01961104
10-01-1998
Jolanda Jordan, Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (Pacific/Western Area), Agency.
Jolanda Jordan v. United States Postal Service
01961104
October 1, 1998
Jolanda Jordan, )
Appellant, )
)
v. ) Appeal No. 01961104
) Agency No. 1F-927-1023-94
Marvin T. Runyon, Jr., ) Hearing No. 340-94-3806X
Postmaster General, )
United States Postal Service )
(Pacific/Western Area), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On October 18, 1995, Jolanda Jordan (appellant) timely initiated an
appeal to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the Postmaster General, United States Postal
Service (agency), received on September 30, 1995. Appellant alleged
that the agency violated Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. The Commission accepts this appeal
in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issue presented is whether appellant was discriminated against based
on sex (female - sexual harassment) and national origin (Polish) when,
in or around January 1994, she was removed.
CONTENTIONS ON APPEAL
On appeal, appellant challenges the Administrative Judge's (AJ's)
credibility determinations and contends that the AJ showed undue favor
toward the agency. The agency contends that appellant's argument on
appeal fails to rebut the AJ's recommended decision (RD) and that its
final decision should, therefore, be affirmed.
BACKGROUND
Appellant filed this formal complaint on February 2, 1994. Following an
investigation of this complaint, the agency informed appellant that she
could request either an EEO administrative hearing or a final agency
decision (FAD), based on the existing record. Appellant requested an
EEO hearing, which was held on May 25 and 26, 1995. In her RD, the
AJ recommended a finding of no discrimination. Thereafter, the agency
issued a FAD, in which it adopted the AJ's RD. It is from this decision
that appellant now appeals.
At the time of the alleged discrimination, appellant was employed by the
agency as a Window Clerk, PS-5, at the agency's Santa Ana General Mail
Facility, Santa Ana, California (the facility). She was removed from
her position after Postal Inspectors videotaped her failing to enter
retail transactions on her Integrated Retail Terminal and apparently
taking money from her window credit drawer. Appellant alleged, however,
that her removal was the result of quid pro quo sexual harassment by
the former Director of Operations (Responsible Official 1, RO 1) at
the facility. She also alleged that she was the victim of a "sexually
charged atmosphere," created by her supervisor (RO 2), and that this
hostile work environment led to her eventual termination.<1> Finally,
appellant alleged that her discharge was based on her national origin.
In her RD, the AJ found that appellant failed to present sufficient
evidence that her removal was the result of quid pro quo sexual harassment
by RO 1. First, the AJ noted that there was too great a passage of time
between the alleged harassment by RO 1 in 1989 and RO 2's decision to
contact Postal Inspectors in October 1993. Second, the AJ did not find
appellant's testimony regarding RO 2's alleged complicity, with regard
to RO 1's attempts to date appellant, credible or persuasive. Assuming,
arguendo, that appellant established a prima facie case of quid pro quo
sexual harassment, the AJ found that the agency put forward a legitimate,
nonpretextual reason for the adverse employment action. Specifically,
the agency proved that RO 1 had nothing to do with the decision to
remove appellant.<2> Finally, the AJ found that appellant failed to
show pretext. The AJ concluded that the evidence showed that appellant
was removed based on an investigation by Postal Inspectors, which led
them to believe appellant was taking money in connection with her duties.
As for appellant's hostile work environment claim, the AJ found that
appellant failed to establish hostile environment sexual harassment. The
AJ concluded that the incidents alleged by appellant were not sufficiently
severe or pervasive to amount to a hostile working environment; that no
reasonable woman would consider she was working in a hostile working
environment because of the incidents appellant described; and that
appellant failed to establish sufficient evidence of a causal nexus
between the supposed hostile environment and her eventual termination.
Finally, the AJ addressed appellant's allegation that her removal was
based on her national origin. The AJ found that appellant failed to
establish a prima facie case of discrimination because appellant and
someone not of her protected class (the comparative) were both removed for
similar infractions. Further, the AJ found no evidence that the agency
failed to reinstate appellant, or that it reinstated the comparative, for
discriminatory reasons.<3> Accordingly, the AJ concluded that appellant
failed to prove that her removal was based upon sexual harassment of
any kind or upon her national origin.
ANALYSIS AND FINDINGS
The Commission has reviewed the record, consisting of the investigative
report and exhibits, the hearing transcript, the hearing exhibits, the RD,
the FAD, and the parties' statements on appeal. The Commission concludes
that 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 support of our conclusion, we find, as the AJ did, that appellant has
failed to show a sufficient nexus between the alleged harassment, if it
existed, and her removal. We also find that, with regard to appellant's
allegation of disparate treatment based on national origin, she failed
to meet her burden of showing, by a preponderance of the evidence, that
the legitimate, nondiscriminatory reason for her removal articulated by
the agency was pretext for prohibited discrimination.
Regarding appellant's allegations on appeal, we note that the Commission's
Regulations afford the AJ wide latitude in conducting hearings. See 29
C.F.R. � 1614.109(c). We note that in order to show that a hearing was
unfair, a substantial showing of personal bias is required. See Roberts
v. Morton, 549 F.2d 158, 164 (10th Cir.), cert. denied sub nom., Roberts
v. Andrus, 434 U.S. 834 (1977). Appellant has made no such showing.
In addition, she has not offered substantial evidence that the AJ's
credibility findings, which are entitled to great weight, should be
disturbed. See Universal Camera Corp. V. National Labor Relations
Board, 340 U.S. 474 (1951). Therefore, the Commission defers to the
AJ's credibility determinations. Accordingly, we find that appellant
was not discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision and find that appellant has failed
to prove, by a preponderance of the evidence, that she was discriminated
against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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. �1614.604(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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
Oct 1, 1998
_____________ ________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant alleged that this hostile environment was based on RO 2's
nervousness around pretty females and his remarks that certain women
looked or smelled nice; his favoritism towards another female Window
Clerk (which the AJ noted was refuted by appellant's own witnesses);
RO 2's trying to "bribe" the clerks with doughnuts every Friday; and RO
2's alleged statement, when appellant held a co-worker's newborn child
and made the statement that she wanted one (a baby), that he could help
her make one.
2In fact, the evidence establishes that RO 1 was retired at the time of
appellant's removal.
3The comparative was removed just as appellant was, but was reinstated
pursuant to the settlement of a union grievance. The union filed a
grievance on appellant's behalf, but withdrew it prior to arbitration.