Ike v. United States Department of Veterans Affairs
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 12/6/2016. (AVC)
2016 Dec-06 PM 02:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DEPARTMENT OF VETERANS
Case No.: 2:16-cv-0406-JEO
This is a sexual harassment case. Plaintiff Harrika Ike brings claims against
her employer, the United States Department of Veterans Affairs (the “VA”), under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;
the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d)(1); and Alabama tort law. (Doc.1
1 (“Complaint” or “Compl.”)). The VA has moved to dismiss the Complaint for
failure to state a claim, pursuant to FED. R. CIV. P. 12(b)(6). (Doc. 11). Upon
consideration, the court2 concludes that the motion is due to be granted.
Citations to “Doc(s). ___” are to the document numbers of the pleadings, motions, and
other materials in the court file, as compiled and enumerated on the docket sheet by the Clerk.
Pinpoint citations are to the page of the electronically filed document in the court’s CM/ECF
system, which may not correspond to the pagination on the original “hard copy” of the document
presented for filing.
This action was assigned to the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636 and the court’s general order of reference dated January 1, 2015. The parties
The salient allegations of the Complaint are as follows: Plaintiff is female.
At all times relevant, she was employed by the VA as a Medical Support Assistant
at the VA Medical Center in Birmingham. (Compl. ¶ 3). Plaintiff asserts that
between October 2012 and March 2015 she was sexually harassed by a male coemployee, Jonathan Troupe, another Medical Support Assistant who worked with
her in the cardiology department on the sixth floor of the VA facility. (Id. ¶ 7).
Troupe’s alleged harassment included:
showing Plaintiff graphic pornographic photos on his cell
showing Plaintiff photos of a v----a;
stating to Plaintiff, “I wonder how good you could suck my
repeatedly talking to Plaintiff about “f---ing a doctor”;
repeatedly playing sexually explicit music in front of Plaintiff;
asking Plaintiff if she had oral sex with her husband;
repeatedly making “sexual noises” into his phone when he
knew Plaintiff could hear him;
telling Plaintiff, “My p---s is hard, I’m horny”;
have consented to an exercise of plenary jurisdiction by a magistrate judge pursuant to 28 U.S.C.
§ 636(c) and LR 73.2. (Doc. 13).
commenting to Plaintiff that in order to eat a grapefruit, one
must “eat it like a p---y”;
telling Plaintiff on more than one occasion that he “had p---y
for lunch”; and
telling Plaintiff on numerous occasions that he had masturbated
in the bathroom at work.
Plaintiff alleges that, on one or more unspecified occasions, she “verbally
reported the sexual harassment to her supervisors,” but it continued. (Id. ¶ 6). She
further says that she “filed an EEO [Equal Employment Opportunity] internal
complaint with the Defendant on July 24, 2013.” (Id.) The VA purportedly took
no action, however, until January 2014, when it reassigned Troupe to another
department on the seventh floor, one above where Plaintiff continued to work.
(Id.) Plaintiff alleges, however, that she “continued to see Mr. Troupe on a daily
basis, as he would come to her floor,” and her duties regularly required her to go
to his floor. (Id.) The stress from the situation, she says, caused her to become
suicidal and required her to leave her job for extended periods of time during
2014, 2015, and 2016, to seek mental health treatment. (Compl. ¶¶ 9, 11).
On March 9, 2016, Plaintiff filed this action, naming the VA as the sole
defendant. She raises claims under Title VII, alleging that she was subjected to
sexual harassment and a hostile work environment. (Compl., Counts I & III). She
also raises a federal-law claim under the EPA. (Id., Count II). Finally, Plaintiff
raises tort claims under Alabama state law for “outrage,” negligence, and
wantonness. (Id., Counts, IV, V, and VI, respectively).
The VA has moved to dismiss the Complaint for failure to state a claim
upon which relief can be granted. (Doc. 11). First, the VA maintains that
Plaintiff’s state-law claims are all “preempted by Title VII and should be
dismissed with prejudice.” (Id. at 5-6). Next, the VA contends Plaintiff has failed
to state a cognizable claim under the EPA. (Id. at 7-9). Finally, the VA maintains
in its lengthiest argument that the Title VII claims are due to be dismissed for
failure to timely exhaust administrative remedies. (Id. at 10-20). The VA also
contends that, to the extent that Plaintiff suggests that she suffered harassment
after the VA took corrective action against Troupe, her allegations fail to state a
cognizable claim under Title VII. (Id. at 20-21; see also Doc. 25 at 5-6).
In support of its arguments related to Plaintiff’s Title VII cause of action,
the VA has filed an evidentiary submission. (Docs. 11-1 through 11-8). It is
comprised of documents generated in connection with a pre-suit EEO
investigation into Plaintiff’s complaints of sexual harassment, including a 75-page
transcript of an interview that Plaintiff gave under oath to an EEO investigator on
October 1, 2015, in the presence of her attorney, Richard Horsley. (Doc. 11-3,
Interview of Plaintiff (“Pl. Int.”)). Based on that interview and other exhibits, the
VA has proffered a timeline of events (Doc. 11 at 12), the material factual
accuracy of which Plaintiff has not disputed for present purposes. (See Doc. 16 at
2-3). In response, the court offered Plaintiff an opportunity to submit additional
evidence and argument relating to the issues raised by the VA. (Doc. 21).
Plaintiff accepted that invitation. (See Docs. 22, 23). The VA has also filed reply
briefs in support of its motion to dismiss. (Docs. 18, 25).
In her EEO interview Plaintiff alleged that Troupe began making repeated,
sexually explicit and otherwise harassing remarks to Plaintiff and in her presence
in about July 2012. (Pl. Int. at 183). That harassment continued, she said, until she
took maternity leave for three months starting in February 2013. (Id. at 11; Doc.
11-8 at 3). When she returned in May 2013, however, Troupe’s harassment
resumed. (Pl. Int. at 11; Doc. 11-8 at 3). The VA’s materials further establish that
Plaintiff’s first report about Troupe’s sexual harassment were verbal complaints on
July 24, 2013, made to her agency supervisor, Nurse Manager Brenda Mostella,
and to Mostella’s supervisor, Marie Todd. (Pl. Int. at 20; Doc. 11-4, Interview of
Citations to “Pl. Int. at ___” are to the page of the transcript, not the electronically-filed
Brenda Mostella (“Mostella Int.”) at 5-6, 10-13; Doc. 11-5 at 3; Doc. 11-9 at 48).
At that time, Plaintiff also completed VA Form 119, captioned, “Report of
Contact,” detailing her allegations of Troupe’s sexual harassment. (Doc. 11-5;
Doc. 23 at 3-4)4. She says that she gave that form to Mostella, who, in turn,
forwarded it to the human resources department. (Doc. 11-9 at 48; see also
Mostella Int. at 5-6, 24-25).
Plaintiff claims that after reporting the sexual harassment to Mostella,
Troupe approached her later that same day. (Pl. Int. at 17). At that time, she says,
he was “so upset” and asked her, “Did y’all have an issue with me?” (Id.)
Plaintiff did not answer. (Id.) He finally told her that if she had “any problems
with [him],” she “need[ed] to come to [him] and not run ... to the manager.” (Id.)
This caused Plaintiff to become distraught and leave work. (Id.)
