Antoinette B. Stoufflet, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 7, 2005
01a54285 (E.E.O.C. Nov. 7, 2005)

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