F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 26 2001
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 MARGARET E. WATSON,

          Plaintiff-Appellant,
 v.                                                      No. 99-1450
 GALE A. NORTON, 1 Secretary, U.S.              (D.C. No. 97-WY-1166-WD)
 Department of the Interior,                             (D. Colo.)

          Defendant-Appellee.




                             ORDER AND JUDGMENT         2




Before BRISCOE, BALDOCK,          and MURPHY , Circuit Judges.


      Plaintiff Margaret E. Watson appeals from rulings by the district court

prior to and following a jury trial on her claims of racial discrimination and

retaliation against her former employer. We affirm in part, reverse in part, and

remand for further proceedings on the racial discrimination claim.

                                         I.

      1
       Pursuant to Fed. R. App. P. 43(c)(2), Gale A. Norton is substituted for
Bruce Babbitt, Secretary of the Interior, as a defendant in this action.
      2
        This order and judgment is not binding precedent, except under the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.
      Watson was hired as a reference librarian by the United States Department

of the Interior Geological Survey (USGS) in March 1984. Between 1984 and

1991, she received performance ratings of outstanding or excellent. She was the

only African-American employee at the library from 1991 until her termination.

      In 1991, Tommie Ann Gard became Watson’s supervisor. Gard began

pressuring Watson to become a member of the ethnic minority committee. In

March 1992, Gard assigned Watson the tasks of weeding out pamphlets and

articles that were no longer needed and reshelving books.

      Watson filed a complaint with the Equal Employment Opportunity

Commission (EEOC) in 1993, alleging racial discrimination as a result of a

comment on her annual performance appraisal. Gard was aware that the

complaint had been filed. Barbara Wagner became branch librarian in 1994 and

was Gard’s immediate supervisor. Wagner was vaguely aware of the EEOC

claim. The complaint was dismissed for failure to accept an offer of full relief.

      In October or November 1994, Watson was given one week to devise a

plan to reverse the call number order of the titles and the reference stacks. She

contacted staff at the library headquarters in Virginia for advice on the project.

She was reprimanded for failing to complete the task on time, for communicating

with library headquarters, and for failing to communicate with her superiors.

      On December 29, 1994, Gard assigned Watson to prepare a serials holding


                                          2
list, in addition to her other work. She was to list all serial publications and their

call numbers in alphabetical order, including information about missing issues,

name changes, and alternative names. The previous list was outdated and the

library was considering cutting costs by reducing the number of publications

ordered. Wagner approved the assignment. Gard instructed Watson to complete

the alphabetical list of the serial titles and their call numbers by February 15,

1995. Gard testified that she estimated how long the task should take after

looking at the Kardex file and concluding the information in that file was

accurate. Watson had limited access to the Kardex file and found it to be

inaccurate. Watson discussed the assignment with people who worked in

technical services because they had experience with comparable tasks. Based

upon those discussions, Watson concluded she had been set up to fail because the

time frame was unrealistic. Watson spoke with Peggy Merryman, the head of

acquisitions at the library headquarters, about cancellation lists and serial lists.

After learning of this conversation, Gard told Watson not to contact library

headquarters again without Gard’s permission. Other librarians regularly

communicated with library headquarters.

      On February 13, Watson informed Gard that she would not be able to meet

the first deadline of February 15 because of her inability to obtain sufficient

access to the Kardex and a computer. Gard did not discipline Watson for this


                                           3
delay. In late February, Wagner announced that the library was being

reorganized and Watson was transferred to the position of team coordinator of

technical services. Watson had never worked in technical services and had

received no training in that area for over twenty years. The duties in technical

services were the routine duties of a trained librarian. Despite the transfer, Gard

instructed Watson to continue to work on the serials list. Gard informed Watson

in March that the list was to include the specific volumes the library held of each

title and Watson was given a new deadline of May 1. In early March, Wagner

and Gard met with Watson to discuss an allegation that Watson had been

disrespectful to the director of the USGS library, Ed Liszewski.

