Theresa Vuong v. Management of J.c. Penney’s Co., No. 500 Lehigh Valley Mall/whitehall-Pa 18052

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO: 05-3316
THERESA VUONG,
Appellant
v.
MANAGEMENT OF J.C. PENNEY’S CO., NO. 500 LEHIGH
VALLEY MALL/WHITEHALL-PA 18052; ANTONIA WHITE;
CHITRAM VERMA; DENNIS TUCKOWSKI; DAN CLARK
_______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-03940)
Senior District Judge: Honorable Clarence C. Newcomer
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 27, 2006
BEFORE: FISHER, ALDISERT and WEIS, Circuit Judges
(Filed: February 7, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Appellant Theresa Vuong appeals pro se from the District Court’s grant of
the Defendants’ motion for summary judgment on her complaint alleging discrimination
under the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. §§ 951-
963 (PHRA), Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (sex and national origin

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discrimination), and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§
621, et. seq. We will affirm.
I.
The parties are familiar with the facts, thus, we will only briefly summarize
them here. Vuong, a fifty-five year-old Vietnamese immigrant, was hired by JC Penney
in 1998 to work in the Catalog Department. Beginning in November of 2000, Vuong
requested a number of promotions and department transfers. Management denied her
requests. Vuong alleges that she was a good employee, receiving two certificates of
excellence for convincing customers to open charge accounts. However, she consistently
scored below expectations in her annual performance evaluations. For example, in March
2001, she was graded “well below” expectations in eight out of sixteen categories. The
evaluation also reflects that Vuong failed to adhere to store policies and had difficulty
working with others in the department. A followup review on July 31, 2001, found that
she fabricated an invoice and often disagreed with other members of the department. The
review further specified that “Theresa has 30 days to show improvement or she will be
dismissed for unsatisfactory performance.” JC Penney terminated Vuong’s employment
on September 18, 2001.
On March 17, 2002, she mailed what could be considered a complaint to the
Pennsylvania Human Relations Commission (PHRC). The PHRC declined to take action
and issued a right to sue letter. Vuong then filed the current suit. She alleges that during
the course of her employment her former supervisor, Antonia White, told her not to

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1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the grant of a motion for summary judgment and apply the same test as the District
Court. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 285 (3d Cir. 2003).
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answer the phone because of her Vietnamese accent, and that other management
personnel explained that her foreign culture did not fit in with the department. She also
claims that a co-worker, who never possessed employment decision-making authority,
told her that she was too old and that the company prefers to hire younger males. The
District Court assumed that Vuong could make out a prima facie case under the summary
judgment standard, but ruled that in every instance, she failed to counter the Defendants’
legitimate non-discriminatory reasons for their actions. Vuong appealed.1
II.
At the outset, we agree with the District Court that several of Vuong’s
claims are barred because she failed to timely exhaust her administrative remedies. See
Woodson v. Scott Paper Co., 109 F.3d 913, 925-26 (3d Cir. 1997) (explaining that a
PHRA claim is barred unless brought before the PHRC within 180 days of the incident);
Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (explaining that ADEA
and Title VII claims must be brought within 300 days of the incident). However, even if
that were not the case, all of Vuong’s claims fail on the merits.
We analyze Vuong’s claims under the burden shifting framework
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See also
Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (holding PHRA claims can be

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treated coextensively with Title VII and ADEA claims). Assuming that Vuong
establishes a prima facie case, the burden shifts to the Appellees to state a legitimate non-
discriminatory reason for the employment action. See McDonnell Douglas, 411 U.S. at
804-05. The Appellees give multiple reasons for their conduct: (1) Vuong requested
transfers to positions that did not exist or were not available at the time; (2) JC Penney
has a policy prohibiting the promotion or transfer of an employee if she is not performing
at a satisfactory level in her current position; (3) Vuong violated store policies and
procedures; and (4) Vuong failed to improve her performance.
In order to survive a motion for summary judgment, Vuong must establish a
reasonable inference that the Appellees’ explanations are pretextual and unworthy of
credence. See Kautz v. Met-Pro Corp., 412 F.3d 463, 467-68 (3d Cir. 2005) (citations
omitted). Vuong fails to present anything more than broad accusations suggesting a
conspiracy to falsify the complaints and performance evaluations. She claims that White,
other former-coworkers, and even customers conspired to falsely accuse her of poor work
and policy violations. However, she provides no evidence in the form of affidavits,
depositions, or otherwise that any of her accusations have merit.
With respect to her promotion and transfer claims, she fails to argue or
submit any evidence showing that the positions she requested actually existed or had
openings at the times she applied. She also fails to challenge JC Penney’s policy of not
transferring or promoting poorly performing associates, or that an exception to this rule
was ever made. While Vuong does submit evidence that she abided by store policy in

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giving herself a discount on September 11, 2001, she fails to refute the numerous other
alleged policy violations put forth by the Appellees.
For the foregoing reasons, we are simply unable to infer that any of the
Appellees’ reasons for their actions are pretextual. Accordingly, we will affirm the
judgment of the District Court.

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