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.