Sofjan Bahaudin, Petitioner,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 21, 2005
04a50031 (E.E.O.C. Oct. 21, 2005)

04a50031

10-21-2005

Sofjan Bahaudin, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Sofjan Bahaudin v. Department of the Army

04A50031

October 21, 2005

.

Sofjan Bahaudin,

Petitioner,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Petition No. 04A50031

Request No. 05A50566

Agency No. AVKCFO9610G0350

Hearing No. 340-98-3648X

DECISION ON A PETITION FOR CLARIFICATION

On September 23, 2005, the Equal Employment Opportunity Commission

(EEOC or Commission) docketed a petition for clarification to examine

the order set forth in Sofjan Bahaudin v. Department of the Army, EEOC

Appeal No. 01A41223 (December 22, 2004), req. for reconsideration denied,

EEOC Request No. 05A50566 (July 19, 2005). The agency's petition for

clarification is accepted by the Commission pursuant to 29 C.F.R. �

1614.503.

Petitioner filed a complaint in which he alleged that the agency

discriminated against him on the bases of race (Asian), national origin

(Indonesia), and reprisal for prior EEO activity. Petitioner requested

a hearing before an EEOC Administrative Judge (AJ). The AJ found that

petitioner establish that the agency retaliated against him. Accordingly,

the AJ concluded that the agency engaged in unlawful retaliation and

awarded complainant the following remedies: (1) place complainant in a

suitable position in the field at no lower a grade than that indicated

in the Commission's Petition for Enforcement, Petition No. 04A10019; (2)

appropriate front and back pay; (3) $ 110,000 in non-pecuniary damages;

(4) attorney fees and costs totaling $ 79,258.71; and (5) posting of

a notice. The agency issued its final action implementing the AJ's

decision including the remedies.

Petitioner appealed to the Commission arguing that the agency has failed

to comply with its final action. In EEOC Appeal No. 01A41223, the

Commission found that the agency offered complainant a GS-13 position,

however, it was not comparable to a General Engineer position based on

skills or responsibilities. Accordingly, we found that the agency has

not complied with the AJ's order which it adopted in its final action.

The order also specified that the agency: (1) identify and place

complainant in a field position with comparable duties and salary in

consultation with complainant at a minimum of a GS-13; (2) provide

complainant with front pay until such a GS-13 position in the field is

offered; and (3) determine the appropriate amount of back pay.<1>

On September 23, 2005, the agency submitted the petition for enforcement

at issue. The agency seeks clarification on the Commission's orders.

In particular, for the first time, the agency informed the Commission

that petitioner was removed from federal service effective March 18, 2005.

The agency requested that back pay be limited to the date of the removal.

Additionally, the agency argued that reassignment to a GS-13 field

position is rendered moot by the removal action which is unrelated to

the instant matter.

The Commission grants the agency's petition for clarification. Upon

review, the agency correctly determined that the Commission's order to

place petitioner in a field position at a minimum of a GS-13 is rendered

moot in light of the March 18, 2005 removal action. Further, we find

that back pay is limited to half from February 23, 2000 through June 12,

2000, and full reimbursement from June 12, 2000 through March 18, 2005,

the effective date of the removal action.<2>

ORDER (D0403)

The agency is ordered to determine the appropriate amount of back

pay,<3> with interest, and other benefits due complainant, pursuant to

29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. The complainant shall cooperate in

the agency's efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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 that the Court

appoint an attorney to represent you and that the Court 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 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

October 21, 2005

__________________

Date

1 The AJ ordered and agency adopted that back pay shall be half from

February 23, 2000 through June 12, 2000 and full reimbursement after

June 12, 2000.

2 The agency indicated that complainant filed a mixed case complaint

regarding the March 18, 2005 removal action. The agency shall take the

remedial action as ordered in this decision for clarification, unless

the removal action is overturned.

3 As noted above, back pay is limited to half from February 23, 2000

through June 12, 2000 and full reimbursement from June 12, 2000 through

March 18, 2005.