Notwithstanding Plaintiff’s allegation in her Complaint that the VA took no
action in response to her July 24, 2013, sexual harassment complaint until January
2014, Plaintiff now admits that such is, in fact, not what occurred. Rather, it is
undisputed that on July 25, 2013, the very next day after Plaintiff complained, the
VA responded by permanently transferring Troupe to another department on the
A copy of Plaintiff’s completed “Report of Contact” form has been filed by each side, by
the VA as Doc. 11-5 and by Plaintiff as Doc. 23 at 3-4. While both are legible, the latter is the
floor above where Plaintiff worked. (Pl. Int. at 15, 20; Doc. 11-6; Doc. 11-9 at 48;
Doc. 16 at 2-3; Doc. 22 at 1-2). Also on July 25, 2013, the VA sent Troupe a
memo detailing Plaintiff’s claim against him and notifying him that his alleged
conduct would violate the VA Medical Center’s sexual harassment policy. (Doc.
11-7). He was further warned that any similar incidents in the future would “not
be tolerated” and could result in his “immediate termination” and that his
“interaction with [Plaintiff] should be for business purposes only and conducted in
a professional manner” (Id.) Finally, Troupe was made to attend sexual
harassment prevention “refresher training.” (Id.; Mostella Int. at 25). That
training was administered in a one-on-one session on July 29, 2013, by the
agency’s EEO Program Manager, Rick DeFilippo, who had been contacted by
Mostella “and/or” the agency human resources department about Plaintiff’s
complaint. (Doc. 11-9 at 2-4, Declaration of DeFilippo (“DeFilippo Decl.”) ¶ 6).
DeFilippo expressly denies, however, that he had up to that time ever been
contacted by Plaintiff about Troupe’s sexual harassment. (DeFilippo Decl. ¶ 6).
Plaintiff also now admits that once Troupe was reassigned, he ceased
subjecting her to any comments or conduct of a sexual nature. (See Doc. 16 at 3
(“[T]he sexual harassment stopped when [Troupe] was moved to a different
floor”); Pl. Int. at 15-16). Indeed, not only does Plaintiff not claim he made any
further inappropriate remarks or statements, her testimony suggests that they never
spoke again. However, Plaintiff complained in her EEO interview that she felt she
was still being harassed in that she was being required, as a practical matter, to see
Troupe on a daily basis because she had to go to his floor to perform certain work
duties. (Pl. Int. at 15-16, 20). She also says that, on occasions when she would
see him, “he would make faces at [her]” and “would look at [her] certain ways,” or
“he would walk by and whistle.” (Pl. Int. 15). In addition, Plaintiff recounts a
particular episode in which, during a training class of medical support assistants in
February 2015, Troupe sat “right in front of [her]” and “stared at [her] with a mean
look.” (Id. at 38, 43; see also Doc. 11-9 at 54).
In November 2013, Plaintiff called the agency EEO Program Manager,
DeFilippo, telling him that she wanted to file a complaint for sexual harassment.
(Pl. Int. at 12, 63; DeFilippo Decl. ¶ 7). He told Plaintiff to send him an email,
which she did, on November 25, 2013. (Pl. Int. at 12-13, 63; Doc. 11-9 at 47-48;
DeFilippo Decl. ¶ 7). In memo attached to that email, Plaintiff related the
I filed a sexual harassment case against Jonathan Troupe on
Wednesday, July 24, 2013. I reported this case to my immediate
supervisor, Brenda Mostella RN, and Marie Todd RN who is
Brenda’s supervisor. Both supervisors were very concerned and
willing to take immediate action. My Point of Contact report was
given to Brenda Mostella the very next day, July 25, 2013. Mrs.
Mostella immediately forwarded my report to Human Resources and
as a result, Jonathan was relocated to another floor. Since that date,
July 24, 2013, I have not heard nor been advised of anything
concerning this case.
(Doc. 11-9 at 48). Plaintiff’s memorandum further indicated that she was not
satisfied with the VA’s response to her sexual harassment complaint and that she
considered the situation “unresolved.” (Id.; see also Pl. Int. at 39). That was so,
she stressed, because Troupe had been back to her work area “a few times,”
ostensibly to use the copier, though Plaintiff was “sure” he had a machine in his
own department. (Doc. 11-9 at 48). Plaintiff complained that she had reported
“that incident about two months ago to Human Resources” but had yet to receive a
response. (Id.) She further averred that Troupe “gives [her] an angry look if [she]
pass[es] him in the hallway” and that he had “also given the same angry look to
[her] husband,” causing her to “worr[y] that some words might be exchanged
between [Troupe and her husband].” (Id.) Finally, she explained that “still
see[ing Troupe] ... ma[de her] nervous” and was “caus[ing] panic attacks and even
nightmares,” requiring her to be “under the care of a therapist and psychiatrist”
and to take “two forms of anxiety medications along with an antidepressant.” (Id.)
In addition to her Memorandum, Plaintiff attached to her email a copy of the
“Report of Contact” form she said she had completed and given to Mostella on or
about July 24, 2013. (DeFilippo Decl. ¶ 7).
In response to her email, DeFilippo contacted Plaintiff’s supervisors the
next day, asking that they discuss generally with Plaintiff the corrective action that
had been taken against Troupe. (DeFilippo Decl. ¶ 8; Doc. 11-9 at 50). To that
end, it appears that Mostella did speak with Plaintiff during this period, telling her,
in essence, that the VA considered its response to have been appropriate and that
no additional measures were contemplated. (Pl. Int. at 15, 21; Doc. 11-9 at 50).
DeFilippo scheduled a follow-up meeting to discuss the situation with Plaintiff
and Mostella at the end of January 2014, but it was postponed due to a snow
storm. (Pl. Int. at 13; Doc. 23 at 8); see also DeFilippo Decl. ¶ 8). There was an
attempt to reschedule the meeting for early February 2014, but it was again
scuttled because Mostella said she had to attend an out-of-town training class. (Pl.
Int. at 13; Doc. 23 at 8); see also DeFilippo Decl. ¶ 8).
On February 27, 2014, Plaintiff’s physician recommended that Plaintiff take
a medical leave of absence due to severe anxiety, depression, and post-traumatic
stress disorder (“PTSD”), allegedly caused by Troupe’s sexual harassment and by
her continuing to see him at work. (Doc. 11-8 at 2; Doc. 23 at 7). On that same
date, Plaintiff began a medical leave that lasted approximately seven months.
(Doc. 11-8 at 2; Doc. 23 at 7). When she returned in September 2014, however,
Troupe was still assigned to the floor above her, and Plaintiff claims she continued
to see him on a daily basis as before. (Doc. 23 at 7).
On February 27, 2015, Plaintiff sent DeFilippo another email, which she
characterized as “as a formal complaint” regarding her sexual harassment case
involving Troupe. (Doc. 11-9 at 54; see also DeFilippo Decl. ¶ 11). She there
complained, “Since I’ve returned to work [in September 2014 following a medical
leave], I have seen [Troupe] numerous times and each time I see him I begin to
panic.” (Doc. 11-9 at 54). Plaintiff also referenced the aforementioned episode
from February 2015, in which “[Troupe] came in and sat directly across from
[her]” at a meeting of medical support assistants. (Id.) As a result of seeing him
there, she said, she left the meeting and had “an aggressive panic attack” for which
she was hospitalized from February 19-22, 2015. (Id.) She reiterated that
“continuing to have to see him” made her “very uncomfortable” and that her
“health [was being] jeopardized.” (Id.) She concluded by asking DeFilippo to
notify her of any other steps she needed to take. (Id.)