        Watson filed a charge of discrimination with the EEOC in March 1995.

Gard was aware of this claim and discussed it with Wagner. Watson alleged

racial discrimination and retaliation based on an incident in December 1994

where she was considered absent without leave instead of on bereavement leave

to attend her uncle’s funeral. The USGS denied Watson’s claim and Watson

appealed. The EEOC did not rule on her appeal. After Watson submitted

additional documentation, her leave was changed to bereavement leave in January

1995.

        Between March and May 1995, Gard discussed the progress of the project

with Watson on a weekly basis. Watson told Gard that she had difficulty finding


                                          4
time to work on the project. Gard assured Watson her performance was not being

evaluated because she was learning her new duties at technical services.

However, on April 20, Gard counseled Watson, reminding her the list was due

May 1. In late April or May, Watson expressed to Gard her concern that her

workload was significantly higher than that of other employees. Gard allegedly

grinned at her in response and told Watson her work plan was fair. Watson did

not meet the May 1 deadline and Gard issued a written reprimand on June 30.

Gard instructed Watson to work one hour per day on the project.

      Watson was reprimanded for not following proper procedure for requesting

leave for the July 4 holiday. In response, Watson filed an EEO charge on July

21. On July 25, Wagner directed Watson to work twenty hours per week on the

list, which was to be completed by September 15. On that same day, Wagner

proposed that Watson be placed on a three-day suspension without pay, and

Watson was suspended. Watson filed a formal grievance. Beginning on July 31,

Watson was required to keep a log of her time spent on the list. Watson did not

meet the September 15 deadline and turned in the list as completed to that point.

On October 2, Wagner gave Watson a new deadline of November 30. Watson

was instructed to work full-time on the project, with some exceptions. Wagner

recommended a fourteen-day suspension, but Watson was not suspended.

      Watson did not meet the November 30 deadline and Gard demanded that


                                         5
Watson give the list to her. In December 1995, Wagner and Gard discussed

whether Watson should be terminated. In February 1996, Watson received the

proposal that her employment be terminated. The next day, Wagner and Gard

notified Watson she was being transferred to the former Bureau of Mines library.

No one was assigned to complete the list.

      Watson wrote to David Russ, the acting associate chief geologist at library

headquarters to protest her removal. Russ issued a “Decision on Proposal to

Remove,” sustaining the decision to remove Watson, effective April 15, 1996.

As the final decision maker, Russ stated the reasons for termination were

Watson’s refusal to perform work assignments and refusal to follow directions.

Watson appealed to the Merit Systems Protection Board (Board) and a formal

hearing was held before an Administrative Law Judge (ALJ), who affirmed the

agency’s decision.

      Watson filed her complaint in district court, alleging racial discrimination

and retaliation in violation of 42 U.S.C. § 2000e-16(a), which provides that “[a]ll

personnel actions affecting employees or applicants for employment . . . shall be

made free from any discrimination based on race, color, religion, sex, or national

origin.” USGS filed a motion to dismiss or, in the alternative, for summary

judgment. A magistrate court dismissed three counts of the complaint. After

presentation of Watson’s case at the jury trial, the district court granted in part


                                           6
USGS’s motion for judgment as a matter of law, holding that Watson’s transfer

to technical services was not an adverse action and that the only adverse action

that Watson suffered was termination. During deliberations, the jury sent a note

to the district court that included a statement of how the jury stood numerically

on the issues. The court declared a mistrial. The court then granted USGS’s

motion for judgment as a matter of law on the racial discrimination and

retaliation claims.

                                           II.

      We review discovery rulings for an abuse of discretion. See Cole v.

Ruidoso Mun. Schs., 

, 1386 (10th Cir. 1994). Similarly, evidentiary

rulings “generally are committed to the very broad discretion of the trial judge,

and they may constitute an abuse of discretion only if based on an erroneous

conclusion of law, a clearly erroneous finding of fact or a manifest error in

judgment.” Webb v. ABF Freight Sys., Inc., 

, 1246 (10th Cir.

