* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by desig nation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 21, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DORI ATKINS,

Plaintiff-Appellant,

v. SOUTHWESTERN BELL TELEPHONE COMPANY, sued as Southwestern Bell Telephone,

Defendant-Appellee. No. 04-5018 (D.C. No. CV-02-579-EA (J)) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District Judge.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Plaintiff Dori Atkins sued her employer, Southweste rn Bell Telephone Company, for employment discrimination and retaliat ion. The district court granted summary judgment to Southwestern Bell on al l claims, and Plaintiff appeals. We have jurisdiction under 28 U.S.C. § 12 91. We affirm in part and remand in part for the district court to dismiss Pl aintiff’s retaliation claim for lack of jurisdiction. I At all pertinent times Plaintiff worked in Southwes tern Bell’s coin telephone department, where her job duties includedservicing pay telephones. On December 11, 1998, Plaintiff reported to her sup ervisor, Laura Cooper, that Plaintiff’s co-worker, Lawrence Harris, had critici zed Plaintiff’s job performance and had been acting inappropriately toward her. Wh en Cooper asked Plaintiff what she meant, Plaintiff replied, “If I tell you w hat 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 s exual harassment. Cooper promptly paged Harris in the field and direc ted him to meet with her. She told him that Plaintiff had complained ab out 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 violation s would not be tolerated.-3-

Cooper later told Plaintiff that she had spoken to Harris. At some point Cooper also told Plaintiff to let her know if Plaintiff ha d any problems with her male coworkers. Southwestern Bell was not informed of any further h arassment before May 18, 2001, when Plaintiff complained to her unio n about an incident in which a co-worker took her assigned collection route. Atthat time she also alleged that Harris had continued to harass her, despite her hav ing 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 andthat Cooper was retaliating against her for complaining about Harris. Southwes tern Bell initiated an investigation. The investigator concluded that many of Plaintiff’s allegations could not be confirmed, but that Harris had made atleast 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 respo nsibilities. About this time Plaintiff also filed an intake ques tionnaire and affidavit with the Equal Employment Opportunity Commission (E EOC). On March 25, 2002, she filed a formal EEOC charge alleging sexua l harassment. She then filed-4-

suit under Title VII of the Civil Rights Act, 42 U. S.C. §§ 2000e through 2000e-17, alleging that she was subjected to a host ile work environment and retaliation. The district court held that Southwes tern Bell had responded adequately to Plaintiff’s complaints of sexual hara ssment. It further determined that Plaintiff had not exhausted her administrative remedies with regard to her retaliation claim, and that, in the alternative, Pl aintiff had not established that the alleged retaliation constituted an adverse employme nt action. It granted summary judgment to Southwestern Bell, and Plaintiff appeal s. II We review the district court’s grant of summary jud gment 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 o f the grant of a motion for summary judgment, we affi rm 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 erre d in determining as a matter of law that Southwestern Bell responded adequately to her December 11, 1998, complaint to Cooper.-5-

We have held that “[a]n employer is not strictly li able for all harassment of which it actually or constructively knew; it may di scharge 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 ef fectiveness, which in turn evidences such reasonable calculation.” Id. If the harassment does not stop, however, we “consider the timeliness of the plainti ff’s complaint, whether the employer unduly delayed, and whether the response w as 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 object ionable 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 rem arks and took actions she considered harassing. She contends that Harris’s r esumed 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, compl aint.-6-

Under the circumstances, Southwestern Bell responde d reasonably to Plaintiff’s December 11, 1998, complaint. Cooper p romptly called Harris in from the field and spoke with him about Plaintiff’s comp laint. 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 Pla intiff to let her know if Plaintiff had any problems with male co-workers. It is notab le 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 ora l 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 herunion, 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 Dep artment, or call the ethics hotline. In light of Plaintiff’s silence from Dece mber 1998 to mid-2001, Southwestern Bell had no way to determine that Plai ntiff felt she was still being harassed and that stronger measures might be requir ed. And when Plaintiff finally broke her silence, Southwestern Bell invest igated and applied such-7-

measures. We find no reason to reverse the distric t court’s grant of summary judgment on Plaintiff’s harassment claim. Retaliation Plaintiff also argues that the district court erredin granting summary judgment on her retaliation claim on the ground that Plaintiff did not exhaust her administrative remedies. She contends that her Int ake Questionnaire and associated affidavit, which mentioned Cooper’s hars hness to her, adequately took the place of a formal EEOC charge for the purpose o f exhaustion of administrative remedies. This court has determined that exhaustion of admini strative 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 qu otation 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 Plai ntiff’s intake questionnaire and sworn supporting affidavit could be deemed the equivalent of a formal charge, we do not believe that Plaintiff ade quately exhausted her remedies with regard to her retaliation claim. Plaintiff’s formal charge, filed approximately ten months after she submitted her intake questionn aire, did not include any indication that she wished to pursue a retaliation claim or describe any facts that-8-

would support such a claim. The omission of any su ch material in the later-filed formal charge indicates that Plaintiff had abandone d 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 sup plement her charge with the allegations in her intake questionnaire, as “it is the charge rather than the questionnaire that matters” and she could have incl uded 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 th e 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 appropriatel y held that Plaintiff had not exhausted her administrative reme dies. Nevertheless, having made this determination, the d istrict court should have dismissed this claim for lack of jurisdiction rathe r 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 di strict court correctly dismissed, under Fed. R. Civ. P. 12(b)(1), claim th at was not administratively exhausted before Bureau of Indian Affairs). Consequently, we must remand the-9-

matter to the district court so that it may vacate its grant of summary judgment in favor of Southwestern Bell on Plaintiff’s retaliati on claim and dismiss the claim for lack of jurisdiction. III The summary judgment on Plaintiff’s harassment clai m is AFFIRMED. The summary judgment on Plaintiff’s retaliation cla im 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