On March 2, 2015, DeFilippo responded with an email telling Plaintiff that
if she wanted to file an EEO complaint about the matter she would need to contact
the agency’s Office of Resolution Management (“ORM”). (Doc. 11-9 at 54;
DeFilippo Decl. ¶ 11). The next day, Plaintiff called an EEO Counselor with the
ORM, Grallin Butler, who interviewed her on March 4, 2015. (Doc. 11-8 at 2-4).
The parties thereafter agreed to submit Plaintiff’s claim to alternative dispute
resolution (“ADR”). (Id.) Meanwhile, sometime in March 2015, Troupe left the
VA to take a job with the Social Security Administration, whereupon he and
Plaintiff no longer came into contact. (Doc. 23 at 7; Pl. Int. 31; Mostella Int. at
23). On April 15, 2015, the parties participated in the ADR session, but it did not
bear any fruit. (Doc. 11-8 at 4).
On April 17, 2015, EEO Counselor Butler completed his final report and
gave Plaintiff written notice of her right to file a discrimination complaint with the
agency. (Doc. 11-8 at 4). On April 28, 2015, she completed and submitted VA
Form 4939, captioned, “Complaint of Employment Discrimination.” (Doc. 23 at
6-9). There, Plaintiff demanded “lost wages” and “compensation for mental
anguish” allegedly caused by Troupe’s sexual harassment and being required to
see him following his transfer to the seventh floor. (Id.) In addition, Plaintiff
claimed that she “first reported [Troupe’s sexually harassing] conduct to Mr. Rick
DeFilippo on July 24, 2013,” whom Plaintiff identified as her “supervisor.” (Id. at
6, 7). “On that date,” Plaintiff alleged, “I filed an in-house EEO complaint, which
DeFilippo never forwarded to any other office.” (Id. at 7). DeFilippo, by contrast,
denies ever being Plaintiff’s “supervisor” (DeFilippo Decl. ¶ 6) or that she
contacted him about her sexual harassment claim until November 2013. (Id. ¶ 7).
Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE authorizes a
motion to dismiss a complaint on the ground that its allegations fail to state a
claim upon which relief can be granted. Such a motion tests only the sufficiency
of the claim set out in the plaintiff’s pleadings. Harris v. Proctor & Gamble
Cellulose Co., 73 F.3d 321, 324 (11th Cir. 1996). Thus, the “‘issue is not whether
a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.’” Little v. City of North Miami, 805 F.2d 962, 965
(11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)). Faced
with a Rule 12(b)(6) motion, the court is ordinarily limited to considering the
complaint itself and must assume that its allegations are true and give the plaintiff
the benefit of all reasonable factual inferences. Hazewood v. Foundation
Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam).
Generally speaking, if the court considers evidentiary materials beyond the
complaint in connection with a motion to dismiss under Rule 12(b)(6), the motion
must be treated as one for summary judgment under Rule 56, FED. R. CIV. P. See
Rule 12(d), FED. R. CIV. P.; Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1054
n. 12 (11th Cir. 2015).
The VA has also moved pursuant to Rule 12(b)(6) to dismiss Plaintiff’s
Title VII cause of action, on the ground that she allegedly failed to timely exhaust
administrative remedies. Such a motion is appropriately considered under Rule
12(b) rather than under Rule 56 despite the court’s consideration of materials
beyond the complaint, and, should it become necessary, the court itself is
authorized to resolve disputed issues of fact relevant to the defense but not going
to the merits of the claims. See Bryant v. Rich, 530 F.3d 1368, 1374-77 (11th Cir.
2008); Brady v. Postmaster Gen., U.S. Postal Serv., 521 F. App’x 914, 916-17
(11th Cir. 2013); Tillery v. United States Dep’t of Homeland Sec., 402 F. App’x
421, 424-26 (11th Cir. 2010). However, district courts are generally required to
employ a procedure akin to that used at summary judgment insofar as the
non-movant must be afforded notice and a reasonable opportunity to develop the
record as it relates to circumstances relevant to the administrative exhaustion
defense. See Bryant, 530 F.3d at 1276 & n. 14.
Equal Pay Act Claim and State-Law Claims
The VA moves to dismiss Plaintiff’s EPA claim (Count II) and her state-law
claims for “outrage,” negligence, and wantonness (Counts IV, V, & VI) under
Rule 12(b)(6). In response, Plaintiff concedes that those claims are due to be
dismissed. (Doc. 16 at 2). And so shall they be, with prejudice. With that, the
court proceeds to consider the VA’s motion as it relates to Plaintiff’s only other
claims, which arise under Title VII.
Title VII Claims
Title VII provides in relevant part that “all personnel actions affecting”
enumerated federal employees “shall be made free from any discrimination based
on ... sex.” 42 U.S.C. § 2000e-16(a). This statute, which applies to the VA, see
e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990); Trask v.
Secretary, Dep’t of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016), expanded
Title VII coverage to federal employees to the same extent as it was applicable to
non-federal employees. See Putman v. Secretary, Dep’t of Veterans Affairs, 510
F. App’x 827, 829 (11th Cir. 2013) (citing Llampallas v. Mini–Circuits, Lab, Inc.,
163 F.3d 1236, 1243 (11th Cir. 1998)).
Actionable employment discrimination under § 2000e-16(a) may include
subjecting an employee to sexual harassment that is so severe or pervasive that it
alters the terms and conditions of employment and creates a hostile work
environment. See Trask, 822 F.3d at 1195; see also Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 66-68 (1986) (recognizing the viability of a sexually hostile
work environment claim under 42 U.S.C. § 2000e-2(a), the analogous Title VII
provision applicable to non-federal employers). To make out such a hostile
environment claim, a plaintiff must demonstrate the following:
(1) he or she belonged to a protected group, (2) he or she was
subjected to unwelcome harassment, (3) the harassment was based on
[sex], (4) the harassment was sufficiently severe or pervasive to alter
the terms and conditions of his or her employment and create an
abusive working environment, and (5) a basis exists for holding the
Trask, 822 F.3d at 1195 (citing Gupta v. Florida Bd. of Regents, 212 F.3d 571,
582 (11th Cir. 2000)). The fourth element above contains both an objective and a
subjective component. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999) (en banc). That is, the “environment must be one that ‘a reasonable person
would find hostile or abusive’ and that ‘the victim ... subjectively perceive[s] ... to
be abusive.’ ” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)). Furthermore, “the objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s position, considering
‘all the circumstances.’ ” Id. (quoting Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at 23)).
As a threshold matter, the court notes that Plaintiff has pled her Title VII
cause of action in two separate counts. The first is described more generically as a
claim under “Title VII of the Civil Rights Act” based on “sexual harassment.”