1998). If we find an erroneous discovery or evidentiary ruling, Watson would be

entitled to a new trial only if the error affected her substantial rights. See 

de novo the district court's determination of a motion for

judgment as a matter of law, applying the same standard as the district court.

Mason v. Okla. Turnpike Auth., 

, 1450 (10th Cir. 1997). Judgment

as a matter of law is appropriate “[i]f during a jury trial a party has been fully


                                           7
heard on an issue and there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” Fed. R. Civ. P. 50(a). “[A]

court may grant the motion ‘only if the evidence points but one way and is

susceptible to no reasonable inferences which may support the opposing party's

position.’” Finley v. United States, 

, 968 (10th Cir. 1996) (quoting

Q.E.R., Inc. v. Hickerson, 

, 1180 (10th Cir. 1989)).

                                         III.

      Watson argues that the district court erred in denying her motion to reopen

discovery, denying her motion to take preservation depositions, limiting

testimony, determining her transfer was not an adverse action, and granting

USGS’s motion for judgment as a matter of law.

                            Motion to Reopen Discovery

      Watson argues that her May 22, 1998, motion to modify the scheduling

order to extend the discovery deadline should have been granted. The original

discovery cutoff was March 31, 1998. On March 13, 1998, Watson’s original

counsel moved to withdraw. At that point, counsel had not taken any depositions.

On March 17, the magistrate court granted the motion to withdraw, and

replacement counsel entered an appearance on May 15, 1998.

      Watson requested that the scheduling order be modified to extend all of the

deadlines so she could complete discovery and prepare for trial. In denying the


                                          8
motion for modification of the scheduling order, the magistrate explained that

“[d]iscovery was completed and prior counsel for plaintiff participated in the

Pretrial Conference.”    App. I at 209. Watson did not object to the magistrate’s

order. See Fed. R. Civ. P. 72(a) (“Within 10 days after being served with a copy

of the magistrate judge's order, a party may serve and file objections to the order;

a party may not thereafter assign as error a defect in the magistrate judge's order

to which objection was not timely made.”). We lack jurisdiction over Watson’s

appeal from the magistrate’s denial of the motion to amend the scheduling order.

See Hutchinson v. Pfeil, 

, 566 (10th Cir. 1997) (holding “[p]roperly

filed objections resolved by the district court are a prerequisite to our review of a

magistrate judge’s order under 28 U.S.C. § 636(b)(1)(A)”); Moore v. United

States, 

, 659 (10th Cir. 1991) (holding failure to timely object to a

magistrate’s findings waives appellate review of factual and legal questions).

                        Motion to Take Preservation Depositions

      After the district court sua sponte moved the trial date to September 21,

1998, Watson filed a motion to take the preservation depositions of Nancy Blair

and Diane Lewis. The magistrate denied the motion. The magistrate noted that

an earlier motion to reopen discovery had been denied. As to the testimony of

Blair and Lewis, the magistrate found:




                                           9
      It is clear by the transcript of Blair she has no knowledge of
      Plaintiff’s attempt to compile the list of the library serial holdings in
      Denver. Both Blair and Lewis would testify as to their compiling of
      the lists at their respective libraries. Plaintiff has provided no case
      law how that would be relevant. The issue before the Court is not
      whether Defendant failed to give her sufficient time to carry out her
      assigned job but evidence of whether she was removed from her
      position because of her race or in retaliation.

App. II at 501-02. On November 12, Watson filed objections to the magistrate’s

ruling. The district court overruled Watson’s objections, finding the testimony of

Blair and Lewis was not relevant. Blair’s testimony from the Board hearing

showed that she had limited actual knowledge regarding Watson’s particular

project. Lewis also possessed no personal knowledge regarding Watson’s

situation, and her testimony would be cumulative to Blair’s testimony.

      A district court has the authority to reopen the record and consider new

evidence at any time before final judgment is entered.    See LaMarca v. Turner ,

, 1548 (11th Cir. 1993);     see also Fed. R. Civ. P. 59(a).

