Plotke v. White, No. 02-3289.

• Citation: 405 F.3d 1092
• Decision Date: 28 April 2005
• Docket Number: No. 02-3289.
• Parties: A. Jane PLOTKE, Ph.D., Plaintiff-Appellant, v. Thomas E. WHITE, Secretary of the Army, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

405 F.3d 1092

A. Jane PLOTKE, Ph.D., Plaintiff-Appellant, v. Thomas E. WHITE, Secretary of the Army, Defendant-Appellee.

No. 02-3289.

United States Court of Appeals, Tenth Circuit.

April 28, 2005.

Jeffrey W. Bruce, The Bruce Law Firm, Belton, MO, for Plaintiff-Appellant.

Nancy Landis Caplinger, Assistant United States Attorney, Topeka, KS, (Eric F. Melgren, United States Attorney, and Melanie D. Caro, Assistant United States Attorney, Kansas City, KS, on the brief), for the Defendant-Appellee.

Before SEYMOUR, McKAY and TYMKOVICH, Circuit Judges.

SEYMOUR, Circuit Judge.

Dr. A. Jane Plotke filed suit against the Secretary of the Army under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, alleging the Army had unlawfully terminated her from her employment as an historian due to her gender. The district court granted summary judgment to the Army. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.

I.

Whether the Army was entitled to summary judgment is a question of law we review de novo. Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1201 (10th Cir.2003). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). In applying this standard, "[a]ll inferences arising from the record before us must be drawn and indulged in favor of the [nonmovant]." Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir.2003) (internal quotations omitted). "Credibility determinations [and] the weighing of the evidence ... are jury functions, not those of a judge...." Id. (internal quotations omitted). Read in this light, the record reflects the following facts.

Dr. Plotke was hired by Dr. Rodler Morris and Dr. Scott Lackey on July 10, 1994, as a GS-12 historian at the U.S. Army Combined Arms Center (CAC), Army Knowledge Network-Combat Training Center-Warrior Information Network (CTC-WIN) located at Fort Leavenworth, Kansas. Dr. Plotke's employment was subject to successful completion of a one-year probationary period pursuant to 5 C.F.R. § 315.801 et seq., after which she would be considered a permanent career-conditional federal civilian employee. Dr. Plotke was the first and only female to be hired as an historian at Fort Leavenworth.

Dr. Plotke testified that, on her first day of work, Dr. Lackey told her he had been under pressure from the Civilian Personnel Office (CPO) to hire a female historian; Dr. Plotke was the only female historian who had applied for the position; and, rather than risk losing the position and funding, Dr. Morris and Dr. Lackey had decided to hire Dr. Plotke. According to Dr. J. Patrick Hughes, the CAC Assistant Command Historian, Dr. Lackey remarked that the EEO office "would get off their back" and stop pressuring them to hire a female historian because Dr. Plotke had received the position.¹ Aplt.App. at 522. Dr. Lew Bernstein, a male, was hired as a CAC GS-12 historian at the same time as Dr. Plotke, but was assigned to a different unit.

Immediately upon arriving at Fort Leavenworth, Dr. Plotke was informed of a history office "staff ride" to the General Custer Battlefield at Little Big Horn, South Dakota. Fellow historian George Mordica, who was a temporary and later a term employee, was planning the event. Mr. Mordica was a retired Army Major and had not obtained a Ph.D. When Mr. Mordica told Dr. Plotke about the staff ride, he painted a picture of inhospitable living conditions and downplayed the significance of the event. Mr. Mordica described the staff ride as involving "very rough" camping conditions in a bunkhouse with a "dormitory arrangement" lacking separate sleeping facilities for a female. Id. at 394, 673. Dr. Plotke declined the "invitation" after determining that her participation was obviously being discouraged. Mr. Mordica stated to others that having a female in attendance on the trip would prevent the all-male group from "sitting around drinking beer, smoking cigars, and farting." Id. at 521, 1028. Contrary to the negative representations he made to Dr. Plotke regarding the trip, Mr. Mordica stated in a deposition that the staff ride was a very professionally rewarding activity and experience.

Dr. Plotke was initially advised by Dr. Morris that a significant portion of her job duties would include historical research, analysis and writing. But her assignment from July until October 1994 was instead to "support" Dr. Lackey in the drafting of a computer services contract, a task which was largely administrative and clerical in nature and fell outside of Dr. Plotke's position description. From October until December 1994, she was assigned to various administrative and computer projects. By contrast, Dr. Bernstein, who had been hired at the same time as Dr. Plotke, was assigned to historical research and writing projects supervised by Dr. Richard Gorell. Dr. Plotke was not provided any written performance appraisal by Dr. Morris or Dr. Lackey during the first half of her probationary year, although her performance was highly praised verbally. See id. at 365, 827 (Dr. Plotke's job performance was described as "fantastic" and "excellent" by Dr. Lackey and Dr. Morris).