(Compl. Count I). The other count is captioned as a claim for a “Hostile Work
Environment Violation of Title VII.” (Count III). However, insofar as Plaintiff
may be trying to pursue two distinct sex discrimination claims in these counts, she
cannot do so. “Sexual harassment” is only actionable under Title VII where it is
so severe or pervasive that it rises to the level of a “hostile work environment” as
that phrase is employed in the law. See Meritor Sav. Bank, 477 U.S. at 67;
Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). And here, both Title
VII counts are founded on the same allegations: that Troupe sexually harassed
Plaintiff and that, when she complained about it, the VA did not do enough to
remedy the situation because she was still required to see him at work on a regular
basis. (Compare Compl. ¶¶ 5-9 with id. ¶¶ 12-13). Thus, both Count I and Count
III in substance assert the same Title VII cause of action, and the claims in those
counts are subject to a single legal analysis. See Keeton v. Big Lots Stores, Inc.,
84 F. Supp. 2d 1290, 1298-99 (N.D. Ala. 2015). With that, the court turns to the
parties substantive arguments as they relate to such claims.
Timeliness of EEO Counseling
The VA has moved to dismiss Plaintiff’s Title VII cause of action on the
ground that she allegedly failed to timely exhaust administrative remedies before
filing this action. With respect to such exhaustion, the Eleventh Circuit has
explained as follows:
Before bringing a Title VII action in court, a federal employee must
first seek relief from the agency where the alleged discrimination
occurred. Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976).
“This requirement is not a technicality; ‘[r]ather, it is part and parcel
of the congressional design to vest in the federal agencies and
officials engaged in hiring and promoting personnel primary
responsibility for maintaining nondiscrimination in employment.’ ”
Grier v. Secretary of Army, 799 F.2d 721, 724 (11th Cir. 1986)
(quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983)). In
accordance with the congressional design, the Equal Employment
Opportunity Commission (“EEOC”) has adopted regulations setting
forth the procedure that employees must follow in presenting
discrimination claims to federal agencies. See 29 C.F.R. § 1614.101
et seq. These regulations provide, inter alia, that an aggrieved
employee must “initiate contact with [an EEO] Counselor within 45
days of the date of the matter alleged to be discriminatory....” 29
C.F.R. § 1614.105(a)(1). The purpose of this counselor-contact
requirement is to allow the agency an opportunity to investigate the
claim internally and “try to informally resolve the matter.” See 29
C.F.R. § 1614.105(a). “Generally, when the claimant does not initiate
contact within the 45-day charging period, the claim is barred ....”
Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008).
Ramirez v. Secretary, U.S. Dep’t of Transp., 686 F.3d 1239, 1243 (11th Cir.
2012); see also Green v. Brennan, ___ U.S. ___, ___, 136 S. Ct. 1769, 1774
Plaintiff’s Complaints on July 24, 2013
Plaintiff’s primary argument is that she satisfies the 45-day requirement of
29 C.F.R. § 1614.105(a) based on her reports about Troupe’s sexual harassment
made on July 24, 2013. Specifically, she claims to have complained to three
individuals on that date: (1) her own immediate supervisor, Mostella; (2)
Mostella’s immediate supervisor, Todd; and (3) to Rick DeFilippo, the agency’s
“EEO Program Manager.” (Doc. 22 at 2). Plaintiff also characterizes one or more
of those reports on July 24, 2013, as an “internal EEO complaint.” (Compl. ¶ 6;
Doc. 11-9 at 48; Doc. 22 at 2).
The VA also does not now specifically dispute that an initial contact by
Plaintiff with an EEO counselor on July 24, 2013, would be timely. On that score,
the court notes that contact with an EEO counselor raising a hostile environment
claim is timely so long as all acts which constitute the claim are part of the same
unlawful employment practice and at least one act falls within the 45-day time
period. See Perkins v. Lynch, 169 F. Supp. 3d 1246, 1253 (N.D. Ala. 2016) (citing
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)); McFarland
v. Henderson, 307 F.3d 402, 408 (6th Cir. 2002). The VA also does not dispute
Plaintiff’s claim that she reported Troupe’s sexual harassment to her VA agency
supervisors, Mostella and Todd, on July 24, 2013. The VA further recognizes that
the record supports Plaintiff completed and signed a “Report of Contact” form that
she gave to Mostella at that time, who, in turn, forwarded it to the VA’s Human
Resources Department. The VA argues, however, that none of those “contacts”
was with an “EEO counselor” as required by the regulation. The VA also
challenges Plaintiff’s factual assertion that she complained to DeFilippo on July
24, 2013. As a consequence, the VA argues, the record shows that Plaintiff did
not timely contact an EEO counselor based on her complaints on July 24, 2013.
With regard specifically to whom a federal employee may contact to meet
her obligation under the EEO counseling regulation, the Eleventh Circuit has
The EEO Commission (“EEOC”) has held that “in order to
establish EEO counselor contact, an individual must contact an
agency official logically connected to the EEO process and exhibit an
intent to begin the EEO process.” Duke v. Slater, EEOC Dec.
01A02129, 2000 WL 732027, at *1 (E.E.O.C. May 22, 2000). In
Kraus [v. Presidio Trust Facilities Division, 572 F.3d 1039 (9th Cir.
2009)], the Ninth Circuit held that an “EEO Officer” of a federal
employer was an agency official logically connected with the EEO
process even though she did not have the title “Counselor.” 572 F.3d
at 1044–45. According to Kraus, the EEOC understands agency
officials “logically connected with the EEO process” to encompass
EEO personnel with titles other than “counselor,” such as EEO
officers, as well as certain officials who are not EEO personnel, such
as directors within the agency’s office of civil rights. Id. at 1045;
accord Culpepper v. Schafer, 548 F.3d 1119, 1122-23 (8th Cir. 2008)
(U.S. Department of Agriculture employee’s letter to the director of
that agency’s Office of Civil Rights satisfied administrative
However, “neither internal appeals[ ] nor informal efforts to
challenge an agency’s adverse action” amount to initiating contact
with an EEO Counselor. See Penn v. Geren, EEOC Dec.
0120082927, 2008 WL 5479277, at *2 (E.E.O.C. Dec. 10, 2008)
(stating that these actions do not toll the time to contact an EEO
Counselor); see also Johnson v. Henderson, 314 F.3d 409, 415 (9th
Cir. 2002) (“[T]here is no basis in law to suggest that an employee’s
complaints to her supervisors satisfy the requirement that the
aggrieved employee seek EEO counseling prior to filing a formal
complaint or suing in court.”).
Murphree v. Commissioner, Soc. Sec. Admin., 644 F. App’x 962, 966 (11th Cir.
The court first considers Plaintiff’s complaints to Mostella and Todd. It is
undisputed they are Plaintiff’s supervisors within the VA and not EEO personnel.
Therefore, her complaints to them could not satisfy the regulation’s requirement to
seek EEO counseling within 45 days. See Murphree, 644 F. App’x at 966.
Plaintiff claims, however, that she also complained on July 24, 2013, to
DeFilippo. Unlike Mostella and Todd, DeFilippo is with the agency’s EEO office.
Although DeFilippo’s title is “EEO Program Manager,” not “EEO Counselor,” it
is reasonable to consider him an official “logically connected with the EEO
process,” Murphree, 644 F. App’x at 966, such that, if Plaintiff did make a
complaint to him on July 24, 2013, that could satisfy her burden under the
regulation. The VA insists, however, that Plaintiff did not, in fact, make such a
complaint. In support, the VA highlights DeFilippo’s declaration, in which he
expressly denies being contacted by Plaintiff about Troupe’s alleged harassment
until November 2013.5 (See DeFilippo Decl. ¶¶ 6-7). The question, then, is: “Did
Plaintiff make a complaint to DeFilippo on or about July 24, 2013?” For the
reasons explained below, the court finds she clearly did not.
