IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THERESA VUONG, : CIVIL ACTION

 : 04-3940

Plaintiff, :

 :

v. :

 :

J.C. PENNEY, et al. :

 :

Defendants. :

ORDER AND MEMORANDUM

NEWCOMER, S.J. May 31 , 2005

Presently before the Court is Defendants’ Motion for Summary

Judgment on this employment discrimination case. For the reasons

stated below, judgment is entered in favor of Defendants, and

against Plaintiff. The Court’s reasoning follows.

I. BACKGROUND

Plaintiff, a fifty-four year-old Vietnamese female, was

employed as a sales associate at Defendant JCPenney from March

11, 1999, to September 18, 2001, when she was terminated for

allegedly giving herself improper discounts on merchandise,

amongst other things. Plaintiff’s performance as a sales

associate during her tenure at JCPenney’s was sub-par; her

employment record is replete with reprimands from her superiors,

poor evaluations, and customer complaints. In her first

performance appraisal, entered roughly one year after the start

of her employment, Plaintiff received multiple low marks for her

service. In her second performance appraisal, taken roughly one

year later, Plaintiff again received below average marks. On a

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 1 of 23
1

Defendants note that a number of these accounts were opened because

Plaintiff gave false information to customers about the effect of opening a

JCPenney charge account. Clark Aff. at ¶ 18; White Aff. at ¶ 22.

2The Court recognizes that it cannot take a stance as to the credibility

of these assertions on summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (“In considering a motion for summary judgment, a

district court may not make credibility determinations or engage in any

weighing of the evidence; instead, the non-moving party's evidence is to be

2

follow-up performance appraisal, on July 31, 2001, Plaintiff

again was given a sub-par evaluation. Plaintiff also received

six written reprimands, for yelling at a store trainer, for not

following company policy and improperly giving a customer a

discount, for being rude to a co-worker in front of a customer,

for poor customer service, for yelling at the store operator, and

for improperly processing a return and creating a fictitious

invoice. There is also evidence that customers complained about

Plaintiff a number of times, in general for her alleged

incompetent counseling on store policies and discounts. Despite

her poor evaluations, Plaintiff received several service awards

during her employment, one for successfully convincing customers

to open JCPenney charge accounts.1 Plaintiff applied for a

number of promotions and transfers between November of 2000 and

July of 2001. Most of the positions that Plaintiff wished to be

promoted or transferred to allegedly did not exist. For example,

Plaintiff requested a transfer to the “Bridal/Special Occasion

Fashion Consultant and Wedding Planning” while Defendants claim

that JCPenney had no such position, or even a bridal department. 

Clark Aff. at ¶ 20.2 For the remainder of the

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 2 of 23
believed and all justifiable inferences are to be drawn in his favor.”).

3

promotions/transfers, Defendants claim that there were no

openings available, and moreover that the Company has a policy

whereby poorly performing associates will not be promoted. 

Plaintiff does not contest Defendants’ assertion that this is

company policy, nor does she contest that she received the

negative evaluations (although she claims that the poor

evaluations were unjustified). She also concedes that her belief

that there were open positions at all was mostly based on

unsubstantiated rumors. Vuong Dep. at 277-292. Plaintiff, who

is proceeding pro se, has offered virtually no evidence, nor

apparently sought any discovery, in aid of her case. What

statements she does make in defense of her case are conclusory,

unsupported by specific facts or evidence.

Following her July 31, 2001 appraisal, Plaintiff’s

performance allegedly did not improve, and she was counseled for

various mistakes during August of 2001, by her supervisor,

Antonia White. White Aff. at ¶ 17. On September 11, 2001,

Plaintiff allegedly placed two orders for herself, giving herself

a discount that only applied to a different category of goods. 

It is not disputed that it is a violation of JCPenney policy for

an associate to process his or her own sales, much less to grant

an inappropriate discount. Allegedly for this violation, for

(again) improperly giving a customer a discount in September, and

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 3 of 23
4

for generally poor performance, Plaintiff was terminated on

September 18, 2001. After various filings before state and

federal agencies, Plaintiff brought suit for discrimination in

this Court. She is representing herself, and claims that

Defendants discriminated against her on the basis of her age,

gender, and national origin when they denied her requests for

transfer and promotion, and when they terminated her employment. 

