04a50013
09-27-2005
Mahin Khatami v. Department of Health and Human Services
04A50013, 04A30014
September 27, 2005
.
Mahin Khatami,
Petitioner,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services
Agency.
Petition Nos. 04A50013, 04A50014
Appeal Nos. 07A30127, 07A40072
Agency Nos. NIH-02-0001, NCIEEO-99-0017
Hearing Nos. 120-2003-0026X, 120-A1-4138X
DECISION ON A PETITION FOR ENFORCEMENT
On February 4, 2005, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed petitions for enforcement to examine the
enforcement of orders set forth in two decisions involving Mahin Khatami
v. Department of Health and Human Services, EEOC Appeal Nos. 07A30127
and 07A40072 (both issued September 30, 2004). These petitions for
enforcement are 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 her a position comparable to
the Assistant Director for Technology Program Development position,
GS-601-14/15 (Assistant Director position), failed to pay interest on
the awards of nonpecuniary compensatory damages and attorney's fees,
and failed to pay back pay plus interest and benefits.
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. Petitioner requested a
hearing before an EEOC Administrative Judge (AJ1) who issued a summary
decision finding discrimination. The agency issued a final decision
declining to adopt AJ1's decision and appealed AJ1's decision to the
Commission. In EEOC Appeal No. 07A30127, the Commission 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. The order also
specified that the agency had to pay damages, back pay, interest, and
benefits. The matter was assigned to a Compliance Officer and docketed
as Compliance No. 06A50001 on October 5, 2004.
Petitioner also filed a complaint in which she alleged that the agency
discriminated against her on the bases of national origin, sex, and
age when she was terminated during her probationary period as a Health
Science Administrator. Petitioner requested a hearing before another
EEOC Administrative Judge (AJ2) who, following a full hearing, issued
a decision finding discrimination. The agency issued a final decision
declining the adopt AJ2's decision and appealed the decision to the
Commission. In EEOC Appeal No. 07A40072, the Commission reversed the
agency's final decision, finding that the agency discriminated against
petitioner and ordered the agency to pay damages, back pay, interest
and benefits. The matter was assigned to a Compliance Officer and
docketed as Compliance No. 06A50003 on October 5, 2004.
The Commission will exercise its discretion, pursuant to 29 C.F.R. �
1614.606, to consolidate and address petitioner's petitions, identified
above, in this decision.
On February 4, 2005, petitioner submitted the petitions for enforcement
at issue. Petitioner contends that the agency has offered her a position
pursuant to our order in EEOC Appeal No. 07A30127, but that it is not
comparable to the Assistant Director position she was denied. Petitioner
initially notes that the Assistant Director position is a career ladder
GS-14/15 position while the Technology and Transfer Specialist position
(Technology Specialist position) offered by the agency goes no higher
than GS-14. In addition, she argues that she was ideally suited to
the Assistant Director position, which involved �the implementation
of technology development programs where the employee is responsible
for coordinating the implementation of technology initiatives.� The
Technology Specialist position, on the other hand, �focuses almost
exclusively on areas involving legal knowledge� regarding inventions,
patents, and royalties, and that petitioner �has no background in law,
knows little or nothing about patentability, and is arguably not even
qualified for this position.� Petitioner's Petition for Enforcement.
Petitioner further maintains that, while the agency has paid the
$65,000.00 compensatory damages award for both decisions as well as
attorney's fees, the agency has failed to comply with the order to pay
interest on either amount. In addition, petitioner contends that the
agency has not paid back pay, benefits, or interest on the back pay.
Accordingly, petitioner requests that the Commission award additional
compensatory damages. Finally, petitioner notes that the agency declined
to order disciplinary action against her supervisor.
The agency maintains that the Commission's order made no mention of
offering petitioner a position with promotion potential to GS-15.
The agency further maintains that the Technology Specialist position
is comparable to the Assistant Director position. The agency argues
that it has recently complied with the order to pay back pay, benefits,
and interest, as well as interest on the award of attorney's fees and
compensatory damages and submits documentary evidence of such payment.