Plaintiff contends in her brief that she “reported this case” to DeFilippo on
July 24, 2013. (Doc. 22 at 2). She also pleads in her Complaint that she “filed an
EEO internal complaint with the Defendant on July 24, 2013.” (Compl. ¶ 6).
However, the only potential evidence to which Plaintiff points in support of either
proposition is in the form of allegations appearing in her formal administrative
EEO discrimination complaint filed on April 29, 2015. (See Doc. 22 at 2, citing
Doc. 23 at 6-9). Specifically, when asked on that form for information on whether
she had previously “filed the complaint with anyone else,” Plaintiff checked the
box marked “yes,” along with the explanation: “I filed an in-house EEO
Complaint against Mr. Troupe with my supervisor, Rick DeFilippo on July 24,
2013.” (Doc. 23 at 6). On a sheet she attached to that same form, Plaintiff
likewise alleged: “I first reported [Troupe’s sexually harassing] conduct to Mr.
Rick DeFilippo on July 24, 2013. On that date I filed an in-house EEO complaint,
which DeFilippo never forwarded to any other office.” (Id. at 7). None of those
The VA recognizes that Plaintiff did communicate with DeFilippo November 2013, but
the VA contends that such contact was not within 45-days of any sexual harassment occurring
prior to Troupe’s transfer on July 25, 2013. The court will consider such issues later in the text.
statements by Plaintiff, however, are either sworn or made under penalty of
perjury as provided by 28 U.S.C. § 1746. Accordingly, the court may discount
them as it relates to its findings related whether Plaintiff timely resorted to and
exhausted administrative remedies. See Simmons v. Prison Health Servs., 2010
WL 5508499, at *3–4 (S.D. Ga. Aug. 12, 2010), report and recommendation
adopted, 2011 WL 31088 (S.D. Ga. Jan. 5, 2011); cf. Carr v. Tatangelo, 338 F.3d
1259, 1273 n. 26 (11th Cir. 2003) (the court may disregard unsworn statements
offered on a motion for summary judgment); also see generally Bryant, 530 F.3d
at 1374-77 (recognizing that the court is authorized to resolve disputed issues of
fact relevant to an administrative exhaustion defense).
Further, Plaintiff’s assertion that she complained to DeFilippo or otherwise
submitted an “EEO complaint” on or about July 24, 2013, is inconsistent with the
documentary evidence in that it reflects other statements made by Plaintiff herself.
To start with, it appears that, in March 2015, Plaintiff told the EEO Counselor,
Butler, that she first complained to DeFilippo on November 25, 2013, not in July
of 2013. (Doc. 11-8 at 3). Next, the court observes that Plaintiff frequently refers
to her “Report of Contact” created on July 24, 2013,6 as an “EEO Complaint.”
Although the “Report of Contact” form is undated, the information supplied by Plaintiff
indicates that it was completed on July 24, 2013. (See Doc. 23 at 4) (“On today (sic), July 24th,
Jonathan had a conversation ....”).
(See, e.g., Doc. 16 at 2; Doc. 22 at 2, citing Doc. 23 at 6-9). But there is nothing
in that document linking it in any respect to the agency’s EEO office or an EEO
proceeding. On its face, the Report of Contact form is generic VA agency form,
with no indication that it was designed for lodging complaints about sexual
harassment or employment discrimination, with the EEO office or anyone else.
(See Doc. 23 at 3). There is also nothing on the document tending to suggest that
it was either supplied by DeFilippo or any other EEO official to Plaintiff for
completion or that Plaintiff tendered it or otherwise ever complained to DeFilippo
or any other EEO official.7 (Id.) Rather, Plaintiff documented in the Report of
Contact only that she had reported Troupe’s sexual harassment to her agency
supervisors, Mostella and Todd. (Id. at 4).
That is also just what Plaintiff said when she later wrote to DeFilippo on
November 25, 2013. In her Memorandum of that date, she advised DeFilippo that,
on July 24, 2013, she had reported Troupe’s sexual harassment “to [her]
immediate supervisor, Brenda Mostella RN, and Marie Todd RN who is Brenda’s
supervisor.” (Doc. 11-9 at 48). After relating that “both supervisors were very
concerned and willing take immediate action,” Plaintiff stated:
DeFilippo acknowledges that Plaintiff attached a copy of her Report of Contact when she
emailed him on November 25, 2013, but he claims not to have received it before that. (DeFilippo
Decl. ¶¶ 6-7).
My Point (sic) of Contact report was given to Brenda Mostella the
very next day, July 25, 2013. Mrs. Mostella immediately forwarded
my report to Human Resources and as a result, [Troupe] was
relocated to another floor. Since that date, ... I have not heard nor
been advised of anything concerning this case.
(Id.) Thus, Plaintiff’s summary of events to DeFilippo in November 2013
unambiguously recountes that she had up to that point complained to her agency
supervisors with the VA, who had, in turn, involved the agency’s human resources
department, and that Troupe had been transferred immediately thereafter.
Incidentally, that is also precisely what Mostella testified to in her EEO
investigation interview. (Mostella Int. at 5-6, 10-13, 24-25). Of course, what is
glaringly absent from Plaintiff’s November 2013 Memorandum to DeFilippo is
any claim, or even the slightest hint, that Plaintiff had previously complained or
made a report to any EEO personnel, including DeFilippo himself. That is more
than passing strange insofar as Plaintiff was then directly addressing DeFilippo,
giving him her account of the case’s history and asking him for help in the matter.
Plaintiff’s assertion that she complained to DeFilippo on July 24, 2013, is
also inconsistent with her sworn testimony in response to questioning by the EEO
investigator in October 2015. Such inconsistency also supports the court’s
discounting of Plaintiff’s present position. Cf. Van T. Junkins & Associates, Inc.
v. U.S. Indust., Inc., 736 F.2d 656, 657-58 (11th Cir. 1984) (explaining that under
the “sham affidavit” doctrine, a party cannot create a material issue of material fact
at summary judgment by presenting an affidavit that contradicts, without
explanation, previously given sworn testimony); Chalden v. Salazar, 2011 WL
2550877, at *7 (N.D. Ill. June 27, 2011) (applying “sham affidavit” doctrine based
on sworn EEO investigation testimony).
At the outset, although it may be a relatively small matter, the court notes
that, in Plaintiff’s formal EEO discrimination complaint from April 2015, she says
she complained to DeFilippo on July 24, 2013, there calling him “[her]
supervisor.” (Doc. 23 at 6). However, in her EEO testimony, Plaintiff was clearly
asked to identify her supervisors, and she did not name DeFilippo. (Pl. Int. at 4).
And when Plaintiff did later talk about DeFilippo in her EEO testimony, she
identified him as “the EEO manager of [the] VA,” not as her “supervisor.” (Id. at
12). Again, DeFilippo has expressly disclaimed that he was ever Plaintiff’s
“supervisor.” (DeFilippo Decl. ¶ 6). Also, when asked by the EEO investigator
when she first reported Troupe’s sexual harassment “to management or [her]
supervisor or [her] nurse manager,” Plaintiff responded that she “reported it to
them” some time after she returned from maternity leave in May 2013. (Pl. Int. at
18-20). She did not suggest in that testimony, however, that she had also
complained at that same time to DeFilippo or any other EEO personnel. (See id.)
