F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 21, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DORI ATKINS,
Plaintiff-Appellant,
v. No. 04-5018
(D.C. No. CV-02-579-EA (J))
SOUTHWESTERN BELL (N.D. Okla.)
TELEPHONE COMPANY, sued as
Southwestern Bell Telephone,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
Plaintiff Dori Atkins sued her employer, Southwestern Bell Telephone
Company, for employment discrimination and retaliation. The district court
granted summary judgment to Southwestern Bell on all claims, and Plaintiff
appeals. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and
remand in part for the district court to dismiss Plaintiff’s retaliation claim for lack
of jurisdiction.
I
At all pertinent times Plaintiff worked in Southwestern Bell’s coin
telephone department, where her job duties included servicing pay telephones.
On December 11, 1998, Plaintiff reported to her supervisor, Laura Cooper, that
Plaintiff’s co-worker, Lawrence Harris, had criticized Plaintiff’s job performance
and had been acting inappropriately toward her. When Cooper asked Plaintiff
what she meant, Plaintiff replied, “If I tell you what he said, you would hit the
floor.” Aplt. App. I at 116 (internal quotation marks omitted). Cooper
interpreted Plaintiff’s comment as a complaint of sexual harassment.
Cooper promptly paged Harris in the field and directed him to meet with
her. She told him that Plaintiff had complained about his conduct, and that if he
had been making inappropriate comments to Plaintiff, he had to stop. Harris
denied acting inappropriately. Cooper reminded Harris of Southwestern Bell’s
antiharassment policy and warned him that violations would not be tolerated.
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Cooper later told Plaintiff that she had spoken to Harris. At some point Cooper
also told Plaintiff to let her know if Plaintiff had any problems with her male co-
workers.
Southwestern Bell was not informed of any further harassment before
May 18, 2001, when Plaintiff complained to her union about an incident in which
a co-worker took her assigned collection route. At that time she also alleged that
Harris had continued to harass her, despite her having informed Cooper. Union
representatives met with Cooper and Harris in informal attempts to resolve
Plaintiff’s complaints.
On June 5, 2001, Plaintiff called the Southwestern Bell ethics helpline to
complain that Harris was sexually harassing her and that Cooper was retaliating
against her for complaining about Harris. Southwestern Bell initiated an
investigation. The investigator concluded that many of Plaintiff’s allegations
could not be confirmed, but that Harris had made at least one sexually charged
remark to Plaintiff in 2001 and had used profanity in the workplace. Harris was
issued a performance notice (the first step in Southwestern Bell’s formal
disciplinary process) and relieved of certain responsibilities.
About this time Plaintiff also filed an intake questionnaire and affidavit
with the Equal Employment Opportunity Commission (EEOC). On March 25,
2002, she filed a formal EEOC charge alleging sexual harassment. She then filed
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suit under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e through
2000e-17, alleging that she was subjected to a hostile work environment and
retaliation. The district court held that Southwestern Bell had responded
adequately to Plaintiff’s complaints of sexual harassment. It further determined
that Plaintiff had not exhausted her administrative remedies with regard to her
retaliation claim, and that, in the alternative, Plaintiff had not established that the
alleged retaliation constituted an adverse employment action. It granted summary
judgment to Southwestern Bell, and Plaintiff appeals.
II
We review the district court’s grant of summary judgment de novo, viewing
the factual record in the light most favorable to the non-moving party. See
Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 531 (10th Cir. 1998). “On appeal of
the grant of a motion for summary judgment, we affirm unless the appellant
points to evidence in the record establishing a genuine issue of material fact.”
Petersen v. Utah Dep’t of Corr. , 301 F.3d 1182, 1185 (10th Cir. 2002).
Sexual Harassment
Plaintiff first argues that the district court erred in determining as a matter
of law that Southwestern Bell responded adequately to her December 11, 1998,
complaint to Cooper.
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We have held that “[a]n employer is not strictly liable for all harassment of
which it actually or constructively knew; it may discharge its obligation by taking
appropriate remedial or preventive action.” Adler v. Wal-Mart Stores, Inc. ,
144 F.3d 664, 676 (10th Cir. 1998). The applicable test is whether the employer’s
response is “reasonably calculated to end the harassment.” Id. (internal quotation
marks omitted). “A stoppage of harassment shows effectiveness, which in turn
evidences such reasonable calculation.” Id. If the harassment does not stop,
however, we “consider the timeliness of the plaintiff’s complaint, whether the
employer unduly delayed, and whether the response was proportional to the
seriousness and frequency of the harassment.” Id. “[A]n employer is not liable,
although a perpetrator persists, so long as each response was reasonable.” Id.