The agency argues that any delay was not unreasonable.
The Commission's regulations require that, where an employee has been
discriminated against, the agency shall offer the employee the position
that she would have occupied absent the discrimination or, if justified
by the circumstances, a substantially equivalent position. 29 C.F.R. �
1614.501(b)(1)(i). A substantially equivalent position is one that
is similar in duties, responsibilities, and location. See Patterson
v. Dept. of Agriculture, EEOC Request No. 05940079 (October 21, 1994).
The burden to prove substantial equivalency rests with the agency. Shaw
v. Dept. of the Air Force, EEOC Request No. 05930370. Furthermore, the
measure of substantial equivalence should be based on the position that
was the subject of the original complaint as it originally existed.
See Hafiz v. Dept. of Defense, EEOC Petition No. 049600021 (July
11, 1997). After a review of the record, we find that the Technology
Specialist position offered by the agency is not substantially equivalent
to the Assistant Director position denied the petitioner.
A review of the position description for the Technology Specialist
position reveals that the position is within the Technology Transfer
Branch, an office whose primary function is described as implementing the
Federal Technology Transfer Act, specifically implementing legislation
relating to collaborative agreements, inventions, patents, and royalties.
See Agency Reply to Petitioner's Enforcement Petition, Tab 5. The duties
of the incumbent are predominantly related to Cooperative Research
and Development Agreements (CRADAs), and the incumbent originates and
drafts complex CRADAs and similar agreements, represents the agency in
negotiating CRADAs and similar agreements with other parties, and manages
and monitors the process for handling CRADAs and similar agreements, as
well as potential inventions involving all interested parties. See id.
The incumbent further plays an educational role concerning technology
transfer issues such as inventions, patents, licensing, confidential
information, copyrights, trademarks, and collaborative agreements,
and an advisory role concerning domestic and foreign patent rights,
policies, and procedures. See id.
The position description further states that the incumbent is required to
possess a �mastery of the administrative laws, policies, rules, methods
and procedures of [the agency] as they relate to technology transfer,�
id., and that this includes �expert knowledge of the laws and procedures
relating to patents, trademarks, and copyrights, as well as grants and
contract law and procedures,� id., including certain specific laws and
Acts applicable to the position, a wide range of domestic administrative
laws and regulations, court decisions, and international law.
A review of the position description for the Assistant Director
position reveals that the position is within the Office of Technology
and Industrial Relations, an office whose primary function is creating a
��user friendly' interface for interactions of the extramural program
with industry, addressing cross-cutting issues related to technology
development in the extramural programs, and managing cross-cutting
technology initiatives,� Agency Hearing Exhibit 21 for Appeal
No. 07A30127, p. 5, as well as �coordinat[ing] existing information
from extramural programs on mechanisms for interaction with industry,
identify[ing] unmet information needs of industry, develop[ing] mechanisms
for dissemination of information to industry, and coordinat[ing] with
extramural programs and the Technology Development and Commercialization
Branch on building liaisons with industry.� Id. The incumbent is
described as serving as �an expert on the implementation of technology
development programs within the National Cancer Program,� id., and
as �a resource for technology [sic] development needs of the cancer
and clinical oncology research communities and opportunities for the
support of technology development.� The position description addresses
numerous other ways in which the position primarily addresses identifying,
supporting, and developing technology development programs.
The record thus reveals that the Technology Specialist position consists
in large part of negotiating, drafting, and administering agreements,
in an office whose function is the implementing of legislation relating
to such agreements. The Assistant Director position, on the other
hand, consists in large part of implementing and developing technology
development programs in an office whose function is industrial relations.