Rather, in her EEO interview, Plaintiff indicates she “was under the
impression” she had invoked the EEO process based on certain communications
she had with DeFilippo, as follows:
[S]o it got to the point to where I started having to seek therapy again.
And my therapist -- and I did -- I’m sorry, prior -- I did send a letter to
the EEO, Rick DeFilippo, [the EEO Manager of the VA], and I
contacted him and told him that I wanted to file a complaint for
sexual harassment. He advised me to send him an email.
And I told him I wanted to file the complaint, he told me to send him
an e-mail. And that’s exactly what I did. And so I was under the
impression at that point that I -- that that was filing a complaint.
[DeFilippo] responded back and scheduled a meeting. And during
that time, we had -- we had inclement weather. It was snow, and a lot
of people didn’t make it to work. I wasn’t able to make it to work,
and so they -- I asked for the meeting to be rescheduled. My nurse
manager said that it ... couldn’t be scheduled for the next week
because she would be out of town. And so then no meeting, no
nothing was scheduled.
Shortly after that, one day I was having so many panic attacks
my therapist said that I needed to seek psychiatric help because I
needed to be on medications in order for me to work because I
couldn’t afford to be off.
(Pl. Int. at 12-13).
Although Plaintiff does not identify the date or time period of the
communications to which she is referring above, the only reasonable interpretation
is that they are from November 2013 and months immediately following, and not
from July 2013 and following. For one thing, while Plaintiff explained to the EEO
investigator that she sent DeFilippo an “email” shortly after she requested in some
preliminary verbal communication that she do so, the first “email” in the record
from Plaintiff to DeFilippo is dated November 25, 2013. (See Doc. 11-9 at 47-48;
see also DeFilippo Decl. ¶ 7). Plaintiff also states in her EEO testimony that she
also sent DeFilippo a “letter” at that time. The record contains only one
communication that might be plausibly described as a “letter” from Plaintiff to
DeFilippo: the “Memorandum” dated November 25, 2013, that Plaintiff attached
to the aforementioned email of the same date. (Id.) Again, as discussed, the
substance of that Memorandum belies that Plaintiff had previously complained to
Also, Plaintiff’s sworn EEO testimony regarding what ensued after
contacting DeFilippo is wholly incompatible with the notion that she is talking
about events from in or around July 2013. Namely, Plaintiff testified that
DeFilippo responded to her email by scheduling a meeting that had to be canceled
because of a snowstorm. It goes without saying that it does not snow in
Birmingham, Alabama, anytime in or near July. Moreover, Plaintiff’s EEO
testimony regarding ensuing events lines up perfectly with her more detailed
descriptions elsewhere of what she says occurred in the wake of contacting
DeFilippo in late November 2013. Again, Plaintiff’s sworn EEO testimony above
is that after she sent her email and letter to DeFilippo, the following occurred: (1)
he responded by scheduling a meeting that was canceled due to a snowstorm; (2)
that meeting was further delayed because Mostella was “out of town”; (3) the
meeting was not rescheduled after that; and (4) Plaintiff soon afterwards sought
psychiatric help because of repeated “panic attacks.” That is unmistakably the
same timeline she outlines for January and February 2014 in an attachment to her
formal EEO discrimination complaint, wherein she stated in relevant part:
The first meeting was scheduled for 1/30/2014 but was cancelled due
to inclement (snow) weather; clinics were closed and most employees
were not able to transport safely to work. The second scheduled
meeting did not happen because my nurse manager, Brenda Mostella
stated she would be in a class and requested the meeting to be
rescheduled for the week of February 9th, 2014. No other meeting
was scheduled. I asked, but received no reply. Jonathan Troupe
continued to come to my work area when I was told he shouldn’t. He
was moved to the 7th floor from the 6th floor where he and I worked
together. My work environment was still hostile and I continued to
feel unsafe. I was having to increase my intake of medication to
attempt to control my anxiety attacks at work. On February 19, 2014,
I became discouraged, I felt unsupported, severely depressed, suicidal
and was admitted to Brookwood Hospitals’ (sic) Psychiatric Unit.
My husband signed court ordered documents for me to remain under
doctor’s care for more than 24 hours because he was afraid for my
life. On February 27th, 2014 my doctor placed me on [leave under
the Family Medical Leave Act] due to increased anxiety, severe
depression and PTSD.
(Doc. 23 at 8).
Based on the foregoing, the court determines that Plaintiff did not, in fact,
make initial contact with DeFilippo on July 24, 2013. Nor did the complaints that
Plaintiff did make on that date, to her agency supervisors Mostella and Todd,
qualify as contacts with an EEO counselor for purposes of 29 C.F.R. §
1614.105(a). Therefore, Plaintiff cannot satisfy her obligation under that
regulation to have sought EEO counseling within 45 days of the discriminatory
matter based on her complaints of July 24, 2013.
Plaintiff’s Complaints in November 2013 and
Plaintiff also seems to assert, however, that her hostile environment claim is
timely based on later complaints or reports she made to EEO personnel. Indeed,
there is no dispute that Plaintiff did contact an EEO Counselor in March 2015 and
that Plaintiff thereafter filed a formal EEO complaint of discrimination on April
28, 2015. It is also clear that Plaintiff contacted DeFilippo in November 2013 and
February 2015, indicating on both occasions that she was dissatisfied with the
VA’s response to her the sexual harassment complaint. The VA argues, however,
that none of those contacts occurred within 45 days of the matter alleged to be
discriminatory, even assuming the contacts otherwise satisfied the requirements of
29 C.F.R. § 1614.105(a).
The court assumes that each of the above-referenced communications
between Plaintiff and DeFilippo or the EEO counselor, Butler, qualifies as contact
with an “EEO counselor” within the meaning the regulation. See Murphree, 644
F. App’x at 966. However, the earliest among those occurred in November 2013
when Plaintiff spoke with DeFilippo and sent him a follow-up email with
attachments. Again, contact with an EEO counselor raising a hostile environment
claim is timely so long as all acts which constitute the claim are part of the same
unlawful employment practice and at least one act falls within the 45-day time
period. See Perkins, 169 F. Supp. 3d at 1253; McFarland, 307 F.3d at 408; see
also Morgan, 536 U.S. at 117. It is also assumed for present purposes that
Troupe’s sexually graphic remarks and displays of pornographic media were
sufficiently severe or pervasive so as to create a hostile work environment in
violation of Title VII. Plaintiff admits, however, that after the VA reassigned
Troupe to the seventh floor on July 25, 2013, he did not subject Plaintiff to any
sort of inappropriate remarks or conduct of a sexual nature. So even if Troupe
committed a constituent act of sexual harassment on the day before his transfer, to
have timely raised an associated hostile work environment claim, Plaintiff would
have had to make initial contact with an EEO counselor by September 9, 2013.8
Therefore, an initial contact with DeFilippo or Butler in November 2013 or
afterwards could not satisfy the regulation’s 45-day requirement.
