01a54285
11-07-2005
Antoinette B. Stoufflet, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Antoinette B. Stoufflet v. Department of the Navy
01A54285
November 7, 2005
.
Antoinette B. Stoufflet,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54285
Agency No. 05-190
Hearing No. 270-2004-00138X
DECISION
JURISDICTION
On June 6, 2005, complainant filed an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. On appeal, complainant requests that the Commission reverse the
agency's acceptance and implementation of an EEOC Administrative Judge's
(AJ) finding of no discrimination. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Technical Specialist at the agency's Space and Naval Warfare Information
Technology Center in New Orleans, Louisiana. Complainant stated that
a co-worker (C1) (female) sexually harassed her. Specifically, C1 told
her at dinner one night while on a business trip that she could, �really
go for a one-night stand� to which she did not respond. Complainant
stated that her fianc� worked at the agency and after the incident,
C1 became unable to work with either of them. Complainant contended
that she invited her colleagues to her wedding and C1 congratulated
her by kissing her on the cheek, hugging her and briefly grabbing her
buttocks. After her honeymoon, complainant asserted that C1 engaged in
outbursts of rage toward her and created a violent workplace environment.
She stated that she reported C1's sexual harassment to the agency and
it was ignored.
The record reveals that complainant tested positive for marijuana use
on December 19, 2002. Complainant's supervisor (male) stated that he
was notified of complainant's allegations of sexual harassment by C1 on
January 6, 2003, during a meeting regarding the results of complainant's
urinalysis. As a result of the meeting, he ordered an investigation
into complainant's allegations. He stated that there were no witnesses
to corroborate complainant's allegations and the investigation failed
to substantiate complainant's claims of sexual harassment. He stated
that he was aware of problems between complainant and C1 but that there
had never been any mention of sexual harassment prior to the January 6,
2003, meeting.
Complainant's team leader (male) stated that complainant never made any
claims of sexual harassment before she tested positive for marijuana use.
He stated that complainant complained about C1's behavior and hygiene
but never about sexual harassment. The investigator (male) of the sexual
harassment claims stated that he spoke with complainant's team leader and
a male co-worker regarding her claims. He stated that neither observed
any sexual harassment by C1 toward complainant. C1 stated that she did
not sexually harass complainant.
Complainant stated that she was moved to another position because of
her prior EEO activity and supporting the EEO activity of her husband.
Complainant's supervisor stated that complainant was moved to another
floor because of her use of marijuana and as a secondary reason,
her inability to get along with C1. He contended that, because of her
violating the agency policy against drug use, she was not allowed to work
in the sensitive area which contained materials classified as secret.
A Management Analyst (female) stated that complainant's position was
not identified for potential abolishment under a Commercial Activities
(CA) study. She stated that she has working knowledge of the CA study
and that complainant's office was exempt from the study.
After an apparent nervous breakdown on February 19, 2003, complainant
left work and never returned. On March 30, 2003, complainant signed a
separation agreement which retired her from the agency with a $25,000.00
lump sum payment.
On February 7, 2003, complainant contacted an EEO counselor and filed
a formal complaint of discrimination on March 21, 2003, alleging that
the agency discriminated against her on the basis of sex (female) when:
(1) from August 2002 through February 2003, she was subjected to
a hostile work environment for rejecting the sexual advances of a
co-worker.
Complainant further alleged that she was retaliated against when:
she was moved from a secure work area to another work area on the fifth
floor; and,
her position was identified for potential abolishment by the CA study..
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a bench
decision finding no discrimination on the bases of sex or in reprisal
for previous EEO activity.
In his decision, the AJ found C1, the team leader, the investigator and
complainant's supervisor to be highly credible. The AJ concluded that
complainant fail to establish that C1 sexually harassed her. The AJ found
that the one instance of C1 discussing a one-night stand with complainant
could not be described as severe sexual harassment. Further, the AJ found
that C1 was not complainant's supervisor or a manager and complainant did
not notify the agency of the alleged sexual harassment prior to January
6, 2003. Under these circumstances, the AJ found that the agency took
appropriate action after notification of alleged sexual harassment.