Plaintiff proceeds under the Pennsylvania Human Relations Act

(“PHRA”), Title VII, and the Age Discrimination in Employment Act

(“ADEA”). See 43 PA. CONS. STAT. § 959 (PHRA claims), 42 U.S.C. §

2000e et seq. (Title VII claims), 29 U.S.C. § 621 et seq. (ADEA

claims).

II. LEGAL STANDARD

A. Standard for a Motion for Summary Judgment

Summary judgment is proper when "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56. A fact is

material if it could change the outcome of the suit under

applicable law. Anderson, 477 U.S. at 248. An issue over the

facts is genuine only if there is a sufficient basis that would

allow a reasonable fact finder to rule for the non-moving party. 

Id. at 249. The non-moving party receives the benefit of all

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 4 of 23
3

It has been this Court’s experience that defense counsel in employment

cases too often oversimplify the fourth prong of McDonnell Douglas, presenting

the rule as requiring that a plaintiff show that s/he was replaced by a member

of an unprotected class in order to make their prima facie case. The law is

not quite so simple. See Pivirotto v. Innovative Systems, 191 F.3d 344, 356-

57 (3d Cir. 1999) (discussing the distinction, and distinguishing the current

state of the law from that presented by Defendants as such - in fact,

specifically distinguishing several of the older Third Circuit cases cited by

Defendants). On this point, the Court again reminds all Parties practicing

before it, that they must assure themselves that their arguments are roundly

5

reasonable inferences. Sempier v. Johnson & Higgins, 45 F.3d

724, 727 (3d Cir. 1995). A party defending against a motion for

summary judgment must set forth specific facts showing that there

is a genuine issue of material fact, and may not rely on mere

allegations or denials. FED. R. CIV. P. 56(e).

B. Title VII and ADEA Claims

Title VII and the ADEA prohibit discrimination based on

protected status in an employment setting. See 42 U.S.C. §

2000e-2(a)(1); 29 U.S.C. § 623(a)(1). The standard used for

evaluation of employment discrimination claims at summary

judgment is the familiar burden-shifting framework announced by

the Supreme Court in 1973. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Under the McDonnell Douglas test, Plaintiff

has the burden of presenting a prima facie case of

discrimination. She must prove (1) that she is a member of a

protected class, (2) that she was qualified for her position, (3)

that she suffered an adverse employment action, and (4)

additional evidence sufficient to raise an inference of

discrimination.3 If a plaintiff cannot prove her prima facie

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 5 of 23
and honestly supported by the most recent developments in the case law.

6

case, the defendant is entitled to judgment as a matter of law. 

See Pivirotto, 191 F.3d at 352 n.4. After a plaintiff presents

his or her prima facie case, the burden of production shifts to

the defendant, who must present a legitimate, non-discriminatory

explanation for its actions. See Pivirotto, 191 F.3d at 352,

n.4. Upon such a production, the plaintiff must prove by a

preponderance that the defendant’s explanation is but pretext for

a truly discriminatory motivation. See Id.

To pursue a discrimination claim under federal law, a

plaintiff must first file a complaint with the Equal Employment

Opportunity Commission (“EEOC”) within 180 days of the alleged

violation, or within 300 days of the alleged violation if

proceedings with a state agency have been initiated. See 42

U.S.C. §2000e-5(e)(1); 29 U.S.C. §626(d)(2).

C. Standard for PHRA Claims

The burden of proof for Plaintiff’s PHRA claims is identical

to those for her federal law claims. See Kelly v. Drexel

University, 94 F.3d 102, 105 (3d Cir. 1996) (“While the

Pennsylvania courts are not bound in their interpretations of

Pennsylvania law by federal interpretations of parallel

provisions in Title VII, the ADA, or the ADEA, its courts

nevertheless generally interpret the PHRA in accord with its

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 6 of 23
4

It bears noting that the question of when a discriminatory act takes

place determines the date that the time for complaining of it begins running. 