Plaintiff claims, however, that she continued to endure a hostile work
environment even after Troupe’s transfer on July 25, 2013, right up until he
stopped working for the VA in March 2015. In support, she casts the VA’s
response to her complaints of sexual harassment as not only inadequate but also
sexually discriminatory in itself. In this vein, she also emphasizes that, even if
Troupe never said anything untoward after his transfer, she was still effectively
required to see him on a daily basis and that he would stare or otherwise look at
her and make facial expressions indicating he harbored hostility towards her.
But Plaintiff’s subjective belief that the VA’s response to her complaints
was inadequate does not render that response itself a sexually discriminatory act.
For starters, even assuming arguendo that the VA’s response was legally
inadequate, there is nothing in the record to support that such action itself was
either motivated by Plaintiff’s sex or that it could be reasonably viewed as
The 45th day following July 24, 2013, was Saturday, September 7, 2013. However,
Plaintiff would have had until the next business day to make contact with an EEO counselor. See
Gardner v. Aviagen, 454 F. App’x 724, 727 (11th Cir. 2011); King v. Potter, 2006 WL 842402,
at *4 (E.D.N.Y. Mar. 27, 2006).
harassment or as materially adverse treatment. But equally to the point, an
employee who complains about sexual harassment does not get to choose the
remedy, so whether Plaintiff was satisfied with the VA’s response is not the issue.
See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1306 (11th Cir.
2007); Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1555 (11th Cir.
1997). Rather, an employer’s remedial response need only be reasonably
calculated to prevent the misconduct from recurring. See Baldwin, 480 F.3d at
1305 (citing Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th
Cir. 1996)). Broadly speaking, remedies to complaints of sexual harassment
“should be assessed proportionally to the seriousness of the offense.” Ellison v.
Brady, 924 F.2d 872, 882 (9th Cir. 1991) (quoting Dornhecker v. Malibu Grand
Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987); Baskerville v. Culligan Intern. Co.,
50 F.3d 428, 432 (7th Cir. 1995) (“[W]hat is reasonable depends on the gravity of
Whatever Plaintiff’s subjective perceptions of the Troupe’s harassment or
her extreme psychological reaction to it, the objective facts of this case involve a
single harassing co-worker who is not alleged to have had either supervisory
authority over Plaintiff or a prior record of harassment complaints against him.
Plaintiff claims that, before his reassignment, Troupe repeatedly made vulgar,
sexually graphic statements; loudly played sexually degrading and explicit music
in the office; and showed Plaintiff pornographic media. And again, it’s assumed
that such harassment created a hostile work environment because of sex.
However, Plaintiff makes no claim that Troupe ever touched her inappropriately or
made any threats or express sexual demands upon her. Under those circumstances,
Title VII simply did not entitle Plaintiff to a remedy that would spare her any and
all further contact with Troupe. See Baldwin, 480 F.3d at 1305-06 (“We have held
that warnings and counseling of the harasser are enough where the allegations are
substantiated,” citing, inter alia, Fleming v. Boeing Co., 120 F.3d 242, 246-48
(11th Cir. 1997)); id. at 1301 (holding that employer did not violate Title VII by
terminating plaintiff because she refused employer’s “reasonable remedy” that
would have entailed plaintiff either accepting a transfer to another city or
continuing to work with the alleged harasser who had been warned against future
misconduct and been required to undergo counseling); Milligan v. Board of
Trustees of So. Ill. Univ., 686 F.3d 378, 385 (7th Cir. 2012) (rejecting the
plaintiff’s argument that the employer’s “response was ineffective because it did
not prevent all contact between him and [the harasser]” because the employer “was
not required to completely insulate [the plaintiff] from [the harasser],” and citing
cases); cf. Wilson v. Moulison N. Corp., 639 F.3d 1, 8 (1st Cir. 2011) (“[Title VII]
does not invariably require termination or suspension as a response to harassment
(even serious harassment),” citing Green v. Franklin Nat. Bank of Minneapolis,
459 F.3d 903, 912 (8th Cir. 2006)); Landgraf v. USI Film Prods., 968 F.2d 427,
430 (5th Cir. 1992), aff’d, 511 U.S. 244 (1994) (“Title VII does not require that an
employer use the most serious sanction available to punish an offender,
particularly where, as here, this was the first documented offense by an individual
The record shows that, upon receiving what Plaintiff acknowledges to have
been her first sexual harassment complaint to a supervisor on July 24, 2013, the
VA took corrective action the following day by permanently reassigning Troupe to
another floor, thereby separating him from Plaintiff’s immediate work
environment. The VA also sternly warned him in writing against future
misconduct and required him to undergo counseling. That remedy was not only
reasonably likely to stop Troupe’s sexual harassment but also actually did stop it,
insofar as Plaintiff concedes that Troupe did not make any further sexually
inappropriate remarks or displays of any kind. See Baldwin, 480 F.3d at 1305-06;
Hubbard v. UPS, 200 F.3d 556, 557-58 (8th Cir. 2000). Since the VA’s remedial
action was all Title VII required, Plaintiff’s argument that such response was itself
a sexually discriminatory act for purposes of extending the 45-day EEO contact
period is plainly without merit.
Plaintiff reiterates, however, that even after Troupe’s transfer she was still
required to “see” him on a daily basis, when they would go to each other’s floors
and pass in the hallway, whereupon he would give her dirty looks. She similarly
claims that Troupe once sat across from her and stared at her during a staff
meeting. Plaintiff does not make any other complaints about Troupe’s posttransfer conduct. Nevertheless, she emphasizes that her fear of continuing to see
him caused her severe depression, anxiety, PTSD, and panic attacks that required
extensive mental health treatment and medications, a seven-month medical leave
from February to September 2014, and a four-day hospitalization in February
2015. The court thus discerns Plaintiff to claim that her encounters with Troupe
following his transfer amounted to additional acts of sexual harassment extending
both her exposure to a hostile work environment and the 45-day deadline for her
to make initial contact with an EEO counselor. (See Doc. 16 at 2 (wherein
Plaintiff argues that the “allegations of the Defendant mishandling the sexual
harassment Complaint did in fact fall within the forty-five (45) day period to file
an EEO Complaint.”). The court disagrees.
The fact that Title VII did not require the VA to completely isolate Plaintiff
from Troupe, as discussed above, implies that instances of her merely “seeing”
him in the workplace after his transfer did not itself constitute discriminatory
harassment. Plaintiff also complains, though, not just about Troupe coming within
her field of vision but also that, when she did, he would stare or glare at her with
an “angry” or “mean” facial expression. The court concludes, however, that such
alleged “harassment” could not extend the 45-day deadline for making a charge
about Troupe’s misconduct occurring before his transfer, as explained below.
For purposes of determining whether an administrative claim raising a
hostile work environment was timely, a discriminatory act of harassment
committed on one day may have an insufficient nexus to prior acts of harassment
so as to be considered part of the same hostile environment, including because of
“intervening action by the employer.” Watson v. Blue Circle, Inc., 324 F.3d 1252,
1258 (11th Cir. 2003) (quoting Morgan, 536 U.S. at 118). That principle applies
here. Troupe’s pre-transfer harassment was distinctly in the form of vulgar,
sexually graphic, and objectifying verbal remarks; sexually suggestive noises;
prying sexual questions; playing music with sexually explicit lyrics; and watching
and displaying pornographic photos and videos in the office. (See Compl. ¶ 7).
