* Spencer Abraham is substituted for his predecessor, Bill Richardson, as

Secretary of Energy. See Fed. R. App. P. 43(c)(2).

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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. 

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

### JAN 30 2002 

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

KATHY DAWSON,

Plaintiff-Appellant,

v. SPENCER ABRAHAM, Secretary, Department of Energy, *

Defendant-Appellee. No. 01-2037 (D.C. No. CIV-99-871-JC/LFG

(D. N.M.)

ORDER AND JUDGMENT **

Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and BRORBY , Senior Circuit 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 Kathy Dawson formerly worked for several years as a senior accountant, GS-14, at the Albuquerque, New Mexico o ffice of defendant Department of Energy (DOE). After a number of job assignments and problems at work, including an equal employment opportunity (EEO) complaint of sex discrimination, plaintiff was assigned in 1998 to aposition that, according to her, had no job duties or title and that forced her to r eport to an employee of a lower grade level. Plaintiff filed EEO charges of retali ation and remained in this position until approximately October 1999, when she arranged her own transfer to a DOE position in Morgantown, West Virginia. Plaintiff sued defendant, alleging sex discriminati on and retaliation for engaging in protected EEO activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. In her first am ended complaint, plaintiff alleged in paragraph 20A-N a series of events at wo rk that formed the basis of her sex discrimination and retaliation claims. See Jt. App. at 24-25. On March 13, 2000, plaintiff stipulated to dismiss the allegatio ns in paragraph 20A-K, however, leaving only the allegations in paragraph 20L-N. See id. at 3 (docket entry 21). As a result, plaintiff’s remaining allegations were that: L. she was not reassigned back to the Budget and R esources Management Division in March or April of 1997; M. she has been stripped of her position, duties and responsibilities in retaliation for protected activity;-3-

N. she was required to report to a[n] employee bel ow her GS-14 status. Id. at 25. Based on plaintiff’s failure to allege that she was treated differently from her male counterparts, the district court dismissedplaintiff’s sex discrimination claim. The district court determined that plaintif f’s claim that she was forced to report to an employee below her grade level when he r supervisor was out of the office was not an adverse action and did not support a retaliation claim. The court concluded that plaintiff had made out a primafacie case of retaliation based on her remaining allegations, but had failed to sho w that defendant’s asserted legitimate reasons for its actions toward her were a pretext for discrimination. The court therefore granted summary judgment to def endant on plaintiff’s retaliation claim. Plaintiff appeals, arguing that: (1) the district court erred in dismissing her claim for retaliation based on protected activity u nder Title VII; (2) the district court erred in determining that defendant set fortha legitimate non-discriminatory/retaliatory reason for her reass ignment in 1998; and (3) if this court finds a legitimate non-discriminatory reason for plaintiff’s reassignment, she has proven that the reasons suggested by defend ant were pretextual. We have jurisdiction under 28 U.S.C. § 1291.-4-

We review the grant of summary judgment de novo, us ing the same standard under Fed. R. Civ. P. 56(c) that the district court applied. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary jud gment is appropriate “if the pleadings, depositions, answers to interrog atories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c). Our only question concerns plaintiff’s claim in par agraph 20M that she “has been stripped of her position, duties and resp onsibilities in retaliation for protected activity.” Jt. App. at 25. The districtcourt apparently construed this vague assertion as relating to the abolishment of p laintiff’s position in the Budget and Resources Management Division. As determined b y the district court, defendant offered a legitimate explanation for thataction, which plaintiff did not rebut. Plaintiff contends, however, that the alleg ation in paragraph 20M relates to her 1998 transfer to the Contracts and Procurement Division where, according to her, she did not have a job title or duties and res ponsibilities commensurate with her grade. Defendant argues that plaintiff’s retal iation charge was untimely and the claim is barred. We reject defendant’s challenge on the basis of unt imeliness. Plaintiff’s retaliation charge is timely on a continuing violat ion theory, and she has-5-

exhausted her administrative remedies on the claim stated in paragraph 20M. See Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1310 (10th Cir. 1999). With regard to that claim, plaintiff’s materials ma ke clear that the job she was referring to in paragraph 20M was her 1998 tran sfer to the Contracts and Procurement Division, a temporary detail that she c laimed went on too long with no particular duties. See id. at 129-30, 132-34, 137-38. In response to plainti ff’s very specific allegations that she had no job title or duties commensurate with her grade on that job, defendant offered only conclusory evidence from her former supervisors. Her former first-level supervisor tes tified that he needed an individual to perform certain duties that he consid ered to be meaningful work, but did not describe the duties plaintiff was actually asked to perform while working for him. See id. at 64-65 (Aff. of Robert C. Braden). The directorof the Contracts and Procurement Division at the time plai ntiff worked there provided only a conclusory description of part of her job duties. See id. at 66-67 (Aff. of William C. Meyers). Defendant has not shown that p laintiff did the work of a GS-14 on her Contracts and Procurement Division j ob. Defendant offered no reason to justify plaintiff’s lack of duties or tit le, and there is therefore no reason for this court to reach the issue of pretext. We r emand this claim to the district court for additional proceedings.-6-

With respect to plaintiff’s other issues on appeal, we affirm for substantially the same reasons as those set forth i n the district court’s December 28, 2000 memorandum opinion and order. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED in part and REVERSED in part , and the case is REMANDED to the district court for additional proce edings.

Entered for the Court

Stephanie K. Seymour Circuit Judge