Dr. Plotke complained to Dr. Lackey and the CPO about her initial job assignments. In response, Dr. Lackey told Dr. Plotke that she could not perform historical research and analysis until her security clearance arrived. In December 1994, Dr. Plotke discovered that her security clearance, along with Dr. Bernstein's, had arrived at the Fort Leavenworth CTC-WIN facility in late August or early September 1994. Dr. Bernstein was given his clearance shortly after its arrival but Dr. Plotke's clearance was not delivered to her until mid-December 1994.

After she hunted down her own security clearance, Dr. Plotke was temporarily assigned on detail to the "Haiti project" under the supervision of Dr. Gorell. This assignment involved some historical research and analysis as well as administrative computer tasks similar to those Dr. Plotke had previously been assigned. Dr. Gorell affirmed that Dr. Plotke's performance on the Haiti project was "excellent." Id. at 550. He also testified that she was the only person available with the technical expertise to do the job. Dr. Plotke's work on the Haiti project was highly and publicly praised by Lt. Col. Steve Dietrich of the Army's Center on Military History in Washington, D.C. It was also known by her colleagues that she was very happy working on the Haiti project.

Despite Dr. Plotke's success and personal satisfaction on the Haiti detail, Dr. Morris abruptly removed her from the project in mid-May 1995, and reassigned her to an administrative computer project supporting Dr. Lackey in CTC-WIN. Dr. Morris claimed there was an urgent need to transfer Dr. Plotke back to CTC-WIN, although Dr. Plotke's work on the Haiti project was not yet complete and there was no deadline to complete the CTC-WIN project. Dr. Morris later admitted that subsequent to Dr. Plotke's termination, the CTC-WIN project was never completed. He also conceded that he transferred Dr. Plotke after being informed by the CPO that her one-year probationary period was nearing its completion. At the end of successful completion of her probationary year, Dr. Plotke's appointment could have been extended. Dr. Morris also testified that he believed Dr. Gorell would have recommended Dr. Plotke's employment be extended beyond her one-year probationary period at the time of the transfer.

Dr. Plotke began working again under the full supervision of Dr. Lackey for the CTC-WIN project on June 5, 1995. On June 8, Dr. Plotke submitted a memo requesting permission to attend four seminars at a conference for historians in Canada scheduled over two weeks in August. "[I]t was the office policy that historians could (and were actually encouraged to) attend an all expenses paid professional conference of their own choosing each year, even on topics for which there was only a personal interest and not necessarily a business-related purpose." Id. at 522. Prior to June 1995, Dr. Plotke had not exercised her conference choice for the fiscal year. Dr. Lackey and Dr. Morris agreed to send Dr. Plotke to only two of the four seminar sessions.² Dr. Morris left it to Dr. Lackey to "make recommendations" to Dr. Plotke regarding which two seminars she should attend. Id. at 621, 660-61. In an e-mail memo dated June 16, Dr. Lackey advised Dr. Plotke that she was limited to attending two seminars and suggested she attend one concerning peacekeeping operations and another on computers and history. Dr. Lackey did not indicate that Dr. Plotke was required to select the two seminars he recommended, nor that her selections had to be scheduled in the same week. In fact, Dr. Morris admitted that Dr. Lackey's memo was not clear in conveying its alleged intent that Dr. Plotke was to choose two sessions within the same week.

Dr. Lackey requested that Dr. Plotke provide him with cost figures regarding the seminars. Dr. Lackey's secretary, Linda Darnell, contacted Dr. Plotke to obtain those figures and Dr. Plotke faxed her the necessary information. Ms. Darnell did not specifically advise Dr. Plotke that she was using the cost information to prepare a DD Form 1610, "Request and Authorization for TDY Travel of DOD Personnel." The two seminars Dr. Plotke ultimately selected to attend were scheduled in different weeks. Dr. Plotke also indicated to Ms. Darnell that she intended to take two weeks of annual leave at the conclusion of the conferences. Dr. Lackey anticipated that Dr. Plotke would take annual leave in connection with her professional travel, as was common practice by the male historians while on temporary duty, and he so stated in a memo to Dr. Morris.³ Dr. Lackey admitted...