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.