      Appellate decisions have identified several relevant factors in
      reviewing decisions concerning whether discovery should be
      reopened, including: 1) whether trial is imminent, 2) whether the
      request is opposed, 3) whether the non-moving party would be
      prejudiced, 4) whether the moving party was diligent in obtaining
      discovery within the guidelines established by the court, 5) the
      foreseeability of the need for additional discovery in light of the time
      allowed for discovery by the district court, and 6) the likelihood that
      the discovery will lead to relevant evidence.

Smith v. United States , 

, 169 (10th Cir. 1987). We discuss the six

Smith factors as they relate to Blair and then discuss the issue of Lewis’

                                            10
testimony.

       First, trial was not imminent at the time the motion was filed. The second

and third Smith factors relate to the non-moving party. USGS opposed Watson’s

motion. It does not appear, however, that USGS would be prejudiced since Blair

was listed in the pretrial order as a witness, and it was expressly contemplated

that her testimony would be offered by preservation deposition.       See Murrey v.

United States , 

, 1454 (7th Cir. 1996) (finding no prejudice where

witness listed in pretrial order);   United States ex rel Consol. Elec. Distribs., Inc.

v. Altech, Inc. , 

, 1092 (5th Cir. 1991) (allowing reopening of

discovery where witness suddenly unavailable).

       With regard to diligence in obtaining discovery within the guidelines

established by the court, depositions were scheduled for March but they did not

take place. The magistrate granted Watson’s original attorney’s motion to

withdraw on March 17. A pretrial conference was held that same day and the

court entered a final pretrial order, stating that Nancy Blair and Diane Lewis

would testify by preservation depositions. The order also stated that discovery

had not yet been completed. The order did not provide for additional time beyond

the March 31 discovery deadline. Replacement counsel entered an appearance on

May 15, 1998, and immediately moved that the scheduling order be modified.

This motion was denied. After the motion was denied, counsel “made


                                             11
arrangements with both Ms. Blair and Ms. Lewis to have them testify.” App. II at

369. As it got close to the trial date, Blair and Lewis (who were not under

subpoena) refused to testify voluntarily.   Absent a voluntary appearance by the

witness, the “sole means of presenting [such a witness’] testimony . . . is through

use of a preservation deposition.”    Odell v. Burlington N. R.R. Co.   , 

, 663 (D. Colo. 1993). Counsel was diligent in asking to take a preservation

deposition once he understood that Blair would not testify voluntarily. It

therefore appears that Watson’s original counsel was not as diligent as he should

have been, but Watson’s replacement counsel was diligent in pursuing the matter.

       The fifth factor is foreseeability of the need for additional discovery in

light of the time allowed for discovery. As discussed above, the need for these

preservation depositions was foreseen in the pretrial order. When the magistrate

simultaneously agreed that Watson could take the additional depositions and that

Watson’s counsel could withdraw, it was foreseeable that Watson might be unable

to obtain counsel within the remaining two weeks before the discovery period

ended. At that point, discovery would need to be reopened to complete the

promised depositions. Further, the court was on notice there were problems

completing discovery prior to the pretrial conference.

       The final Smith factor is the likelihood that the discovery will lead to




                                            12
relevant evidence.   3
                         It was on this ground that the magistrate and district court

rejected Watson’s request for additional discovery. The ALJ noted that he did not

find Blair’s testimony relevant. The only area in which Blair’s testimony may be

relevant is with respect to the Kardex file. Blair had redone the Denver Kardex

approximately five years prior to the Board hearing. Blair testified that the

periodical records “had not been kept up during all the years and there were kind

of non-centralized locations where serials were entered” and that there were “a lot

of miscellaneous records that were very hard to read.” App. II at 351.

      Watson’s overall argument is that she was set up to fail in this assignment

by being given a project that was too time-consuming and complex to be

completed in the allotted time. Gard testified that Watson could have relied on

the Kardex files, making this a very simple task. Nancy Greer, who testified

regarding how long this task should have taken, relied on the accuracy of the

Kardex files in making her determinations. Testimony substantiating Watson’s

claim that the Kardex files could not be relied upon to complete this assignment

would have helped to show that the project required a great deal of time and the

checking of multiple sources. Blair’s testimony somewhat impeaches the



      3
        “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Fed. R.
Evid. 401.

