0120091762
08-27-2009
Sofjan Bahaudin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Sofjan Bahaudin,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091762
Agency No. ARCELA05MAR09179
Hearing No. 480-2006-00037X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's February 9, 2009 final action concerning his formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On May 23, 2005, complainant filed the instant formal complaint. Therein, complainant claimed that he was subjected to unlawful employment discrimination on the bases of race (Asian American) and in reprisal for prior protected activity when:
1. the agency did not comply with an EEOC Office of Federal Operations (OFO) decision dated December 22, 2004, which ordered the agency to place him in a GS-13 position with comparable duties and salary;
2. on January 5, 2005, his supervisor (S1) threatened to discipline him for failing to sign in and sign out.
3. on January 6, 2005, he was forced to stay at home due to demeaning working conditions at Terminal Island that were not in line with the December 22, 2004 OFO decision, referenced above;
4. on January 18, 2005, his request for an investigation into the threats made by S1 was not acted upon by management;
5. on January 25, 2005, he was accused of falsifying attendance records;
6. on January 31, 2005, he was given a Notice of Proposed Removal;
7. on March 12, 2005, he was given a Removal Notice;
8. management did not take preventative measures to avoid discrimination and retaliation against him after he sent emails on December 29, 2004 to [a named Colonel] regarding the December 22, 2004 OFO decision;
9. management did not act on his requests for an investigation of harassment by S1 and to be removed from S1's supervision;
10. [District Counsel] restricted him from communicating with management but did not investigate his complaint; and
11. neither [District Counsel] nor [a named employee in the agency's Office of Counsel] contacted his representative after he notified them that he would stay at home.
Following the agency's investigation into the complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 27, 2009, the AJ issued a decision dismissing complainant's complaint. The AJ dismissed claims 1 and 3 on the grounds of failure to comply with the EEO order. Specifically, the AJ determined that claims 1 and 3 should have been pursued through petition seeking enforcement, not an EEO complaint. The AJ dismissed claim 6 on the grounds of proposed personnel action pursuant to 29 C.F.R. � 1614.107(a)(5). Regarding claims 2, 4, 5, 6, 7 and 9, the AJ noted that complainant appealed his removal to the MSPB on May 7, 2007. The AJ further noted that in an initial decision dated May 29, 2008, the MSPB upheld complainant's removal from agency employment. The AJ found that on January 28, 2009, the Commission denied complainant's petition for review of the MSPB decision. The AJ determined that since these claims were actually adjudicated and necessary to the judgment of the MSPB, complainant was barred by the doctrine of collateral estoppel from re-litigating these claims.
Further, the AJ dismissed claims 8 and 11, on the grounds that these claims were subsumed within other dismissed claims raised in the instant complaint. Finally, the AJ dismissed claim 10 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The record reflects that after the agency's final action implementing the AJ's dismissal of the instant complaint, complainant filed a civil action (identified as Civil Action No. CV-09-1484) in the United States District Court for the Central District for California on March 2, 2009. The record further discloses that the claims raised therein are the same as those raised in the instant complaint. Specifically, complainant alleged that the agency removed him from his position as a Civil Engineer effective on or about March 18, 2005 "for the charges of insubordination; absence from regularly scheduled tour of duty which has not been authorized; failure to follow established leave procedures; falsifying information on a time record; and deliberate concealment of this action and discourtesy."
On appeal, complainant argues that his civil action is not related to the instant case. Specifically, complainant states "I have already stated in my petition dated April1, 2009 that the MSPB action is being appealed in a Federal District Court. This information only confirms my statement and is not new evidence."1
In response, the agency argues that all of the allegedly improper agency actions are inextricably intertwined with complainant's removal, and must be regarded as within the scope of the matter decided in the MSPB proceedings.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October 25, 1988).
Accordingly, complainant's appeal is hereby DISMISSED. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960, Washington, DC 20013. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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, Director
Office of Federal Operations
August 27, 2009
_________________
Date
1 In addition to his appeal, complainant submitted a copy of his petition for enforcement dated April 1, 2009 for a separate case (identified as 01A41223). This petition is currently under review by the Compliance unit of the Commission's Office of Federal Operations.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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