If an employee, as here, requests a promotion, the discrimination would take

place at the time that the request for promotion was denied - not the date it

was requested.

7

federal counterparts.”) (internal citations omitted). To seek

judicial relief under the PHRA, a plaintiff must file an

administrative complaint with the Pennsylvania Human Relations

Commission (“PHRC”) within 180 days of the allegedly

discriminatory act. See 43 PA. CONS. STAT. § 959(h).

III. DISCUSSION

A. Timeliness of PHRA Claims

Defendants argue that Plaintiff did not file her PHRA

complaint within 180 days of her termination, as required by

Commonwealth statute. The Commonwealth Courts have adopted a

very strict interpretation of the filing requirements of the

PHRA, and this Court is bound by that interpretation. See

Woodson v. Scott Paper, 109 F.3d 913, 925 (3d Cir. 1997) (holding

that individuals who do not comply with the strict requirements

of the PHRA are barred from utilizing its judicial remedies). 

Chronologically, Plaintiff’s last request for transfer or

promotion was on July 25, 2001.4 Exh. 19, Defts’ Mot’n (letter

from Plaintiff requesting promotion). It is not clear from the

record when this request was denied, so the Court will impute a

date of September 18, 2001 - the date of Plaintiff’s

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 7 of 23
5The Court imputes a date favorable to the Plaintiff

because, as the non-moving party, she is entitled to all the

benefit of all reasonable inferences arising from the record. 

Sempier, 45 F.3d at 727.

8

termination.5 The last day for Plaintiff to seek redress under

the PHRA for the denial of this promotion, and for her

termination, would be March 17, 2002.

Plaintiff contacted the PHRC by telephone sometime in

January of 2002, and sent a letter detailing her grievances

around January 28, 2002. Exh. 29, Defts’ Mot’n. The letter,

although signed, probably does not meet the requirements of 43

Pa. C.S. § 959(a) because it does not set forth the particulars

of Plaintiff’s discrimination claims. Plaintiff submitted

responses to a PHRC questionnaire, and an unsigned complaint,

both received by the PHRC on March 20, 2002. Plaintiff’s

Complaint bears a letterhead indicating that it was prepared on

March 17, 2002, although it contains no verification of truth. 

Plaintiff did not submit a verified amended complaint until late

October of 2003. This leaves the Court (and Plaintiff) in

something of a pickle. The documents which could arguably be

described as Plaintiff’s PHRC complaint were not received until

183 days after Plaintiff was terminated; and even then, they were

technically deficient. The Pennsylvania Supreme Court split

evenly on just this issue in 1989 - leaving the state of

Pennsylvania law such that technical defects in an initial

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 8 of 23
9

pleading are fatal, and incurable by untimely amendment. See

Commonwealth v. School Dist. of Philadelphia, 562 A.2d 313 (Pa.

1989) (unverified complaint could not be amended to include

verification after statutory time period elapsed). Because the

Court will grant judgment in favor of Defendants for other

reasons, there is no need to belabor this point too much. Two of

my colleagues have distinguished similar cases from the holding

in Commonwealth, and I will ascribe to the reasoning in those two

cases without further comment. See Valentin v. American Red

Cross, No. 01-6609, 2003 U.S. Dist. LEXIS 7612, at *4-6 (E.D. Pa.

Apr. 11, 2003) (plaintiff who timely amended her unverified

complaint allowed to proceed); Hayman v. WYXR-FM, No. 91-6444,

1992 U.S. Dist. LEXIS 12501 at *15-23 (E.D. Pa. Aug. 21, 1992)

(timely amendment sufficient to save technically deficient

complaint).

The Court does note, however, that only Plaintiff’s last

request for promotion, made on July 25, 2001, and her

termination, on September 18, 2001, are in play. The remainder

of Plaintiff’s claims fall incurably outside of the 180 day

limit, as the Court will employ Plaintiff’s first, unverified

complaint, dated March 17, 2002, as the document entitling

Plaintiff to the remedies of the PHRA.

B. Timeliness of Title VII and ADEA Claims

Plaintiff was required to submit her administrative charge

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 9 of 23
10

within 300 days of the challenged employment actions. See Watson

v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). Assuming

that Plaintiff submitted her administrative complaint on March

17, 2002, any claims accruing before May 24, 2001, are barred. 