Plaintiff characterizes those incidents as harassment because of sex (see id. ¶¶ 6-8,
13), and their overt sexual content and degrading nature generally would allow
that motivational inference. See Reeves v. C.H. Robinson Worldwide, Inc., 594
F.3d 798, 809-11 (11th Cir. 2010) (en banc); Livingston v. Marion Bank & Trust
Co., 30 F. Supp. 3d 1285, 1306-07 (N.D. Ala. 2014). However, it is undisputed
that once Plaintiff complained, the VA immediately intervened, transferring
Troupe to another floor and sternly warning him against further misconduct.
Plaintiff admits that when that happened, all of Troupe’s sex-based harassment
came to a screeching halt. From then on, he and Plaintiff no longer worked side
by side. And although Plaintiff says she continued to see Troupe on a “daily
basis,” the interactions she describes are relatively brief and intermittent, on
occasions when they went to each other’s floors, passed each other in hallways,
and once when they attended the same training meeting. Moreover, from all that
can be discerned from the record, after the Troupe’s reassignment, no words were
ever exchanged between them. Plaintiff insists that Troupe continued to “harass”
her in that, when she would see him, he allegedly would stare and look at her with
“angry” and “mean” looks. But such subtle, non-verbal “harassment” is distinctly
different both in its form and severity from the repeated, overtly graphic sexual
remarks and displays Plaintiff purportedly endured working along side Troupe,
before the VA intervened. Indeed, there is nothing in the record to support that
Troupe’s post-transfer “harassment” was based specifically on sex or gender.
Rather, according to Plaintiff, Troupe began giving her stares, glares, and dirty
looks immediately after he became aware she had reported him to VA managers
for sexual harassment. Thus, such post-transfer “harassment” is also distinct in its
motivation insofar as it would represent a form of retaliation because Plaintiff
complained to their employer about sex discrimination, rather than a form of
sexual harassment proper. See Swindle v. Jefferson Cty. Comm’n, 593 F. App’x
919, 925 (11th Cir. 2014).
The court concludes that the pervasive, overtly sexual harassment to which
Troupe allegedly subjected Plaintiff before the VA intervened and transferred him
to a separate floor is sufficiently unrelated to the glares, stares, and dirty looks he
gave Plaintiff afterwards such that the they are not part of the same hostile work
environment for purposes of the timeliness of her administrative claim. As such,
Troupe’s non-verbal, post-transfer acts cannot be used to extend the 45-day period
in which Plaintiff had to make initial contact with an EEO counselor to raise a
hostile work environment claim based on Troupe’s earlier sexual harassment.
Plaintiff’s Title VII claim is therefore barred and due to be dismissed to the extent
that it is based on harassment occurring prior to Troupe’s transfer on July 25,
Hostile Environment Claim Based on Post-Transfer
While Plaintiff’s Title VII hostile environment claim is untimely as to
alleged harassment occurring prior to Troupe’s transfer on July 25, 2013, Plaintiff
also maintains that she might recover based upon continuing harassment by
Troupe thereafter, as discussed above. It would appear that at least some of that
alleged harassment, including specifically when Troupe sat across from Plaintiff in
a training meeting and purportedly “stared” at her in a hostile manner, came within
45 days of Plaintiff contacting the EEO Counselor, Butler, in early March 2015.
The VA argues, however, that any such claim based on Troupe’s post-transfer
harassment is due to be dismissed because Plaintiff’s allegations regarding such
incidents plainly cannot support recovery under Title VII. The court agrees with
Plaintiff’s allegations of harassment by Troupe subsequent to his transfer
boil down to claims that she continued to see him in the workplace on a daily
basis, that he would “look” at her with “angry” and “mean” facial expressions, and
that he “stared” at her, including in the training meeting. The court has previously
recognized that any such non-verbal, post-transfer “harassment” appears clearly to
be based on a retaliatory animus on the part of Troupe, stemming from the fact
that Plaintiff had complained to management that he had sexually harassed her,
rather than because of Plaintiff’s sex per se. The court notes, though, that
Plaintiff’s Complaint invokes a Title VII cause of action only for sexually
discriminatory harassment, not unlawful retaliation.9 But that is not her real
Rather, the more formidable hurdle for Plaintiff is that, irrespective of
whether she might couch Troupe’s post-transfer harassment as sexually
discriminatory or as retaliation for complaints, her allegations would have to
establish that such harassment was so severe or pervasive, viewed both
subjectively by Plaintiff and objectively by a reasonable person, that it altered the
terms and conditions of her employment and created a hostile work environment.
See Trask, 822 F.3d at 1195; Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir.
2012). The court has no doubt that Plaintiff considered her continued exposure to
Troupe to be harassing and to have created a hostile environment. Even so, Title
Title VII prohibits an employer from retaliating against an employee because she has
opposed an employment practice that violates that Act’s substantive anti-discrimination
provisions. See 42 U.S.C. § 2000e-3(a). That provision may authorize a cause of action in favor
of an employee who is subjected to hostile work environment in retaliation for having made
protected complaints of sex discrimination. See Gowski v. Peake, 682 F.3d 1299, 1311-12 (11th
Cir. 2012). Although Title VII’s provision governing federal employees, 42 U.S.C. § 2000e-16,
does not specifically mention retaliation, federal employees may bring retaliation claims to the
same extent that non-federal employees may do so under § 2000e-3(a). See Rives v. Lahood, 605
F. App’x 815, 818 (11th Cir. 2015) (citing Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d
1236, 1243 (11th Cir. 1998)).
VII does not set forth “a general civility code for the American workplace.”
Oncale, 523 U.S. at 80. Thus, judicial standards for establishing hostile
environment claims must “filter out complaints attacking ‘the ordinary tribulations
of the workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (quoting Faragher, 524 U.S. at 788). “An employee’s decision
to report discriminatory behavior cannot immunize that employee from those petty
slights or minor annoyances that often take place at work and that all employees
experience.” Id. In the end, Troupe’s alleged stares, glares, and dirty looks
following the transfer, viewed objectively, simply fall far short of the mark. See
Mendoza, 195 F.3d at 1252-53 (conduct alleged by employee, including, inter alia,
supervisor’s “constant” following and staring at employee, did not reach level of
severe or pervasive conduct sufficient to alter employee’s terms or conditions of
employment, thus defeating hostile environment sexual harassment claim); Gupta,
212 F.3d at 585 (holding that assistant professor could not establish hostile
environment claim based on allegations that supervisor stared at her twice,
touched her ring and bracelet once, and kept asking her to lunch); Vance v. Ball
State Univ., 646 F.3d 461, 470 (7th Cir. 2011), aff’d, 133 S. Ct. 2434 (2013)
(“Making an ugly face at someone and staring, while not the most mature things to
do, fall short of the kind of conduct that might support a hostile work environment
claim.”); Vital v. National Oilwell Varco, 2014 WL 4983485, at *42 (S.D. Tex.
Sept. 30, 2014) (“‘Silent treatment’ and dirty looks, standing alone, do not create a
hostile work environment” (citing cases)).
The VA’s motion to dismiss (doc. 11) is due to be GRANTED. A separate
final order will be entered.
DONE, this 6th day of December, 2016.
JOHN E. OTT
Chief United States Magistrate Judge
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