Sofjan Bahaudin, Petitioner,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 28, 2009
0320090012 (E.E.O.C. Jan. 28, 2009)

0320090012

01-28-2009

Sofjan Bahaudin, Petitioner, v. Pete Geren, Secretary, Department of the Army, Agency.


Sofjan Bahaudin,

Petitioner,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Petition No. 0320090012

MSPB No. SF0752070559I1

DECISION

Petitioner filed a timely petition with the Equal Employment Opportunity

Commission asking for review of a Final Order issued by the Merit

Systems Protection Board (MSPB) concerning his claim of discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.

Petitioner filed an appeal with the MSPB challenging the agency's decision

terminating him from his position of Civil Engineer in the San Andreas

Resident Office, Los Angeles, California, effective March 18, 2005.

Petitioner had originally filed a mixed case complaint with the agency

alleging that his removal was the result of unlawful retaliation for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964.

When the agency failed to issue a final decision on his complaint within

the requisite 120 days, petitioner appealed the matter to the MSPB,

again asserting unlawful retaliation.

An MSPB administrative judge (AJ) issued a decision upholding the charges

against petitioner resulting in his termination. The MSPB AJ further

concluded that petitioner did not show that the removal occurred because

of his prior protected EEO activities, or that there was a nexus between

the protected activity and his removal. The AJ concluded that even if

petitioner had established a prima facie case of reprisal, the agency

produced sufficient evidence to show that it would have taken the same

action even absent the protected activity. Petitioner sought review by

the full Board, which denied his petition. Petitioner then filed the

instant petition with the Commission.

The record indicates that petitioner had been employed by the agency

since 1981. In 2000, this Commission affirmed the determination by one

of its administrative judges that petitioner was unlawfully retaliated

against for engaging in prior protected EEO activity when he was not

selected for a GS-13 engineer position in January 1995. The agency was

ordered, among other things, to pay him at the GS-13 level until he could

be placed in an appropriate GS-13 position. Bauhaudin v. Department of

the Army, EEOC Appeal No. 01993594 (September 13, 2000). Later, in a

petition for enforcement, this Commission determined that the agency was

in full compliance with its order when it offered petitioner a GS-13

engineer position on October 12, 2000. Bauhaudin v. Department of the

Army, EEOC Petition No. 04A10019 (August 5, 2003).

Subsequently, in a separate proceeding, the Commission found that the

agency engaged in further acts of unlawful retaliation when it reassigned

petitioner in October 1996. Bauhaudin v. Department of the Army, EEOC

Appeal No. 01A41223 (December 22, 2004). The agency was ordered to offer

petitioner an engineer position in the field. Finally, in a third case,

petitioner alleged, in pertinent part, that the agency failed to offer

him a position that complied with his medical restrictions. In Bauhaudin

v. Department of the Army, EEOC Appeal No. 01A51155 (January 6, 2006),

request for reconsideration denied, EEOC Request No. 05A60437 (March 3,

2006), this Commission affirmed an administrative judge's finding of no

discrimination/retaliation.

In the instant matter, on January 31, 2005, complainant was issued a

notice of proposed removal on the charges of insubordination, absence

without official leave, failure to follow established leave procedures,

falsifying information on a time record, deliberate concealment, and

discourtesy for incidents which occurred during the month of January 2005.

At the time of the events at issue, petitioner worked at the agency's

Terminal Island Office (TIO), which was located approximately 75 miles

away from the office where his supervisor worked. Usually, complainant

and a co-worker were the only employees working in the TIO trailer.

Briefly, on January 4, 2005, it was alleged that petitioner left work

after working only 6.5 hours of a 10-hour shift, without requesting or

receiving approved leave. Petitioner had previously been instructed

that any deviations from his alternative work schedule (10 hours/4 days)

had to be approved by certain supervisors within his chain of command.

The record also establishes that petitioner did not sign out when he

left, although it was established procedure to sign in and out of work.

Petitioner's departure was witnessed by a co-worker, who asserts he

asked petitioner if he was returning and was told no. Petitioner later

claimed he left the office as part of his work responsibilities to view

the progress on a construction site. He alleges he later returned to

the office after his co-worker had already departed. Petitioner did

concede, however, that he turned off his office lights and took his

personal vehicle to the site rather than the government vehicle because

he could not find the keys to that vehicle. The MSPB AJ determined

that petitioner's explanations for his actions were "incomplete and

inherently improbable," noting petitioner never explained exactly what

he was observing, and agency management maintained there was "nothing

happening" in the field at the time. Moreover, the AJ found that

petitioner's decision to depart in his personal vehicle undermined his

explanation. The AJ noted that petitioner had earlier offered another

unrelated explanation for his absence-that he left to avoid friction

with his co-worker.

