Vu T. Pham, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01a03497 (E.E.O.C. Jul. 27, 2000)

01a03497

07-27-2000

Vu T. Pham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Vu T. Pham v. United States Postal Service

01A03497

07-27-00

.

Vu T. Pham,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03497

Agency No. 4-G-770-0460-99

Hearing No. 330-A0-8072X

DECISION

On April 8, 2000, Vu T. Pham (hereinafter referred to as complainant)

initiated an appeal to the Equal Employment Opportunity Commission

(Commission) with regard to his complaint of discrimination in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.<1> The final agency action was dated March 17, 2000.

Accordingly, the appeal is timely and is accepted by this Commission

in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405). Based upon a review of the record, and for the

reasons stated herein, it is the decision of the Commission to AFFIRM

the final agency action.

The issue on appeal is whether complainant proved, by a preponderance of

the evidence, that he was discriminated against on the bases of his race

(Asian), and sex (male) when he was advised that he would be terminated

due to a vehicle accident, thereby forcing him to resign.

Complainant, a temporary rural carrier, filed a formal EEO complaint in

July 1999, raising the above-referenced allegation of discrimination.

The agency accepted complainant's complaint for processing, and conducted

an investigation. Complainant requested an administrative hearing in the

matter. After providing the parties with the appropriate notification,

the Administrative Judge (AJ) issued a decision, without a hearing,

finding that complainant had not been subjected to discrimination as

alleged. Specifically, the AJ found that complainant failed to establish

a prima facie case of discrimination, and that, even assuming complainant

had done so, he failed to show that the agency's articulated reasons for

its actions were pretextual. The agency, in a decision dated March 17,

2000, implemented the AJ's decision. It is from this decision that

complainant now appeals.

After a careful review of the record, the Commission finds that the

AJ correctly determined that complainant was not subjected to race and

sex discrimination with regard to the matter alleged. The Commission

notes that while the AJ stated, in part, that complainant failed

to establish a prima facie case because he did not show that he was

treated differently than similarly situated employees, complainant must

only present evidence which, if unrebutted, would support an inference

that the agency's actions resulted from discrimination. See O'Connor

v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996); Enforcement

Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice

No. 915.002, n. 4 (September 18, 1996). Nevertheless, the AJ correctly

determined that complainant failed to show that the agency's articulated

reason for the action, that is, complainant's failure to report a vehicle

accident, was a pretext for prohibited discrimination. We note that while

complainant asserted that other employees were rehired despite having

been involved in vehicle accidents, those individuals were reinstated

through the grievance process. Further, several of the individuals

cited were males, and one was Asian. We therefore discern no basis to

disturb the AJ's finding that complainant was not discriminated against

based upon his race and sex.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

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

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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 (Z1199)

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:

__________________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

__07-27-00________________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify

that the decision was mailed to claimant, claimant's representative

(if applicable), and the agency on:

_________________________

Date

_________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.