                                             13
reliability of the expert testimony. While there is an argument to be made that

Blair’s testimony is relevant, reasonable minds could differ. Whether the Kardex

was reliable was one factor in the issue of whether the serials list was a time-

consuming and difficult task. That issue, in turn, was part of the larger issue of

whether Watson was set up to fail. The set-up-to-fail theory is part of the larger

argument that Watson suffered racial discrimination. Considering the six factors

overall, the district court did not abuse its discretion in refusing to reopen

discovery for Blair’s preservation deposition.

      The final question is whether the district court abused its discretion in

refusing to reopen discovery so that Watson could take Lewis’ deposition.

Throughout the proceedings, Watson has conceded that Lewis’ testimony would

be essentially the same as Blair’s with respect to how to prepare a serials list.

Lewis would not have been able to testify about Watson’s assignment specifically,

nor was she familiar with the Denver Kardex. Accordingly, the district court did

not abuse its discretion.

                               Limitation of Testimony

      Isabella Hopkins gave sworn testimony at the Board hearing. Prior to trial,

Hopkins passed away. Watson asked to read Hopkins’ entire testimony into the

record, but the district court limited the portions to be presented to the jury,

rejecting certain testimony as irrelevant and as more prejudicial than probative.


                                           14
Watson argues that the court should have allowed Hopkins’s testimony regarding

Watson’s encounter with Liszewski. Hopkins testified: “And, a thing I observed

when the director of the USGS library visited us, they claimed that she had sort of

snubbed him and we were all there. I couldn’t understand what they were talking

about or how they came up with that.” App. I at 244. The district court ruled that

this testimony was hearsay within hearsay and vague. We agree. Even if it were

error, there is no explanation as to how failure to allow the statement was

prejudicial to Watson’s case.

      Watson argues that the district court should have allowed Hopkins’

testimony regarding Gard’s expression of racial prejudice. Hopkins testified that

Gard made comments about Hopkins’ family that suggested Gard harbored

prejudice against Hispanics. Hopkins also testified that Gard’s attitude appeared

prejudicial against Watson because she made comments that did not address

Watson’s abilities as an employee. The district court found the testimony to be

imprecise. We agree. The testimony regarding Hispanics does not show

prejudice against Watson. Hopkins’ description of Gard’s attitude is extremely

vague and subjective. Hopkins did not identify any racist comments made by

Gard or testify to any other specific indications that Gard was prejudiced.

      Watson argues that the district court should have admitted Hopkins’

testimony regarding Watson’s EEO complaints and retaliation. Hopkins testified


                                         15
that she complained to Harold Clayton, head of the EEO office, about the

treatment Watson received. The district court excluded this evidence because it

was unclear when the conversation took place and what exactly was said. This

exclusion was not an abuse of discretion.

      In response to a question regarding whether Hopkins observed Wagner

doing or saying anything toward Watson that was discriminatory in nature on the

basis of race, the district court excluded the follow portion of Hopkins’ reply:

      Because it was there in any action, in any thought, in anything that
      had to do with this employee. Because how could anyone do that
      under her group? You know, so it was like she had been attacked
      even though it happened before her time. And, I can’t make that
      different. Maybe that’s racial, maybe it’s not. See? But,
      theoretically, any of us who had an EEO complaint had the right to
      have the complaint and not have that held against us because it
      wouldn’t be continuing. Once it was over, it was over.

App. I at 255. The district court held that this testimony was a “diatribe by this

witness” that was unhelpful to the jury. App. IV at 1252. The testimony is vague

and non-responsive to the question. Even if the district court erred, Watson’s

case was not prejudiced by not having this evidence admitted.

