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April 25, 1995


The opinion of the court was delivered by: JOYCE HENS GREEN

 Plaintiff Rebecca A. Stoeckel ("Stoeckel") brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq., alleging discrimination on the basis of sex and retaliation for making a complaint of sexual harassment. *fn1" A three-day bench trial commenced in late 1994. Following the trial, the parties submitted proposed findings of fact and conclusions of law. Upon consideration of the record and evidence presented at the bench trial, including the testimony of witnesses whose credibility, demeanor, and behavior the Court has had a full opportunity to observe and evaluate, judgment is entered against plaintiff and in favor of defendants.

 I. Findings of Fact

 Rebecca Stoeckel was hired by defendant Environmental Management Systems ("EMS"), an environmental services firm, in April 1989. EMS is a wholly-owned subsidiary of defendant Environmental Management Consultants, Inc. ("EMC"), an architectural consulting firm. Plaintiffs have alleged, and defendants have not challenged, that at all times relevant to this dispute, EMS and EMC had in excess of 20 employees.

 Stoeckel was hired to fill an office administrator position, a revamped version of a previously-existing position at EMS. Her precise responsibilities are a matter of some dispute. According to plaintiff, her responsibilities included invoicing, project tracking, accounting, and office management. According to defendants, Stoeckel's responsibilities covered numerous management and administrative functions. Stoeckel was to be the point contact person for EMS. She was to create and manage EMS's contract files. Most importantly, Stoeckel was to implement a job tracking system by which EMS could monitor its progress on contracts.

 The extent to which "job tracking" was a part of Stoeckel's job, and the precise nature of the "job tracking" Stoeckel was to perform, were vigorously disputed by the parties over the course of the trial. In plaintiff's view, the job tracking she was hired to perform was for billing purposes and consisted of posting the number of hours worked, samples taken, and expenditures made, by project and by employee. Stoeckel testified that she was required to provide, and did provide, these tracking reports to William Heineman ("Heineman"), President of EMC, and others on a regular basis. She further testified that her supervisor, David Custer ("Custer"), President of EMS, trained her how to do the reports, and never informed her that the reports were for other than billing purposes.

 The job tracking system as envisioned by defendants was different from and more complex than the system described by Stoeckel. As described by Heineman, job tracking was a system by which Stoeckel was to break out the various components of EMS's contracts, such as labor, samples, and expenses, and set milestones for the performance of the contracts. Ms. Stoeckel was to obtain information on hours and costs from employees, determine whether projects were proceeding within their cost and time constraints, and submit written reports periodically to Heineman and others. The purpose of the program was to provide an early warning system to avoid cost overruns and other problems that EMS had experienced on a number of its contracts.

 Heineman testified that he explained the tracking responsibilities to Stoeckel at her initial job interview. He contended that he questioned Stoeckel and Custer at numerous staff meetings about the lack of tracking reports; this testimony was confirmed by the testimony of Clayton Miller and Beth Hudson.

 The nature of the job tracking function and the extent to which Stoeckel was performing this function is highly relevant to defendants' position in this case. Stoeckel alleges, inter alia, that her employment with EMS was terminated in retaliation for her having brought a complaint of sexual harassment against Clayton Miller. Defendants argue that Stoeckel was fired for poor job performance, including her failure to perform the job tracking functions and to provide the required reports. Plaintiff insists that these proferred reasons for her termination are pretextual.

 There is no doubt that top management officials at EMC and EMS had very different views concerning the nature and purpose of the job tracking function. It is also evident that Stoeckel was never directed by David Custer, her immediate supervisor, to perform the tracking function in the manner described by Heineman and others. The Court finds that until December 18, 1989, Stoeckel was performing the job tracking function as requested and directed by her immediate supervisor, then-president David Custer.

 Beginning in June 1989, Clayton Miller ("Miller"), another EMS employee, began to make comments to Stoeckel about her physical appearance and other comments of a sexual nature. Miller also initiated physical contact with plaintiff on a number of occasions. At the time, Miller was a vice president of EMS. He had no supervisory responsibilities over Stoeckel, although they frequently exchanged information and interacted on the job.