Plaintiff concedes that Harris moderated the objectionable behavior for a
few months after Cooper spoke to him on December 11, 1998. But Plaintiff
alleges that Harris then resumed his objectionable conduct, and that at various
times in 1999, 2000, and early 2001 Harris made remarks and took actions she
considered harassing. She contends that Harris’s resumed harassment shows that
there is a genuine issue whether Southwestern Bell’s 1998 response actually was
reasonable, and she argues that the company should have taken in 1998 the steps
that it took in response to her June 5, 2001, complaint.
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Under the circumstances, Southwestern Bell responded reasonably to
Plaintiff’s December 11, 1998, complaint. Cooper promptly called Harris in from
the field and spoke with him about Plaintiff’s complaint. When Harris denied
acting inappropriately, she counseled him about Southwestern Bell’s
antiharassment policy and instructed him to follow it. She was satisfied that
Harris accepted her instruction. She also told Plaintiff to let her know if Plaintiff
had any problems with male co-workers. It is notable that this was the first time
that Harris had been accused of sexual harassment, so that Southwestern Bell had
no baseline to determine that the December 1998 oral counseling would not deter
objectionable behavior. See Adler , 144 F.3d at 677.
Moreover, Plaintiff concedes that she did not make any further complaint
about Harris, either to Southwestern Bell or to her union, until May and June
2001, more than two years later. She knew that Southwestern Bell had an
antiharassment policy, and she knew that she could report Harris’s conduct to
Cooper, upper management, or the Human Resource Department, or call the ethics
hotline. In light of Plaintiff’s silence from December 1998 to mid-2001,
Southwestern Bell had no way to determine that Plaintiff felt she was still being
harassed and that stronger measures might be required. And when Plaintiff
finally broke her silence, Southwestern Bell investigated and applied such
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measures. We find no reason to reverse the district court’s grant of summary
judgment on Plaintiff’s harassment claim.
Retaliation
Plaintiff also argues that the district court erred in granting summary
judgment on her retaliation claim on the ground that Plaintiff did not exhaust her
administrative remedies. She contends that her Intake Questionnaire and
associated affidavit, which mentioned Cooper’s harshness to her, adequately took
the place of a formal EEOC charge for the purpose of exhaustion of
administrative remedies.
This court has determined that exhaustion of administrative remedies is a
“jurisdictional prerequisite” to filing suit under Title VII. Jones v. Runyon , 91
F.3d 1398, 1399 & n.1 (10th Cir. 1996) (internal quotation marks omitted).
Consequently, if Plaintiff has not exhausted her administrative remedies, neither
the district court nor this court has jurisdiction to entertain her retaliation claim.
Even assuming for purposes of this appeal that Plaintiff’s intake
questionnaire and sworn supporting affidavit could be deemed the equivalent of a
formal charge, we do not believe that Plaintiff adequately exhausted her remedies
with regard to her retaliation claim. Plaintiff’s formal charge, filed approximately
ten months after she submitted her intake questionnaire, did not include any
indication that she wished to pursue a retaliation claim or describe any facts that
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would support such a claim. The omission of any such material in the later-filed
formal charge indicates that Plaintiff had abandoned this claim. See McDonald v.
Corr. Corp. of Am., 181 F. Supp. 2d 1274, 1277-78 (D. N.M. 2002); Smith v. Bd.
of County Comm’rs, 96 F. Supp. 2d 1177, 1186-87 (D. Kan. 2000); see also
Novitsky v. Am. Consulting Eng’rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999)
(holding that plaintiff would not be allowed to supplement her charge with the
allegations in her intake questionnaire, as “it is the charge rather than the
questionnaire that matters” and she could have included the allegations in the
charge). “Only the charge is sent to the employer, and therefore only the charge
can affect the process of conciliation.” Novitsky, 196 F.3d at 702; see also
29 C.F.R. § 1601.14(a) (providing for service of the charge upon the respondent).
Abandonment of a claim before the EEOC is a failure to exhaust administrative
remedies. See Jones, 91 F.3d at 1401. The district court appropriately held that
Plaintiff had not exhausted her administrative remedies.
Nevertheless, having made this determination, the district court should have
dismissed this claim for lack of jurisdiction rather than granting summary
judgment to Southwestern Bell. Cf. Davis ex rel. Davis v. United States , 343 F.3d
1282, 1295-96 (10th Cir. 2003) (holding that the district court correctly
dismissed, under Fed. R. Civ. P. 12(b)(1), claim that was not administratively
exhausted before Bureau of Indian Affairs). Consequently, we must remand the
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matter to the district court so that it may vacate its grant of summary judgment in
favor of Southwestern Bell on Plaintiff’s retaliation claim and dismiss the claim
for lack of jurisdiction.
III
The summary judgment on Plaintiff’s harassment claim is AFFIRMED.
The summary judgment on Plaintiff’s retaliation claim is REMANDED so that the
district court can vacate its judgment in favor of Southwestern Bell and dismiss
the claim for lack of jurisdiction.
Entered for the Court
Harris L Hartz
Circuit Judge
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