01993594
09-13-2000
Sofjan Bahaudin, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sofjan Bahaudin v. Department of the Army
01993594
September 13, 2000
Sofjan Bahaudin, )
Complainant, )
) Appeal No. 01993594
v. ) Agency No. AVKCFO9504F0230
) Hearing No. 340-96-3108X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to this Commission from the
agency's final decision concerning his formal complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
REVERSES the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that he was discriminated against on the basis
of reprisal (prior EEO activity) when he (1) was not selected for the
position of General Engineer (GS-0810-13) in January 1995; and (2)
received a lower Senior System Evaluation Report than he deserved for
the 1994 performance year.
BACKGROUND
Complainant, employed by the agency as a General Engineer (GS-0801-12) at
the time of the alleged discriminatory events, filed a formal complaint
on April 24, 1995, in which he raised what has been identified as the
issue presented.<2> At the conclusion of the investigation, complainant
received a copy of the investigative report and, by letter dated September
25, 1995, requested a hearing before an EEOC Administrative Judge (AJ).
After the hearings, held on July 17-18, 1996 (on liability) and January
26-27, 1998 (on damages), the AJ issued a finding of discrimination as
alleged by complainant. In its final decision, the agency reversed the
AJ's findings. It is from that decision that complainant appeals.
ANALYSIS AND FINDINGS
All post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. 64 Fed. Reg 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405(a)). Substantial evidence is
defined as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
After a careful review of the record, including complainant's arguments
on appeal, the agency's response thereto, and arguments and evidence
not specifically addressed in this decision, the Commission finds that
the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Therefore, we discern no
basis to disturb the AJ's decision. As such, the Commission REVERSES
the agency's final decision and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
We note that the AJ awarded complainant $85,000 in non-pecuniary damages.
Pursuant to �102(a) of the Civil Rights Act of 1991, a complainant who
establishes that he or she was the victim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. �1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000.00. Id.
After considering the evidence submitted by complainant and Commission
precedent regarding this issue, we find that the AJ's award of $85,000 in
non-pecuniary damages is justified. Specifically, complainant submitted
credible evidence indicating that the agency's discriminatory actions
caused him to, among other things, become very irritable; distant;
wake up at night and make sudden jerking movements; not want to go to
work; just lay in bed when he was not working; neglect his home duties
(i.e., investing, fixing things around the house); not want to celebrate
his anniversary; not eat; develop insomnia; only talk about how he was
mistreated at work; and become forgetful. Complainant's psychiatrist
diagnosed complainant's condition as major depression, single
episode mild to moderate with anxiety. The psychiatrist prescribed
an anti-depressant medication and sleeping pill for complainant,
who stopped taking them after a time because he perceived that they
were causing him to have difficulty breathing. Although complainant
did not report this side effect to his psychiatrist as requested,
the psychiatrist testified that that doesn't mean that complainant's
difficulties were insincere. In fact, he testified that complainant did
not exhibit an element of symptom amplification regarding his illness.
We note that the record includes information provided by other doctors
who treated complainant. That information indicates that complainant
indeed suffered from depression. In cases with similar effects, we
have awarded similar amounts. For example, in Bernard v. Department of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) we awarded
complainant $80,000 in non-pecuniary damages where affidavits provided by
complainant, friends, and co-workers described the emotional distress
that resulted from the agency's discriminatory actions. In McCann
v. Department of the Air Force, EEOC Appeal No. 01971851, we found that
complainant's testimony and several reports from medical professionals
were sufficient to support a finding that the agency's discrimination
reawakened complainant's post traumatic stress disorder. As such, she
was awarded $75,000. Thus, given the record as a whole, the Commission
finds no reason to change the AJ's award of $85,000 in the instant case.
ORDER
Per the AJ's recommendation, the agency is ORDERED to:
(1) re-issue complainant's 1994 performance evaluation to reflect that
he exceeded expectations on the objectives at issue, and then recompute
his final performance evaluation accordingly;
(2) award complainant back-pay starting from the point at which the
first selectee at issue assumed his General Engineering (GS-13) position;
(3) front pay the complainant at the GS-13 level until he can be placed
into a position of comparable salary, skills and responsibilities,
at no less than the GS-13 level;
(4) pay the complainant the sum of $85,000.00 in non-pecuniary damages;
(5) give complainant the opportunity to present specific evidence
regarding past and future pecuniary damages and reimburse him for any
such damages proven<3>; and
(6) train all supervisors and managers at the Los Angeles District Army
Corps of Engineers facility regarding Title VII's prohibition against
reprisal.
The agency is further directed to complete all the above actions
within ninety (90) calendar days after this decision becomes final and
submit a report of compliance, as provided in the statement entitled
"Implementation of the Commission's Decision." The report shall include
supporting documentation verifying that the corrective action has been
implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Los Angeles District Army Corps of
Engineers facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
September 13, 2000
______________________ ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________ ______________________________
Date Employment Opportunity Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The complaint also contained allegations of discrimination based on
race (Malayan) and national origin (Indonesian). Those bases, however,
were dropped by complainant at the administrative hearing.
3 Past pecuniary damages are not subject to the $300,000 cap for
compensatory damages. See Enforcement Guidance: Compensatory and
Punitive Damages Available Under � 102 of the Civil Rights Act of 1992;
Part II. A. 1. (July 14, 1992).