                            Transfer Not Adverse Action

      In considering USGS’s motion for judgment as a matter of law, the district

court held that Watson’s transfer was not an adverse employment action. The

court held that, of the relevant events, only Watson’s termination qualified as an

adverse action for Title VII purposes.

                                          16
      The Supreme Court has explained that a “tangible employment action

constitutes a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Burlington Indus., Inc. v.

Ellerth, 

, 761 (1998). We have liberally defined the phrase “adverse

employment action.” Sanchez v. Denver Pub. Sch., 

, 532 (10th Cir.

1998). “Such actions are not simply limited to monetary losses in the form of

wages or benefits. Instead, we take a ‘case-by-case approach.’” 

will not consider “a mere inconvenience or alteration of job

responsibilities” to be adverse employment action. 

v. Liberty

Nat’l Bank & Trust Co., 

, 136 (7th Cir. 1993)).

      In Sanchez, the plaintiff was transferred from teaching fourth grade at one

school to teaching second grade at another school where she did not get along

with her supervisor. We held that the transfer was not an adverse employment

action because Sanchez’ salary and benefits remained the same, Sanchez

continued to teach at the elementary school level, and the decreasing student

population justified the transfer. The primary inconvenience that Sanchez

suffered was an increased commute. We concluded that because Sanchez

experienced “a purely lateral transfer,” there was no adverse action. 

transfer to technical services did not change her salary,


                                         17
rank, or grade. She continued to work in the same building with the same

supervisor. While her new responsibilities were different, Watson was qualified

to undertake her new duties. Watson experienced a lateral transfer that created

some inconveniences. Such a transfer does not rise to the level of adverse

employment action.

       Judgment as a Matter of Law – Racial Discrimination and Retaliation

      Following the mistrial, the district court granted USGS’s motion for

judgment as a matter of law on the racial discrimination and retaliation claims.

Watson argues that the district court impermissibly weighed the evidence and

evaluated credibility in making this ruling. As we review the issue de novo, the

question is whether “the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party's position.” 

.

      Both the race and retaliation claims are analyzed using a test first

articulated in McDonnell Douglas Corp. v. Green, 

, 802 (1973).

Under that test, the plaintiff carries the initial burden of establishing a prima facie

case. The burden may then shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection. The burden then shifts

back to the plaintiff to show that the employer’s stated reason is pretext. This

burden-shifting analysis drops away entirely once the case goes to trial. Kendrick


                                          18
v. Penske Transp. Servs. Inc., 

, 1228 n.7 (10th Cir. 2000). At that

point, it is the plaintiff’s burden to prove racial discrimination or retaliation. See

Equal Employment Opportunity Comm’n v. Flasher Co., 

, 1316

(10th Cir. 1992). Essentially, at trial the plaintiff is attempting to prove pretext.

“So long as the plaintiff has presented evidence of pretext (by demonstrating that

the defendant’s proffered non-discriminatory reason is unworthy of belief) upon

which a jury could infer discriminatory motive, the case should go to trial.

Judgments about intent are best left for trial and are within the province of the

jury.” Randle v. Aurora, 

, 453 (10th Cir. 1995).

      Watson argues she presented sufficient evidence of pretext to send the case

to a jury. USGS argues that it has presented two reasons for Watson’s

termination (failure to complete the serials list and failure to communicate

properly with her supervisors), and Watson has failed to show pretext. If there is

evidence in the record that these two reasons are unworthy of belief and that the

reasons were a pretext for discrimination, Watson is entitled to a trial.

      There is no dispute that Watson did not complete the serials list. There is

also no dispute that Watson missed several deadlines and often did not spend as

much time working on the project as she was directed. However, there is a

material dispute of fact as to whether Watson was assigned the task in order to set

her up to fail. Other circuits have recognized that pretext can be proven by


                                           19
showing that a supervisor set an employee up to fail. See, e.g., Serrano-Cruz v.

DFI Puerto Rico, Inc., 

, 26 (1st Cir. 1997); Stacks v. Southwestern

Bell Yellow Pages, Inc., 

, 1325-26 (8th Cir. 1994); Shager v. Upjohn

Co., 

, 405 (7th Cir. 1990).

