                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 14 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PENNY N. DOOLIN,

                Plaintiff-Appellant,

    v.                                                   No. 99-1492
                                                      (D.C. No. 98-S-35)
    MOFFAT COUNTY, BOARD OF                               (D. Colo.)
    COUNTY COMMISSIONERS,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Penny N. Doolin appeals the district court’s entry of summary

judgment in favor of the Board of County Commissioners for Moffat County,

Colorado, on her claim brought pursuant to the Equal Pay Act, 29 U.S.C.

§ 206(d). Because plaintiff has not raised a material factual dispute whether her

position was substantially similar to that of her male coworkers, we affirm.

      Since February 1989, plaintiff has been the maintenance supervisor for the

Shadow Mountain recreational facility in Moffat County, Colorado. Her duties

include maintaining the pool, hot tubs, building, and approximately one acre of

grounds, with basketball and volleyball courts and a playground; administering

the budget; and supervising two part-time lifeguards.

      Steve Grandbouche, the Parks and Recreation Superintendent for Moffat

County, is currently plaintiff’s supervisor. Grandbouche’s administrative duties

include attending department head meetings; planning a budget for overall Parks

and Recreation operations and for capital outlay and improvements for the

Sherman Youth Camp and the 360-acre Loudy-Simpson recreational facility; and

managing contractors for Parks and Recreation construction and repair projects.

He is also responsible for the maintenance of the Youth Camp and for the Loudy-

Simpson facility, which includes an ice rink, four baseball fields, picnic facilities,

a playground, a gun range, nature trails, and concession stands. Grandbouche




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supervises three full-time employees, including plaintiff, and three seasonal

employees.

       Bill Sixkiller is the Moffat County Fairgrounds Manager. He is responsible

for scheduling and expediting events at the fairgrounds, including an annual

county fair, rodeos, and events at the pavilion, which accommodates

approximately 500 people and which is rented over 300 days a year. Sixkiller is

also responsible for maintaining the 40-acre grounds and buildings, including the

pavilion, grandstands, a roping arena, barn, and racetrack; maintaining all

equipment and machinery; and using heavy equipment such as a grader,

snowplow, dump truck, and front-end loader.

       Plaintiff brought an action against the County, alleging her work was equal

to that of her male coworkers, but that she was paid significantly less because of

her gender. Defendant moved for summary judgment on the Equal Pay Act claim,

arguing there was no genuine factual dispute whether plaintiff performed

substantially equal work to that of Grandbouche and Sixkiller, and that the three

did not work in the same “establishment.” The district court granted summary

judgment on both these grounds.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”   Charter Canyon

Treatment Ctr. v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). A district


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court properly grants summary judgment if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The existence of a “scintilla of evidence” in favor of the

nonmoving party is not enough to create a genuine issue of material fact.

Anderson v. Liberty Lobby, Inc.   , 477 U.S. 242, 252 (1986).

      The Equal Pay Act, 29 U.S.C. § 206(d)(1), requires equal pay to both men

and women “for equal work on jobs the performance of which requires equal

skill, effort, and responsibility, and which are performed under similar working

conditions.” In support of its summary judgment motion, defendant submitted

affidavits by Grandbouche and Sixkiller, plaintiff’s deposition testimony, and the

County’s written job descriptions. This evidence demonstrates significant

differences in the size and scope of the recreational facilities maintained by the

three employees, and in the extent of their responsibilities. Plaintiff responded

with an affidavit describing the similarities between her job and those of

Grandbouche and Sixkiller. The comparisons were drawn broadly, i.e., all three

employees supervise recreational facilities, maintain grounds, and interact with

the public. See Appellant’s App. at 109-11. She did not contest the distinctions

between the positions as identified by defendant.

      Plaintiff argues that she demonstrated a factual dispute whether her

“primary duties” are the same as those performed by Grandbouche and Sixkiller.


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See Appellant’s Br. at 10-13. The conclusory allegations in plaintiff’s affidavit

do not raise such an issue, however. Although plaintiff may have shown that her

duties are similar to those performed by the two men, she has not raised a genuine

issue whether their positions are “equal” in terms of skill, effort, responsibility,

and working conditions, and the undisputed evidence shows that they are not.

See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1364-65 (10th Cir. 1997)

(noting Equal Pay Act is not violated by failing to furnish equal pay for

“comparable work,” or “like jobs,” and holding evidence showed only that

plaintiff’s job functions were comparable to male assistant managers) (quotations

omitted). Therefore, summary judgment was appropriate on this issue, and we

need not consider whether the employees work in the same establishment.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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