The AJ found that, since complainant tested positive for marijuana, the
agency articulated legitimate reasons for transferring complainant away
from sensitive or secret materials and she was unable to demonstrate
reprisal.
The AJ found that complainant's position was not slated for abolition
under the CA study. The AJ found highly credible the testimony of
the Management Analyst who stated that complainant's position was not
identified for potential abolishment under the CA study as she alleged.
With respect to complainant's claim of reprisal, the AJ found that there
was no evidence to show any retaliation on the part of the agency for
her EEO activity or her support of the EEO activity of her husband.
During the hearing, complainant raised the issue of constructive
discharge. The AJ found that complainant had failed to raise this issue
to an EEO counselor within 45-days and dismissed the claim as untimely.
The AJ concluded that complainant failed to sustain her burden of
proof and entered judgement for the agency. The agency's final order
implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Further, complainant contends that the AJ incorrectly found the agency
witnesses to be credible. Specifically, complainant contends that the
team leader and her supervisor could not recall being told about C1's
comment about the one-night stand which does not mean it did not occur.
Complainant further raises the issue of constructive discharge stating
that she was forced out of her position. The agency makes no contentions
on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Concerning issue (1), complainant has raised the issue of a hostile work
environment based upon her sex. It is well-settled that sexual harassment
in the workplace constitutes an actionable form of sex discrimination
under Title VII. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a prima facie case of sexual harassment,
the complainant must prove, by a preponderance of the evidence, the
existence of five elements: (1) that she is a member of a statutorily
protected class; (2) that she was subjected to unwelcome conduct related
to her sex; (3) that the harassment complained of was based on her
sex; (4) that the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d 897, 903 (11th Cir. 1982). The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Here, we find that the complainant failed to established a prima facie
case of sexual harassment. The AJ found complainant's supervisor, C1 and
the investigator to be credible and the supervisor stated that he was not
notified of complainant's allegations of sexual harassment by C1 until
January 6, 2003. He further stated that he ordered an investigation
into the allegations at that time. The investigator stated that he
was requested by complainant's supervisor to investigate the allegations
shortly after the January 6, 2003, meeting. The investigator investigated
the allegations by interviewing the parties involved in the incident
and could not find anyone that could substantiate complainant's claims.
C1 denied complainant's allegations of sexual harassment. We find that
complainant has fail to impute liability to the agency for the alleged
sexual harassment by C1.
Issues (2) and (3) concern reprisal. Complainant can establish a
prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
With respect to issue (2), we find that complainant has failed to
establish a prima facie of reprisal because she did not show that there
was any nexus between her prior protected activity and the adverse
action taken against her. Complainant admitted to the use of marijuana
and failed to cite any other employee who had continued to work in the
sensitive work area after testing positive for marijuana use. Further,
she has not presented any evidence which, if unrebutted, would support
an inference that the agency's actions resulted from retaliation.
Concerning issue (3), we find that the AJ correctly found that
complainant's position was not identified for abolishment under the
CA study. The AJ found the Management Analyst's testimony, that
complainant's position was not identified for abolishment because her
office was not part of the study, was highly credible. We find that
complainant failed to establish a prima facie case of reprisal because
she failed to establish that she was subjected to an adverse action as
a result of the CA study.
Complainant's contention that she was subjected to a constructive
discharge was correctly dismissed by the AJ for being untimely.
It appears that complainant initially raised the issue of constructive
discharge at the hearing on March 15, 2005, and complainant had resigned
on March 20, 2003. On appeal, complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact or for filing her claim regarding
constructive discharge. Accordingly, the we affirm the dismissal of
her constructive discharge claim.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We conclude that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's sex.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 7, 2005
__________________
Date