Liana B. Blalock, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 20, 1998
01964542 (E.E.O.C. Nov. 20, 1998)

01964542

11-20-1998

Liana B. Blalock, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Liana B. Blalock v. Department of the Air Force

01964542

November 20, 1998

Liana B. Blalock, )

Appellant, )

)

v. ) Appeal No. 01964542

) Agency No. AR000960225

F. Whitten Peters, ) Hearing No. 100-95-7471X

Acting Secretary, )

Department of the Air Force, )

Agency. )

_______________________________________)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in

accordance with the provisions of EEOC Order No. 960.001.<1>

ISSUES PRESENTED

The issues presented are whether appellant has established by a

preponderance of the evidence that the agency discriminated against

her: on the bases of sex (female) and national origin (Hispanic) when

(1) her second-line supervisor exercised direct supervisory authority

over her in order to establish an adverse performance file on her,

(2) she was returned to the continental United States (CONUS) prior

to the expiration of her 24-month overseas tour in Izmir, Turkey, and

(3) she was sexually harassed prior to her return to CONUS; and on the

basis of reprisal (prior EEO activity) when, after her return to CONUS

her detail from the Personnel Office to the Equal Employment Opportunity

Office was not renewed.<2>

BACKGROUND

In a complaint dated June 30, 1992, appellant, then an Employee

Development Specialist, GS-0235-11, alleged that the agency discriminated

against her as delineated in the above-entitled statement "Issues

Presented."<3> The agency conducted an investigation, provided appellant

with a copy of the investigative report, and advised appellant of her

right to request either a hearing before an EEOC administrative judge

(AJ) or an immediate final agency decision (FAD). Appellant requested a

hearing. A hearing was held, and thereafter, the AJ issued a recommended

decision (RD) finding no discrimination, received by the agency on

February 22, 1996. On April 24, 1996, the agency adopted the finding

in the RD and issued a FAD finding no discrimination. It is from this

decision that appellant now appeals.

ANALYSIS AND FINDINGS

The Commission has reviewed the record, consisting of the investigative

report, the hearing transcript, the hearing exhibits, the RD, the FAD,

and the parties' statements on appeal. With regard to the agency's

supervision of appellant, her return to CONUS, and the non-renewal of

her detail, the Commission concludes that, in all material respects,

the AJ accurately set forth the facts giving rise to the complaint and

the law applicable to the case. The Commission further concludes that

the AJ correctly determined that appellant had not established, by a

preponderance of the evidence, that the agency discriminated against her

as alleged in her complaint. Accordingly, the Commission herein adopts

the AJ's recommended findings of fact and conclusions of law in those

matters.

The Commission notes that the AJ considered sua sponte the issue of

whether appellant had been sexually harassed by the then-Group Commander,

who had approved appellant's early return to CONUS. Although this

action was not in accordance with the Commission's regulations, which

require such "like or related matters" to be remanded for counseling,

see 29 C.F.R. �1614.109(a), the fact that the agency concurred in this

action, and that appellant had the opportunity to adduce evidence on

this matter at the hearing, render such error harmless under the facts

of this case. Nonetheless, the Commission modifies the findings of the

AJ to reflect that appellant has not established a prima facie case of

sexual harassment discrimination.

Sexual harassment under Title VII may take one of two forms: (a)

harassment that conditions concrete employment benefits on sexual favors,

in other words, quid pro quo sexual harassment, or (b) harassment that,

while not directly affecting economic benefits, creates a hostile or

offensive work environment, in other words, "hostile work environment"

sexual harassment. Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57,

62-67 (1986). A necessary component of either type of sexual harassment

is unwelcome conduct of a sexual nature: sexual advances, requests for

sexual favors, or other verbal or physical conduct of a sexual nature.

See, e.g., Pitts v. Department of Health and Human Services, EEOC Appeal

No. 02960011 (February 5, 1998).

It is not clear whether the AJ construed the facts of this case as

raising an allegation of quid pro quo sexual harassment or hostile work

environment sexual harassment. The facts alleged by appellant were

that the Group Commander occasionally asked her when she was going

to start working out at the gym again, and occasionally invited her to

visit him at his office. Regardless of whether the Group Commander's

conduct was welcome or unwelcome, the Commission finds that the facts

alleged by appellant cannot reasonably be construed as conduct of a

sexual nature. Id. Further, the one fact alleged by appellant that

might be characterized as "conduct of a sexual nature," was that she had

heard that the Group Commander had made sexual advances toward a Turkish

national employed by the agency.<4> Hearing such a rumor, however,

does not rise to the level of harassment, which requires that the sexual

conduct have unreasonably interfered with appellant's job performance or

have engendered an intimidating, hostile or offensive work environment.

29 C.F.R. �1604.11(a); see Meritor Savings Bank, F.S.B. v. Vinson,

477 U.S. 57, 62-67 (1986). Accordingly, a prima facie case of sexual

harassment has not been established.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from

the date that you receive this decision. To ensure that your civil

action is considered timely, you are advised to file it WITHIN THIRTY

(30) CALENDAR DAYS from the date that you receive this decision or

to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the

administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Nov. 20, 1998

DATE Frances M. Hart

Executive Officer

Executive Secretariat

1Appellant's attorney timely filed a statement on appeal, to which

the agency representative timely replied. After the expiration of

time for pleadings to be filed, appellant's attorney and the agency

representative filed a sequence of rebuttals, replies, and motions.

The Commission's regulations do not provide for the submission of any

pleadings beyond an appellant's statement in support of the appeal and

the agency's reply, 29 C.F.R. �1614.403(d), and do not provide for the

filing of any pleadings beyond the respective 30-day time limits set

forth in the afore-referenced section. Accordingly, the only pleadings

considered by the Commission on appeal are appellant's statement in

support of her appeal and the agency's reply thereto.

2The issues are stated somewhat differently in the text above than

they have been elsewhere in the record, for the purposes of clarifying

the actual content of the allegations. For example, appellant's

first allegation initially read, "[T]he agency adversely affected her

supervisor's job in order to develop an adverse performance file on

appellant."

3Appellant did not initially allege sexual harassment. The AJ

determined that certain facts alleged by appellant might constitute

sexual harassment and addressed the matter in her recommended decision.

The agency concurred in the AJ's decision to do so.

4There is evidence of record that the Group Commander had in fact engaged

in a consensual sexual relationship with a Turkish national employed

by the agency. However, the relationship ended prior to appellant's

arrival in Turkey.