      The record contains evidence that the serials list was too complex and time-

consuming to be completed in the assigned amount of time, particularly in light of

Watson’s workload and new responsibilities in technical services. Gard testified

that she was aware Watson was checking multiple sources and acknowledged that

checking multiple sources would lengthen the amount of time required. When

Watson expressed her concern to Gard about her workload, Gard allegedly

grinned and told Watson that her work plan was fair, without investigating

whether it was fair. When Watson accused Gard and Wagner of setting her up to

fail, they did not deny the accusation. After Watson’s termination, no one was

assigned to complete the serials list. Additionally, one of the primary reasons that

Watson said she was unable to complete the task was because of the new duties

and training required by her transfer to technical services. As Watson had no

particular expertise, experience, or training in the technical services area, one

could conclude that Wagner transferred Watson in order to further decrease her

ability to complete the project because the transfer would mean that Watson

would have less time available. In fact, immediately after the transfer, Gard


                                          20
increased the work required by asking that the list include the specific volumes in

the library. Further, Watson previously had been given a time period of only one

week to devise a plan to reverse the call number order of the titles, although the

project required more time. Consequently, Watson was reprimanded for failure to

complete the task on time. Based on this evidence, a jury could conclude that

Gard and Wagner assigned Watson the serials list because she would be unable to

complete it in the time allotted, creating an excuse to terminate Watson.

      According to Russ, Wagner, and Gard, Watson failed to communicate

appropriately with her superiors. Watson did not provide her superiors with as

much information about the status of her project as they wanted. In addition, she

ignored her superiors when they spoke to her or refused to look at them while

talking to them. She was warned several times about the manner in which she

communicated with her superiors. Kay Baker, a reference librarian also testified

regarding Watson’s lack of communication with her superiors. Further, Watson

was accused of behaving rudely to Liszewski.

      To some extent, Watson testified that the accusations of her failure to

communicate were inaccurate. She testified that she had not refused to perform

work and that she had told her supervisors what she needed to complete the

project. Watson denied ignoring Gard. Deborah Rowen, a coworker, testified

that Watson had not been rude to Liszewski. Some coworkers testified they did


                                         21
not notice anything inappropriate about the way Watson communicated with her

superiors. The bulk of the testimony on Watson’s lack of communication came

from Wagner and Gard, the people who purportedly were setting Watson up to

fail. Thus, a jury could conclude that those accusations were not credible even

without conflicting testimony. Even if the jury believed Watson had

communication issues with her superiors, the question is whether a jury could

believe this failure to communicate was not a credible reason for terminating

Watson. Russ was asked whether the two reasons for terminating Watson were

independent–that is, whether Watson could have been terminated for either reason

by itself. Russ responded that the failure to complete the serials list, by itself,

was a sufficient reason for termination. This answer suggests that Watson’s lack

of communication by itself would not be a sufficient reason. Because Watson has

created an issue of fact with regard to whether she communicated with her

superiors, as well as whether lack of communication was a credible grounds for

termination, a jury could conclude that the communication issues were a pretext

for termination.

      Even if the jury concluded that both of the reasons given for Watson’s

termination were pretextual, Watson would still need to show that the reasons

were a pretext for racial discrimination. See Reeves v. Sanderson Plumbing

Prods., Inc., 

, 

, 2108 (2000). “Proof that the


                                           22
defendant’s explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination, and it may

be quite persuasive.” Id.; see also Flasher 

(“Of course, the

plaintiff may argue that irrational or unexplained differential treatment is secretly

motivated by illegal discrimination, and if the plaintiff persuades the fact finder

of that, the plaintiff will satisfy that portion of his or her burden of proof in a

Title VII disparate treatment claim.”).