Plaintiff’s November 29, 2001, and January 19, 2001 requests for

promotion are therefore legally improper predicates for this

action, as these requests were denied prior to May 24, 2001.

C. Plaintiff’s Remaining Discrimination Claims

The Court has many reasons for granting Defendants’ Motion,

and for Plaintiff’s benefit, it will discuss each of them,

despite the fact that any one is in itself enough to justify

entering judgment for Defendants. At the outset, Plaintiff has

not offered any specific facts or competent evidence in defense

of her claim. FED. R. CIV. P. 56(e) compels entry of summary

judgment against a party, where appropriate, if they do not

adequately defend their position. Here, Plaintiff has not. But

this is only the beginning of the raft of reasons that

Plaintiff’s claims fail.

Plaintiff claims “[t]he primary cause of discrimination

based on Plaintiff’s identification of birth year which printed

on Plaintiff’s driver license, which indicated the birth year of

December 16, 1950.” Pltf’s Resp. At 5. Plaintiff also alleges

gender and national origin discrimination. Plaintiff seeks

relief for the denial of her requests for transfer and promotion,

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 10 of 23
11

and for her termination. Defendants argue that Plaintiff was not

qualified for the jobs she sought due to the epic volume of

complaints, poor evaluations, and reprimands her work generated,

that there is no evidence raising the specter of discrimination

in any of Defendants’ decisions, and that the reason for

Plaintiff’s termination - essentially, that she was stealing from

Defendants - was perfectly and irrefutably legitimate. 

Defendants demand judgment in their favor on Plaintiff’s claims

and the Court finds that they are entitled to just that.

Plaintiff’s case is short on evidence and long on

accusations. In her deposition, Plaintiff stated that Defendant

Verma, Plaintiff’s former (non-supervising) co-worker, a fiftyone year old female of Indian descent, told her that Plaintiff

was “getting old” approximately twelve times. Plaintiff also

claims that Defendant Verma told Plaintiff that JCPenney is

looking for “younger people with energy.” Defendant Verma denies

making these comments.

Plaintiff’s national origin discrimination claim is based on

an allegation that her supervisor, Defendant White, told

Plaintiff not to answer the phone because of her Vietnamese

accent. Plaintiff also claims that Defendant Tuckowski, the

store manager at the location Plaintiff was employed at, told her

that her generosity and country does not fit in with JCPenney,

and that Defendant Verma told her that employees in the

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 11 of 23
12

department need to be “American born.”

Plaintiff’s sex discrimination claim is based on her

allegation that Defendant Verma, who was not a supervisor of

Plaintiff’s, told her that JCPenney was looking for male

managers. Plaintiff has not provided Defendants or the Court

with the times and dates of the alleged discriminatory conduct. 

The Court will impute that the last of the allegedly

discriminatory comments was made on September 18, 2001 - the date

of Plaintiff’s termination.

At the outset, the Court has difficulty accepting the

premise that Plaintiff was qualified to perform her job or any of

those that she sought. Although she did receive certain awards,

her employment record is replete with complaints, low

evaluations, written and oral reprimands, and all of the other

hallmarks of incompetence one might expect from an unqualified

employee. Of course, Plaintiff contends that she was qualified

to perform her job - and she has appended her awards to every

single filing with this Court, from her Complaint to her numerous

discovery motions, as if to drive that point home even further. 

The instant Motion is one for summary judgment, and the Court is

bound to resolve all disputed issues of fact in favor of the nonmoving party - meaning that Plaintiff has met her burden on this

prong.

