Sofjan Bahaudin, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01993594 (E.E.O.C. Sep. 13, 2000)

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).