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.