0420060043
05-15-2007
Mahin Khatami, Petitioner, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Mahin Khatami,
Petitioner,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 04200600431
Appeal Nos. 07A30127, 07A40072
Agency No. NCIEEO990017
DECISION ON A PETITION FOR ENFORCEMENT
On September 2, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of orders set forth in Mahin Khatami v. Department of Health and Human
Services, Appeal Nos. 07A30127 and 07A40072 (both issued September 30,
2004) and Mahin Khatami v. Department of Health and Human Services,
Petitions for Enforcement Nos. 04A50013 and 04A50014 (consolidated and
issued together on September 27, 2005). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner
alleged that the agency failed to fully comply with the Commission's order
to offer petitioner a position substantially similar to the position of
Assistant Director for Technology Program Development, GS-601-14/15.
Petitioner seeks unspecified compensatory damages due to the agency's
noncompliance.
Petitioner filed a complaint in which she alleged that the
agency discriminated against her on the bases of national origin
(Iranian-American), sex (female), religion (Muslim), age (DOB: May 19,
1943) and in reprisal for prior EEO activity in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. Following petitioner's
request for a hearing before an EEOC Administrative Judge (AJ), the AJ
issued a summary decision finding discrimination. The agency subsequently
issued a final decision declining to adopt the AJ's decision and appealed
the AJ's decision to the Commission. In EEOC Appeal No. 07A30127 the
Commission, among other things, reversed the agency's final decision,
finding that the agency discriminated against petitioner when she was
not selected for the Assistant Director position, and ordered that she
be offered a comparable position.
On February 2, 2005, petitioner submitted two petitions for enforcement,
which were consolidated under Petition Nos. 04A50013, 04A50014.
In 04A50013, petitioner alleged that the agency had offered her a position
pursuant to our order in EEOC Appeal No. 07A30127, but that the position
was not comparable to the Assistant Director position. On September 27,
2005, we issued a decision finding that the agency was not in compliance
with our order to offer petitioner a comparable position. We therefore
again ordered the agency to offer petitioner a position substantially
equivalent to the Assistant Director for Technology Program Development,
at the GS-14 level, with promotion potential to GS-15.
On September 2, 2006, petitioner submitted the petition for enforcement
at issue. Petitioner contends that on December 8, 2005, the agency
offered petitioner the position of Assistant Director for Technology
Program Development, and that petitioner accepted the position on December
19, 2005. Petitioner further contends that, despite being offered the
position, as of the date of her petition, she had still not been assigned
to the office or duties of the position. Instead she has been kept in
her prior office, has been provided no duties, and her new supervisor
refused to respond to her inquiries.
On October 19, 2006, the agency submitted its response to petitioner's
petition, copies of which were sent to petitioner. The agency
acknowledged that it had failed to comply with our prior order in a
timely manner, but assured the Commission that its failure to comply
was merely an "oversight" and that it has since complied with the order.
The agency included a copy of the Position Description and Performance
Management Appraisal Plan which it maintained had been forwarded to
petitioner on October 18, 2006. To date, petitioner has not submitted
a response rebutting the agency's claims.
Following a review of the record, and in light of the fact that petitioner
does not appear to dispute the agency's most recent claim that it is
now in compliance with our order, it is the decision of the Commission
that the agency is in compliance with the order to place petitioner in
the position of Assistant Director for Technology Program Development
position, GS-601-14/15, or a substantially equivalent position.
As noted in the agency's brief, our prior order did not address the
physical location of petitioner's office and therefore the fact that she
had not been moved from her old office is not material to the issue of
whether or not the agency is in compliance with our order. The duties
of the position, however, are material. Given that it now appears that
petitioner is being given the duties of her position, we find that the
agency is in compliance with our order.
Petitioner has requested unspecified damages due to the agency's
months-long failure to comply with our order. As regards punitive
damages, we note that punitive damages are not available to federal
employees. See Jones v. Department of Health and Human Services,
EEO Request No. 05940377 (January 23, 1995), citing Graham v. United
States Postal Service, EEOC Request No. 05940132 (May 19, 1994); EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992).
As regards compensatory damages, petitioner has not provided specific
evidence of harm and has not requested a specific amount. The request
for damages is therefore denied.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, 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
May 15, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0420060043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0420060043