Defendants next argue that, because Plaintiff cannot prove

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 12 of 23
13

that any similarly situated individuals not in her protected

class were treated more favorably, she fails prong four of the

McDonnell Douglas test. This, again, is an overly-simplistic

view of the law. That said, Plaintiff has not offered evidence

that any other individuals were offered the positions that she

desired but did not receive. In fact, it is not disputed that a

number of these positions either (1) never existed or (2) were

not actually accepting new applicants. Plaintiff has not offered

any specific facts to contradict either of these statements, and

stated that her allegation that the positions existed was based

on rumor and gossip. See Vuong Dep. at 277-292. As Plaintiff

failed to levy her EEOC charge before 300 days had elapsed, she

cannot now seek recourse for her November 29, 2000 or January 19,

2001 requests for transfer or promotion. The remaining four

requests, and her termination, are theoretically in play. At the

outset, the Court notes that Plaintiff has offered basically no

evidence that raises a likelihood of discrimination during these

five adverse employment actions. However, because Plaintiff has

alleged that a number of arguable discriminatory comments were

made to her during the course of her employment (at least with

respect to some of the promotions she sought - although not such

as might raise an inference of discrimination with respect to her

ultimate termination), the Court will proceed to the next step in

the McDonnell Douglas framework.

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 13 of 23
14

Plaintiff did not receive the other promotions or transfers

that she sought. Defendants offer several reasons for this. 

They are, in no particular order, (1) that it is JCPenney policy

that associates with poor evaluations do not receive promotions,

(2) that the positions simply did not exist, or that they were

not accepting applicants, and (3) that Plaintiff was essentially

stealing from her employer by giving herself improper discounts

while checking her own purchases out - itself a violation of

company policy. Plaintiff does not offer any facts disputing

that it is company policy to not transfer or promote a poorly

performing employee. She also has no specific facts showing that

any of the positions that she sought actually existed or were

seeking applicants. She denies stealing from work, but does not

actually seem to dispute that her employer had a good faith

believe that she was giving herself improper discounts. The

Court’s analysis should, of course, stop here, as Plaintiff has

not identified any pretextual reason for Defendants’ actions. 

But there is more.

The keystone of Plaintiff’s case, besides her unsupported

allegations of discrimination, are a number of comments she

claims were made by her colleagues and superiors. All of her

colleagues deny making these statements, but credibility is an

issue for the jury, not the Court, so the Court will analyze the

facts before it in the light most favorable to Plaintiff.

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 14 of 23
15

The entire basis of Plaintiff’s sex discrimination claim, in

her own words, is that her co-worker, Defendant Verma, told her

that she “is not obtaining that position in the Dress department,

neither as a manager, neither as the assistant manager, neither

as a specialist, because this time Mr. Clark and management team

believe - they believe - that is would be best for them to hire a

male.” Vuong Dep. at 301. There is no evidence that there was

an opening in the dress department at the time Plaintiff applied

for the promotion, nor is there any evidence that anyone, much

less a similarly-situated member of an unprotected class,

received the job. Plaintiff claims that “a nice young gentleman”

who “freshly graduated from college” was hired for the job in the

dress department, but there is absolutely no evidence, besides

Plaintiff’s conclusory, unsupported allegations, that any of this

ever happened. Vuong Dep. at 284. Quite the contrary, the

affidavit of the store manager at the time, Defendant Clark,

states that there were no openings in the dress department at the

time of Plaintiff’s request, and Plaintiff has not offered the

Court any actual facts showing that (1) any of the positions she

sought existed or were vacant, (2) that she was qualified for any

of these positions, or (3) that anyone, much less an equallyqualified member of a non-protected class, received the job. 

Much more importantly, Plaintiff has not offered facts to dispute

Defendants’ contention that Plaintiff could not have been

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 15 of 23
6The Court notes that this undisputed number carries weight with respect

to Plaintiff’s claim that gender discrimination was the cause of her

termination - obviously, it does not matter what the gender mix of Plaintiff’s

current department was if she was seeking transfer to another department.

16

promoted or transferred, per store policy, given her poor

performance record. Clark Aff. at ¶¶ 20-23.

Plaintiff’s sex discrimination claim fails for a number of

reasons. First, Plaintiff has not produced evidence contesting

Defendants’ position that there were never any openings available

in the positions that she sought, when those positions did indeed

exist. Second, there is no evidence raising an inference that

Defendants’ actions were discriminatory with respect to

Plaintiff’s gender. Indeed, during Plaintiff’s time at the

Catalog Department, there were fourteen female employees, and

only three men, substantially reducing any inference of gender

discrimination with respect to Plaintiff’s termination.6

Plaintiff has offered no evidence that equally qualified men were

treated better or differently in seeking promotions, transfers,

or with regard to her termination, nor has she identified or

offered the credentials of any individual who received the

promotion that she sought, or who was not fired after committing

acts such as those alleged to have been committed by Plaintiff. 

