Malek v. Leavitt, Civil Action No. DKC 2005-1678.

• Decision Date: 12 July 2006
• Docket Number: Civil Action No. DKC 2005-1678.
• Citation: 437 F.Supp.2d 517
• Parties: Khairy W. MALEK v. Michael O. LEAVITT Secretary, Department of Health and Human Services and Linda M. Springer, Director, Office of Personnel Management.
• Court: U.S. District Court — District of Maryland

437 F.Supp.2d 517

Khairy W. MALEK v. Michael O. LEAVITT Secretary, Department of Health and Human Services and Linda M. Springer, Director, Office of Personnel Management.

Civil Action No. DKC 2005-1678.

United States District Court, D. Maryland.

July 12, 2006.

George Wadie Hermina, John Wadie Hermina, Hermina Law Group, Laurel, MD, for Plaintiff.

Larry D. Adams, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this employment discrimination case are the motions to dismiss or, in the alternative, for summary judgment by Defendant Michael O, Leavitt¹, Secretary of the United States Department of Health and Human Services ("DHHS") (paper 25) and by Defendant Linda M. Springer, Director of the United States Office of Personnel Management ("OPM") (paper 26). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the Defendants' motions.

I. Background

The following facts are undisputed or viewed in the light most favorable to Plaintiff.² Plaintiff Khairy W. Malek, a male of Egyptian national origin, began working for the DHHS at the Food and Drug Administration ("FDA") in May 1988.³ The Agency initially hired Plaintiff as a consultant, but in January 1989 he was appointed as a Senior Staff Fellow/Medical Officer, Center for Drug Evaluation Research, Pilot Drug Evaluation Staff ("PDES"). Although some individuals were hired as permanent Medical Officers, Plaintiff's appointment was temporary, for the period of two years.⁴ In this position, Plaintiff's primary functions were to review applications for new drugs and to make presentations regarding his findings. Although the position was initially part-time, Plaintiff was converted to full-time in March 1989. In this capacity, Plaintiff received both a regular salary and a Physician's Compensation Allowance in the amount of $ 9,000.

Although Plaintiff performed well as a Staff Fellow and was promoted to a GS-13, in 1990 the Director of PDES referred him to the Deputy Chief of the Advisors and Consultants Staff ("ACS"), to find out about performing work as an Executive Secretary for the FDA's Advisory Committees. In July 1990, Plaintiff was made acting Executive Secretary for the Arthritis Advisory Committee and, shortly thereafter, became acting Executive Secretary for the Drug Abuse Advisory Committee. During the period Plaintiff performed Executive Secretary duties, he also was performing Medical Officer duties.

In March 1991, Plaintiffs two-year appointment as a Staff Fellow ended. Although Plaintiff was not converted to a permanent Medical Officer, the Agency offered him a three-month extension, and then, after that time period had expired, a six-month extension. The Agency states that the purpose of the extensions was to provide Plaintiff with experience in the Executive Secretary position to determine if he was suitable to be a permanent Executive Secretary. The Agency sent Plaintiff a letter in August 1991 stating that although it was unable, at that time, to offer him a permanent position as a Medical Officer, the position of Executive Secretary remained a viable option. During an October 1991 meeting, the Agency reiterated that it still was not ready to place Plaintiff in a permanent Medical Officer position, but asked him whether he wished to continue to pursue the Executive Secretary opportunity. The Agency told Plaintiff that there was the possibility of extending his appointment an additional three months, with the hope that he would be offered a permanent Executive Secretary position.

Plaintiff's appointment was extended until March 1992, however on November 29, 1991, the Director of the Center for Drug Evaluation Research sent Plaintiff a memorandum stating that his fellowship would not be extended past March 7, 1992. In February 1992, Plaintiff applied for the position of Health Science Administrator and for the position of Supervisory Health Science Administrator but the Agency did not hire him for either position.

Although it is not entirely clear when and how Plaintiffs administrative complaint progressed initially, it appears that sometime between August and October 1991, Plaintiff sought Equal Employment Opportunity counseling, (paper 2, ex. 1, EEOC decision of Feb. 20, 1997, at 6), and then formally pursued an administrative claim of discrimination within the Agency. Plaintiff requested an EEO administrative hearing, which was held before an administrative law judge ("ALP) in 1994. Id. at 2. On May 12, 1995, the ALJ issued a decision recommending a finding of no discrimination. The Agency issued a final decision on June 30, 1995, in which it adopted the ALJ's recommendation and found that no discrimination had occurred. Id. Plaintiff timely filed an appeal to the EEOC, Office of Federal Operations. Id. at 1.