The proposal to remove also alleges that on January 5 and 6, 2005,

petitioner failed to account for his lunch break as required when

submitting his time sheets, claiming he was working. The AJ determined

that complainant's time sheets confirmed this charge.

The proposal to remove also alleged that on January 5, 2005, petitioner

was directed to fill in his daily sign in and out sheets, including the

days earlier in that week. The next day, when petitioner's co-worker

asked him about the location of the timesheets (the coworker also had to

sign in and out on a common timesheet with petitioner) he said petitioner

told him that they "no longer existed" and that "he had destroyed them."

The co-worker further stated that petitioner told him to go ahead and

report the missing timesheets, just like he had earlier reported that

complainant was not signing in and out properly. In fact, it appears that

petitioner actually did not destroy the timesheets, but took them home.

The proposal also alleged that petitioner did not follow his approved

work schedule, and deviated from that schedule without seeking proper

supervisory approval. The AJ found that the record supported the agency's

contentions with regard to these matters.

The proposed removal also contended that on January 5-6, 2005, petitioner

failed to respond to "numerous voice mail and e-mail messages" and a

facsimile message ordering petitioner to call his supervisor regarding

these time and attendance matters. The supervisor stated that he called

petitioner's coworker and confirmed that petitioner was in the office

when these messages were sent. Petitioner admitted he received the

messages but decided not to respond because he believed the supervisor was

"attacking my honesty and integrity." Finally, the supervisor said he

telephoned petitioner at home and sent an email to his personal account

on January 7, 2005, when petitioner failed to report for duty. He left

similar messages on January 13, 2005, when petitioner again did not

report for duty. Petitioner did not reply to any of these instructions

to contact his supervisor. The agency also charged petitioner as absent

without official leave (AWOL) for his absences on January 7 and 13.1

On January 18, 2005, the supervisor traveled to petitioner's office to

attempt a face-to-face meeting with petitioner, but petitioner again did

not report for work on that date. Petitioner also did not report for work

on Janaury 19, and he was placed in AWOL status for the two days. The

supervisor stated that he continued these efforts to contact petitioner

through January 20, 2005, without success. Petitioner does not dispute

that he did not contact his supervisor, but states that on January 18,

2005, he contacted his supervisor's superior and asked to be assigned

to a new supervisor. The MSPB AJ concluded that the evidence of record

supported the agency's contentions in these matters.

Finally, the agency alleged that on January 6, 2005, petitioner exhibited

"rude, abusive and offensive" behavior towards his co-worker when he

called him a "rat" and told him that others who had crossed petitioner

had "not fared well as a result," and that his supervisor would soon

be joining those ranks and was a "god-damn jerk." The MSPB AJ found

the co-worker's recitation of these events to be more credible than

petitioner's denial of them.

The MSPB AJ concluded that the weight of the evidence supported the

agency's charges resulting in his removal. The AJ determined that it

was petitioner's actions, not retaliatory animus on the part of agency

officials, that resulted in the decision to take action against him.

EEOC regulations provide that the Commission has jurisdiction over

mixed case complaints on which the MSPB has issued a decision that

makes determinations on allegations of discrimination. 29 C.F.R. �

1614.303 et seq. The Commission must determine whether the decision of

the MSPB with respect to the allegation of discrimination constitutes a

correct interpretation of any applicable law, rule, regulation or policy

directive, and is supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c).

In the instant case, petitioner relies heavily on prior EEO cases which

resulted in findings of discrimination against the agency. Nonetheless,

the Commission agrees with the conclusions of the MSPB that petitioner's

removal was based on his behavior, not because of his prior protected

activity. Petitioner has not shown that the agency's reasons for its

actions were a pretext for unlawful reprisal.

Based upon a thorough review of the record, it is the decision of

the Commission to concur with the final decision of the MSPB finding

no discrimination. The Commission finds that the MSPB's decision

constitutes a correct interpretation of the laws, rules, regulations,

and policies governing this matter and is supported by the evidence in

the record as a whole.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of 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.

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

January 28, 2009

__________________

Date

1 Petitioner had requested leave on January 11-12 and was told it was

approved if he submitted a leave slip. However, he never completed and

submitted the leave form, and this was also part of the specifications

in the proposed removal notice.

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0320090012

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090012