Plaintiff has, therefore, failed to prove her prima facie case on

her gender discrimination claim. Even assuming that Plaintiff

had made the requisite showing, however, she has not demonstrated

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 16 of 23
17

that Defendants’ proffered legitimate reason was pretextual. In

fact, virtually all evidence indicates that Plaintiff was an

extremely poor employee in a department that was staffed almost

exclusively with members of her own protected class. Plaintiff

does not dispute that Defendants’ policy prevents poorly

performing employees from being promoted, and she offers no

evidence of any employee being treated differently then her. She

cannot offer any evidence to show that discrimination was the

cause of Defendants’ decision to deny her requests for transfer

or promotion to non-existent or non-vacant positions. And, even

assuming that these positions did exist, Plaintiff again does not

dispute that Defendants’ policy was to not promote

underperforming employees. Her sex discrimination claim must

fail.

Plaintiff’s age discrimination claim is also faulty. 

Plaintiff has alleged that Defendant Verma, who was not her

supervisor, repeatedly told Plaintiff that she was too old, or

that Defendants were looking for someone young to fill the

positions she sought. Although the Court may not make

credibility determinations at summary judgment, it bears noting,

as this is a public record, that Defendant Verma denies making

any such comments. Assuming for the moment that the positions

Plaintiff sought were vacant or that they existed (and there is

no evidence allowing such an assumption), and that the Court

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 17 of 23
18

could accept Plaintiff’s statements as evidence generating an

inference of discrimination (an unlikely circumstance, given the

fact that more than half of Plaintiff’s co-workers were over 40,

and given Defendants’ other explanations for their refusal to

promote or transfer Plaintiff - most notably that the positions

that she sought never existed), Plaintiff would still be stymied

by the total absence of any evidence contradicting Defendants’

proffered explanation of their actions. Plaintiff has not

offered evidence, besides her own beliefs (1) that the positions

even existed, (2) that they were filled by anyone, or (3) that

the basis for Defendants’ refusal to give the job to her was

related to her age, as opposed to her performance record.

Plaintiff’s national origin discrimination claim is faulty

for much the same reason as her other claims. The only support

Plaintiff offers for her national origin discrimination claim is

that Defendant Tuckowski allegedly told her that the generosity

of her people did not comport with JCPenney’s sales philosophy,

and that Defendant White instructed Plaintiff not to answer the

phone due to her accent. Plaintiff was reprimanded many, many

times for improperly giving customers discounts. In fact, the

uncontradicted statement of Defendant Clark is that Plaintiff’s

customer service awards, given when customers compliment a sales

associate, were virtually all due to Plaintiff’s improper

discounting of merchandise. Clark Aff. at ¶¶ 17-18. Assuming

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 18 of 23
19

that it is true that Defendant Tuckowski blamed Plaintiff’s

national origin for her generosity, Plaintiff does not contest

that she was very generous with customers. Vuong Dep. at 267. 

Indeed, Plaintiff’s allegation necessarily implicitly accepts

that she was repeatedly reprimanded, and ultimately terminated,

for giving excessive discounts to customers. It goes without

saying that excessive, unauthorized discounting of merchandise is

unacceptable (when in contravention of store policy, as is the

uncontested case here) due to its effect on retail bottom lines.

There is no real dispute, in other words, as to the cause of

Plaintiff’s repeated reprimands and (at least one reason for

Plaintiff’s) termination - it was her excessive, inappropriate

discounting. That her manager may have ignorantly assigned the

generosity to people of Plaintiff’s race does not matter - his

statement does not render inconsistent either Plaintiff’s or

Defendants’ version of events.

