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.