      Watson presented evidence that she was the only black person working at

the library and that she suffered disparate treatment. Watson was pressured to

join an ethnic minority committee. She was given unfavorable tasks such as

weeding out pamphlets and reshelving books. Previously, all of the librarians

were responsible for reshelving, and after Watson was terminated all of the

librarians were again responsible for reshelving. Watson was given two

assignments with unrealistic completion dates, while her coworkers were not

assigned such allegedly complex and time-consuming additional tasks to perform.

Watson was required to document her medical leave while other employees were

not. Watson was reprimanded for not following the proper procedure for

applying for leave. Other employees who did not follow the proper procedure

were not reprimanded. Watson was not permitted to speak with librarians at

library headquarters while other librarians were permitted to do so. Only Watson


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was required to keep a log of her work hours. Watson’s comments were not

acceptable to Wagner and Gard while other employee’s comments, even if

substantively the same as Watson’s, were acceptable. Rowen testified that she

perceived that Watson was treated differently than other employees and believed

that it was because of Watson’s race.

      Further, Watson’s treatment upon her transfer to the Bureau of Mines

library was unusually harsh. Watson was banned from the USGS library. When

Watson entered the USGS library to do work for her new job, Wagner yelled at

Watson to leave before she called the Federal Protective Service. No one

explained to Watson why she was not permitted to use the USGS library, and no

one else was banned from the library. Watson subsequently received a memo

from Wagner saying that if Watson came to the USGS library, Wagner would call

Federal Protective Services to remove Watson.

      USGS argues that Watson is unable to prove pretext because the final

decision to terminate her was made by Russ and there is no evidence of

discriminatory animus or disparate treatment by him. There is no dispute that

Russ was an unbiased decision-maker who conducted an independent

investigation into the issues surrounding Watson’s termination. In McCue v.

Kansas Department of Human Resources, 

(10th Cir. 1999), we

affirmed a district court’s rejection of the argument that “intent [for purposes of a


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Title VII retaliation claim] must reside in the entity with final termination

authority.” 

(alteration in original). The district court had also noted

that “were the premise true, the resulting law would be unreasonable –

‘reward[ing] deceitfulness by insulating an organization from liability for

retaliatory discharge where the decision-maker is kept ignorant of its

subordinates’ scheme.’” 

original). We went on to conclude that,

in Title VII cases, agency principles control liability. See id.; but see Kendrick,

. Based on this precedent, the independent investigation by Russ

does not shield USGS from liability for the actions of its agents, Wagner and

Gard.

        To prevail on a retaliation claim, Watson needs to show a causal connection

between her protected activities of filing EEO complaints and the adverse actions

taken against her. See Bullington v. United Air Lines, Inc., 

, 1320

(10th Cir. 1999). As discussed above, the only adverse action at issue is

Watson’s termination. Watson filed five EEO complaints. Testimony established

that Gard was aware of the 1993 complaint and the May 1995 complaint. Wagner

was vaguely aware of the 1993 complaint and was aware of the May 1995

complaint. Wagner proposed that Watson be terminated in February 1996, and

the termination was effective in April 1996. There is no evidence that there was a

relationship between the EEO complaints and Watson’s termination. There was a


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significant time lapse between those EEO complaints of which Gard and Wagner

were aware and Watson’s termination. See 

(remoteness in time undercuts inference of retaliatory motive). There is no

substantive testimony showing that Gard and Wagner sought to retaliate against

Watson. The only testimony on the subject was from Hopkins, but that testimony

was speculative. Hopkins did not articulate a basis for her belief that Wagner was

retaliating for the EEO complaints. Watson’s theory, that she was set up to fail in

being given the serials list assignment, is problematic because that assignment

preceded most of her EEO complaints. The only complaint prior to that

assignment was in September 1993, more than a year prior to her receiving the

assignment. In addition, Wagner was not employed by USGS at that time.

                                         IV.

         We AFFIRM the district court’s decisions denying the reopening of

discovery, denying preservation depositions, limiting testimony, and determining

Watson’s transfer was not an adverse action, and the court’s dismissal of

Watson’s retaliation claim. We REVERSE the court’s dismissal of Watson’s

claim for racial discrimination and REMAND for further proceedings on that

issue.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge

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