 Stoeckel testified that Miller was "kind of flirtatious from the start" of her employment with EMS. He would compliment her with comments such as "you look very good in high heels." He made frequent remarks to her about his dating activities. He frequently winked at her while in close proximity. Another time, Miller touched Stoeckel's blouse to straighten her collar.

 At least once, Miller approached Stoeckel while she was seated at her computer work station and rubbed her shoulders and neck. Stoeckel testified that Miller rubbed her neck and shoulders on numerous occasions; Miller testified that he recalled rubbing Stoeckel's neck once, and that Stoeckel thanked him. Miller also testified that Stoeckel reciprocated by rubbing his neck. While unclear as to the time frame within which the alleged reciprocation took place, Miller testified that it was not immediate. The Court is persuaded that on at least one occasion, Miller rubbed Stoeckel's neck and shoulders but does not credit Miller's statement that Stoeckel reciprocated.

 Stoeckel also testified that Miller took her by the hand and led her around the office, although she did not specify how often this occurred. The only specific incident relayed by plaintiff was that on one occasion, Miller led her by the hand to observe another employee sleeping at the employee's desk.

 Miller agreed that on one occasion he did take Stoeckel's hand and lead her around the office, but he testified that the act represented more of a gesture of unity by a new management team (see discussion of change in management at EMS, infra), and not a sexual advance of any type. Other witnesses testified that they never observed Miller leading Stoeckel by the hand. This testimony is not particularly probative, however, since it is quite possible that other employees would not have observed a brief hand-holding incident.

 Stoeckel never told Miller to stop making comments or to stop touching her; rather, she would move out of the way or leave the area and avoid Miller whenever possible. Stoeckel testified, and the Court accepts, that Miller's comments and behavior made her reluctant to be in the same area as Miller without other people in the vicinity and that she was very conscious of his whereabouts. Nonetheless, during the four months these incidents occurred, Ms. Stoeckel not only did not tell Miller to cease his actions; she did not tell anyone else nor, as best as can be known, did anyone else observe Miller's actions or know of Ms. Stoeckel's desire to be left alone.

 It was only in September, within a week of the elevator incident, that Stoeckel finally complained to her supervisor, David Custer, about Miller's behavior. Custer was angered and said he would "take care of it." Later that day, Custer spoke to Miller about Stoeckel's allegations and told him to stop harassing Stoeckel. *fn2" Miller indicated surprise at the allegations but told Custer that he wanted to apologize to Stoeckel. Custer recommended that Miller not apologize; however, within the next day or so Miller approached Stoeckel and told her that "he was sorry for whatever he did that offended her". Stoeckel was caught off guard by Miller's comment, and responded by saying "OK".

 Custer testified that in addition to talking with Miller, he reported Stoeckel's complaint to Heineman and that Heineman approved of Custer's handling of the complaint. Heineman emphatically denied that Custer informed him of Stoeckel's complaint, asserting that he first learned of the allegations when he received a copy of Stoeckel's EEOC complaint. This fact is significant because it bears on whether in terminating Stoeckel's employment, Heineman was acting with knowledge of Stoeckel's complaint against Miller. Having observed the testimony and demeanor of all witnesses, the Court fully credits Heineman's testimony that he was unaware of Stoeckel's complaint until he received a copy of her complaint to the EEOC.

 Defendants have urged the Court to find that EMS and EMC had procedures for handling complaints of sexual harassment and that these procedures were not followed by Stoeckel. The Court cannot so find. The only policy submitted as evidence was a handout given to new employees. *fn3" The relevant paragraph of the handout states:

Problems should be settled as quickly as possible . . . There are times when work related problems will arise, even though we try to prevent them. When this happens, we urge you to discuss them with your supervisor, who in most cases can assist in resolving them. If, in your opinion, this is not practical, you should feel free to consult ...

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