At issue in the appeal was: whether the Agency discriminated against Plaintiff on the basis of national origin and age when it informed him in August 1991 that he would not be converted to a permanent Medical Officer and when it denied him a Physician's Compensation Allowance as of March 24, 1991; and whether the Agency discriminated against Plaintiff on the basis of national origin and age, and retaliated against him for prior EEO activity, when it informed him that his fellowship would terminate in March 1992, and when it did not hire him for either of the positions to which he applied in February 1992.

On February 20, 1997, the EEOC issued a decision, finding that Plaintiff was discriminated against on the basis of national origin when the Agency failed to convert him to a permanent Medical Officer in August 1991. The EEOC concluded, however, that Plaintiff was not discriminated against on the basis of age. Moreover, the EEOC determined that none of the other actions at issue—the failure to provide Plaintiff with a Physician's Compensation Allowance, the decision to terminate Plaintiff's fellowship in March 1992, and the failure to hire Plaintiff for either of the positions to which he applied in February 1992—was a result of discrimination.

Following the decision, the Agency filed a motion for reconsideration, which the EEOC denied on September 18, 1997. (Paper 2, ex. 1, EEOC decision of Sept. 18, 1997). The EEOC ordered the Agency to place Plaintiff "into the position of Medical Officer, GM-14, or an equivalent position, retroactive to the date on which his two-year fellowship expired," and to determine and pay the appropriate amount of back bay and other benefits due.⁵ The decision also provided for attorneys' fees incurred in the processing of the complaint. Id.

After the EEOC denied the Agency's motion for reconsideration, the Agency, by letter, offered Plaintiff the position of Medical Officer in the Center for Drug Evaluation Research's Office of Drug Evaluation IV ("ODE IV"). ODE IV was a successor office to PDES, the office where Plaintiff initially worked as a Staff Fellow.⁶ Plaintiffs attorney responded to the offer on November 12, 1997, noting that Plaintiff had concerns with the position offered because it appeared to have some of the same job responsibilities as the Executive Secretary position to which Plaintiff had previously been assigned. Plaintiff neither accepted nor rejected the job offer. The Agency then offered Plaintiff another position as a Medical Officer in the Center for Drug Evaluation Research's Office of Compliance, Division of Scientific Investigations, Clinical Investigations Branch ("CIB"), which Plaintiff accepted. Plaintiff was reinstated at the GS-14/1 grade and step, retroactive to 1991. Plaintiffs placement was made at the minimum grade. As a result of periodic step increases that Plaintiff would have received, Plaintiffs step was increased from GS-14/1 to GS-14/2 retroactive to 1992; from G14/2 to GS-14/3 retroactive to 1993; from GS-14/3 to GS-14/4 retroactive to 1994, and from GS-14/4 to GS-14/5 retroactive to 1996. At the time of his actual reinstatement, in late 1997, Plaintiff was placed at the GS-14/5 grade and step level.

In January 1998, Plaintiff filed a Petition for Enforcement of the September 18, 1997, Order with the EEOC. Plaintiff alleged that he had not been placed in his former office (PDES), that the position to which he was placed had different duties than the Medical Officer positions in the PDES office and did not involve the evaluation of new drugs, and that, unlike Medical Officers in other areas, there was no prospect for promotion to GS-15 for Medical Officers in CIB. Moreover, Plaintiff asserted that the grade and step to which he was restored, GS-14/5, failed to comply with the EEOC Order. Plaintiff claimed that had he not been discriminated against, he would have received a promotion after his appointment to the Medical Officer position, and his grade and step at reinstatement would have been G15/10. As a result of the incorrect placement at the 14/5 level, the Agency's calculation of back pay was too low. Plaintiff also asserted that the Agency's back pay calculation incorrectly failed to include interest and that although he had provided the Agency with the information it requested pertaining to back pay, the Agency had not awarded him any back pay as of January 1998. Moreover, Plaintiff maintained that the Agency had not paid him attorneys' fees and costs as required under the September 18, 1997, EEOC Order. (Paper 25, decl. of Christopher Tulley, ex. 1). The Agency did not submit any response to the Petition.

On August 13, 1998, the EEOC issued a decision on the January 1998 Petition for Enforcement. With regard to the Agency's placement of. Plaintiff, the EEOC stated that if a Medical Officer position vacancy in PDES existed at the time of the EEOC's September 18, 1997, Order, the Agency should have offered the position to Plaintiff. The...