Mahin Khatami, Petitioner,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0420060043 (E.E.O.C. May. 15, 2007)

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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2

0420060043

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0420060043