Plaintiff marshals two last statements in support of her

national origin claim - that Defendant Verma informed her that

Defendants had to have all Americans in their department. Vuong

Dep. at 297. It bears noting that Defendant Verma is herself of

Indian descent. Likewise, more than half of Plaintiff’s coworkers were not American born. Clark Aff. at ¶ 12. Plaintiff

has offered no evidence or sworn statement that similarly

situated members of an unprotected class were treated

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 19 of 23
20

differently, or really that she suffered any disadvantage due to

her national origin. Defendant Verma’s comments are nothing more

than stray remarks made by a non-supervising co-worker. See

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d

Cir. 1992) (“Stray remarks by non-decision makers or by decision

makers unrelated to the decision process are rarely given great

weight, particularly if they were made temporally remote from the

date of decision.”).

Plaintiff also complains that Defendant White instructed her

not to answer the telephone due to her accent. Although this

could theoretically form sort of adverse action, or negatively

impact Plaintiff’s performance reviews such as to prevent her

from receiving transfers or promotions, it does not cast doubt,

if true, on Defendants’ explanations for their actions. In other

words, although these statements could satisfy prong four of

McDonnell Douglas, they do nothing to refute Defendants’

proffered reasons for their actions. Plaintiff was repeatedly

disciplined for giving poor information to customers, for giving

customers improper discounts, and ultimately for violating

company policy by giving herself improper discounts. It is for

these reasons that she was terminated, and (for the most part)

for these reasons that she would not have been promoted had the

jobs she sought existed.

All of Plaintiff’s responses to Defendants’ proffered reason

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 20 of 23
21

amount to nothing more than factually unsupported allegations

that she was a victim of discrimination. In response to

Defendants’ explanations, Plaintiff offers no specific facts in

proof of her claims, as required by FED. R. CIV. P. 56(e). The

Court has carefully scrutinized the record, in light of

Plaintiff’s failure to offer any competent evidence in defense of

her case, and it has not found any factual disputes sufficient to

defeat Defendants’ Motion. Judgment must be entered for

Defendants.

D. Plaintiff’s Claims Against the Individual Defendants

Plaintiff has named a number of individuals in her case;

Defendants White, Clark, Tuckowski, and Verma. All of these

Defendants must be dismissed, in their individual capacity,

because neither Title VII, ADEA, nor the PHRA contain provisions

for individual liability. See Sheridan v. E.I. Dupont De Nemours

& Co., 100 F.3d 1061, 1078 (3d Cir. 1996) (no individual

liability under Title VII); Cohen v. Temple Physicians, Inc., 11

F.Supp. 2d 733, 736-37 (E.D. Pa. 1998) (“Title VII, the ADA, ADEA

and PHRA are all to be interpreted consistently with one another

such that individual employees are not to be held liable under

these Acts unless a supervisory employee can be shown to have

aided and abetted the employer's discriminatory actions in

violation of the PHRA.”). The PHRA does contain an “aiding and

abetting” clause, but Plaintiff did not name the individuals as

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 21 of 23
22

Respondents in her initial PHRA complaint, meaning that her

claims against these individuals are time-barred under the

analysis discussed above.

IV. CONCLUSION

For the reasons stated above, judgment is entered in favor

of Defendants and against Plaintiff. An appropriate Order

follows.

/S Clarence C. Newcomer 

 United States District Judge

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 22 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THERESA VUONG, : CIVIL ACTION

 : 04-3940

Plaintiff, :

 :

v. :

 :

J.C. PENNEY, et al. :

 :

Defendants. :

O R D E R

AND NOW, this 31st day of May, 2005, upon consideration

of Defendants’ Motion for Summary Judgment (Doc. 28), Defendants’

Motion for Leave to Exceed Page Limits (Doc. 29), and Plaintiff’s

Response, it is hereby ORDERED that Defendants’ Motions are

GRANTED. Defendants may file excess pages. Defendants’ Motion

for Summary Judgment is GRANTED; judgment is ENTERED in favor of

Defendants and against Plaintiff. The clerk shall mark this case

CLOSED for statistical purposes. Any and all outstanding Motions

are DENIED as MOOT.

AND IT IS SO ORDERED.

/S Clarence C. Newcomer 

 United States District Judge

Case 2:04-cv-03940-CN Document 35 Filed 06/01/05 Page 23 of 23