furthermore, as defendant points out, defendant has put forth evidence showing that the travel authorization incident was only one of several incidents that plaintiff's supervisors considered in their decision to terminate plaintiff.
Alleged Fabrication of Memoranda
Plaintiff also attempts to show pretext by attaching testimony of Chief of Staff Col. William C. Ohl, who was the approving official in plaintiff's termination process, indicating that Col. Ohl was not aware that there had been any documentation or counseling memoranda to support the termination decision. Plaintiff argues that this supports a conclusion that the memoranda attached by defendants were fabricated. However, defendant refutes this evidence by attaching an affidavit indicating that Dr. Lackey submitted a memorandum to Dr. Morris on June 22, 1995 after the counseling session, and that this was a document of which Col. Ohl would not have had knowledge because it was an internal communication. The court finds that plaintiff has not shown the memorandum to be a fabrication because plaintiff has not shown that Col. Ohl would have had personal knowledge of all memoranda regarding plaintiff's termination, including this internal memorandum between Dr. Morris and Dr. Lackey. Accordingly, the court finds that plaintiff has not established a genuine issue of material fact on this issue.
Additional Incidents
Next, the court examines several incidents which plaintiff claims provide evidence that discriminatory animus motivated defendant's decision to discharge her incidents that occurred outside the circumstances of plaintiff's termination. Specifically, plaintiff alleges that she was discriminated against when defendant transferred her from a temporary detail in Haiti back to Ft. Leavenworth, when she was denied a security clearance, when Dr. Morris's former wife tried to set her up with Dr. Lackey, and when another historian, George Mordica, received an award that plaintiff did not. Further, plaintiff alleges she was discriminated against because she performed duties unrelated to her position and was not given adequate performance standards. Finally, she alleges that she was denied a privilege afforded to male historians of being allowed to choose which professional development conferences she wished to attend.
As noted above, plaintiff does not raise independent claims of gender discrimination related to the terms and conditions of her employment regarding these events. Moreover, the events plaintiff discusses do not constitute direct evidence of gender discrimination against plaintiff, as they do not relate directly to plaintiff's discharge. None of these events were among the legitimate, nondiscriminatory reasons advanced by defendant for terminating plaintiff. Plaintiff attempts to present these incidents as circumstantial evidence of gender discrimination. As has been discussed, the court must apply the McDonnell Douglas burden-shifting standard to determine whether a genuine issue of material fact exists to show that the defendant's proffered reasons for terminating plaintiff are pretextual. The court has noted that plaintiff cannot state a prima facie case under McDonnell Douglas, that defendants placed before the court legitimate, nondiscriminatory reasons for discharging plaintiff, and that plaintiff has not shown those reasons to be pretextual. Accordingly, the court does not consider these arguments of "discriminatory animus" to create issues of material fact, given the analysis the court must follow in cases in which circumstantial evidence is alleged. Because plaintiff did not raise independent claims of gender discrimination based upon these incidents, it is not necessary for the court to analyze them further.
In this case, plaintiff has failed to presented evidence to create a genuine issue of material fact that defendants' proffered reasons for terminating her are pretextual. Summary judgment is thus appropriate on plaintiff's claim of gender discrimination based upon her discharge.
IV. Order
IT IS THEREFORE ORDERED that defendant's motion for leave to substitute an affidavit bearing the original signature of Lurita Williams (Doc. 46) is granted.
IT IS FURTHER ORDERED that defendant's motion for summary judgment (Doc. 44) is granted. Because no claims remain pending, plaintiff's case is dismissed in its entirety.
As previously indicated, plaintiff voluntarily dismissed her retaliation claim.