In addition, the knowledge required for the Technology Specialist position
is highly specific technical legal knowledge, none of which is revealed in
petitioner's curriculum vitae. Deposition for EEOC Appeal No. 07A30127,
Exhibit 8, also identified as Exhibit 5. The knowledge required for the
Assistant Director position, on the other hand, is far broader, consisting
of generalized knowledge of the National Cancer Institute's overall
research programs and activities. Such knowledge is more consistent with
petitioner's experience as a Health Science Administrator at the National
Cancer Program, a position described by petitioner's former supervisor
as involving �a translation of biology and biochemistry science into an
early detection (of cancer) research program.� Affidavit before Agency
Investigator, Report of Investigation for EEOC Appeal No. 07A40072, Tab 9.
The agency argues that the positions are comparable in that �each requires
the incumbent to play an active role in promoting scientific technological
interchange by working closely with industrial, academic, and federal
scientists. Both positions also provide advice to the NCI researchers
and researchers of cooperating institutions on matters related to the
support of technology development. Both serve as a point for information
on NCI-wide opportunities for the support of technology development.
Neither position requires the possession of a law degree . . . both
positions require technology work, which is work that can be performed
by individuals who are scientists and/or scientist administrators with
a Ph.D. or by individuals who possess equivalent research experience or
other scientific discipline related to the mission of the NCI.� Agency
letter, January 26, 2005, attachment p. 3.
While there are undoubtedly some similarities between the positions,
we note that these are no more than may be expected of professional
positions within a scientific organization. However, while a law
degree may not be necessary for the Technology Specialist position,
the position undoubtedly requires a high degree of specialized legal
knowledge of the type that is simply not required by the Assistant
Director position. Furthermore, as the Assistant Director position
involves the implementation and development of technology development
programs we find it is more of a policy formulation position than is
the Technology Specialist position. Finally, we find that the way
the Assistant Director �work[s] closely with industrial, academic,
and federal scientists� in the context of industrial relations is
fundamentally different from the way the Technology Specialist may be
said to be �working with� such scientists when negotiating agreements.
For all of the above reasons we find that the agency has not met its
burden of showing that the Technology Specialist position is comparable
to the Assistant Director position. See Shaw.
We further find that petitioner is entitled to a position with promotion
potential to GS-15, just like the original position denied her<1>.
However, regarding petitioner's argument that she should be offered
a GS-15 position, we find that complainant has not met her burden of
establishing that she would have been promoted to a GS-15 after a year,
or even by the time of this decision.
With respect to petitioner's contention that the agency did not discipline
the responsible management official, we note that the agency was only
directed to consider disciplinary action against the official. The record
indicates that discipline was considered but rejected as inappropriate.
Therefore, the fact that the agency did not actually impose discipline
does not constitute noncompliance. With respect to the remaining
issues regarding payment of back pay, benefits, and interest, as well as
interest on the attorney's fee award, the agency has presented evidence
showing that these amounts have been paid. We find that complainant is
not entitled to additional compensatory damages for the agency's delay.
With respect to the issue of interest on the compensatory damages awards,
we note that our prior orders did not contain such a requirement.
Such a request is therefore denied.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission that the agency is not in compliance
with the order to offer petitioner a position comparable to the Assistant
Director for Technology Program Development. It is further the decision
of the Commission that the agency is in compliance with all other relief
ordered in our decision.
ORDER
(1) Within sixty (60) days of this decision becoming final, the agency
is ordered to offer complainant a position substantially equivalent
to the Assistant Director for Technology Program Development, at the
GS-14 level, but with promotion potential to GS-15. Complainant shall
have fifteen (15) days from receipt of the offer to decide whether to
accept or decline the offer. Failure to accept the offer within the
15-day period shall be considered a declination of the offer, unless
complainant can show that circumstances beyond her control prevented a
response within the time limit.
The agency is directed to submit a report of compliance, as provided in
the paragraph entitled "Implementation of the Commission's Decision." The
report must include evidence that the corrective actions have been
implemented. The agency shall send a copy of the report and all its
enclosures to the petitioner.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
September 27, 2005
__________________
Date
1While the prior Order did not specifically mention promotion
potential to GS-15, it is clear from the context of the decision
as a whole that the original position had promotion potential to
GS-15 and that the agency was being directed to offer complainant
a comparable position.