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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2
0320090012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0320090012