04990009
08-19-1999
v. ) Request No. 05970628
Khairy W. Malek v. Department of Health and Human Services
04990009
August 19, 1999
Khairy W. Malek, )
Petitioner, )
) Petition No. 04990009
v. ) Request No. 05970628
) Appeal No. 01955698
Donna E. Shalala, ) Agency Nos. FDA 391-92,
Secretary, ) 044-92
Department of Health and Human ) Hearing Nos. 120-93-7640X,
Services, ) 120-93-7645X
Agency. )
)
DECISION ON A PETITION FOR ENFORCEMENT
On November 5, 1998, the Equal Employment Opportunity Commission
docketed a petition for enforcement requesting enforcement of the
Commission's order for remedial relief set forth in Khairy W. Malek
v. Donna E. Shalala, Secretary, Department of Health and Human Services,
EEOC Request No. 05970628 (September 18, 1997). The Commission accepts
this petition for enforcement pursuant to 29 C.F.R. �1614.503.
ISSUE PRESENTED
The issue presented herein is whether the agency has fully complied with
the Commission's order for relief in EEOC Request No. 05970628.
BACKGROUND
By decision dated September 18, 1997, the Commission found that the agency
had discriminated against petitioner when, at the end of his two-year
appointment as a Staff Fellow in the Center for Drug Evaluation Research
(CDER), it did not convert him to the position of Medical Officer,
GS-14. The decision ordered the agency to offer petitioner retroactive
placement into the position of Medical Officer, GS-14, or an equivalent
position, with back pay and other benefits. The decision also provided
for an award of attorney's fees and costs. In response to our order,
the agency retroactively placed petitioner into the position of Medical
Officer, GS-14, at the Step 5 level. This position (the Position) was
not located on the Pilot Drug Evaluation Staff (PDES), where petitioner
had worked prior to his removal. Rather, the Position was located in
CDER's Clinical Investigations Branch (CIB). Appellant was placed in
that position in December 1997.
Petitioner filed an initial petition for enforcement on January 28, 1998,
in which he made several arguments. First, petitioner argued that the
Position did not comply with our order because, unlike Medical Officer
(MO) positions within PDES, it did not involve the evaluation of new
drugs. Second, petitioner argued that he should have been placed in
the Position at the GS-15, Step 10 level rather than the GS-14, Step
5 level. Third, petitioner argued that the agency's calculation of back
pay was not correct and that the award did not provide for any interest.
Finally, petitioner contended that he had yet to receive any attorney's
fees or costs.
The Commission thereafter issued a decision ordering the agency to take
a number of actions. Malek v. Department of Health and Human Services,
EEOC Petition No. 04980013 (August 13, 1998). These included explaining
why petitioner was not offered an MO position within PDES; providing
a detailed explanation concerning the method(s) by which MOs in CDER
are promoted to the GS-15 level; identifying those MOs who had been
promoted to the GS-15 level since 1991 and how long it had taken them to
be promoted; and explaining its basis for concluding that, had petitioner
been promoted to the GS-14 level in 1991, it would have been at the Step
1 level. The agency was also ordered to pay petitioner all back pay to
which he was entitled and submit proof that it had paid him reasonable
attorney's fees and costs.
The record reveals that the agency subsequently paid petitioner
$640,957.39 in back pay and interest and that the parties settled
the matter of attorney's fees and costs. The agency's supplemental
investigation revealed that the reason petitioner had not been offered an
MO position within PDES was because PDES had been disbanded on September
29, 1996. The investigation also revealed that MOs are promoted to
the GS-15 level by a peer review committee which determines whether
an MO is entitled to a promotion based on an accretion of duties. The
committee bases that determination on the "individual scientific/medical
accomplishments of a physician in relation to the practice of medicine
within FDA's regulatory science environment." The agency provided
statistics indicating that, of the 173 GS-14 Medical Officer or Staff
Fellows hired since 1991, 76 (43.9%) had been promoted to the GS-15
level.
Regarding petitioner's placement into the position at the GS-14, Step
1 level, the agency noted in its investigation that he was hired at
the GS-12, Step 1 level in January 1989 and promoted to the GS-13,
Step 1 level in February 1990. But for the agency's discrimination,
petitioner would have been promoted to the GS-14 level in early 1991,
at which time he was still a GS-13, Step 1. The agency explained, in
effect, that because petitioner was earning less at that level ($54,694)
than what the GS-14, Step 1 level ($61,141) paid, it was appropriate to
conclude that he would have been placed at GS-14's Step 1 level.
In addition to submitting comments in response to the aforementioned
findings, petitioner has also submitted a supplement to his original
petition for enforcement. Petitioner's primary argument is that the
agency has not accurately calculated the earnings on his retroactive
contributions to the Thrift Savings Plan (TSP). At the time of
petitioner's removal, all of his funds were in the TSP's G Fund.
For that reason, and in accordance with 5 C.F.R. �1605.4(a)(3), the
agency determined that the lost earnings on petitioner's contributions
between 1992 and his reinstatement in 1997 should be calculated using the
G Fund's rate of return. Petitioner acknowledges that this determination
was correct with regard to the lost earnings on the contributions between
1992 and May 1996. He notes, however, that in May 1996 he reallocated
his existing funds, leaving 30% in the G Fund and placing 50% in the C
Fund and 20% in the F Fund.
Based on the aforementioned reallocation, petitioner argues that, for
the period between June 1996 and his reinstatement, the contributions
for the period from 1992 to May 1996 should receive earnings consistent
with the rates for the C, F, and G Funds. We note that the agency's
compliance report reveals that, in fact, the agency reached the same
conclusion. Petitioner also argues, however, that the contributions for
the period from June 1996 to his reinstatement should also be subject
to the earnings in the C, F, and G Funds. This argument is based on
petitioner's assertion that, at the time he reallocated his existing
contributions, he would have also reallocated his future contributions
had he still been employed with the agency. Finally, petitioner asserts
that, although he submitted a form at the time of his reinstatement
reallocating his contributions among the three funds, the agency placed
all of his contributions into the C Fund.
Petitioner also argues that he is entitled to reimbursement in the
amount of $2,771.48 for the cost of attending the American Society for
Pharmacology & Therapeutics conference on three occasions between 1994
and 1996. Petitioner states that attendance at these conferences was
necessary for him to remain qualified as an MO and, in this regard,
notes that the agency requires its MOs to attend annual conferences.
ANALYSIS AND FINDINGS
In accordance with 29 C.F.R. �1614.503(c), the Commission may issue a
clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered,
but may further explain the meaning or intent of the prior decision.
As an initial matter, we find that the agency has complied with those
aspects of our prior order involving back pay and attorney's fees.
We shall now address the other aspects of our order.
The MO Position
In our prior decision, we agreed with petitioner that the Position, unlike
an MO position within PDES, did not involve the evaluation of new drugs.
For that reason, and because petitioner had worked in PDES prior to his
termination, we ordered the agency to explain why it had not offered him
an MO position within PDES. The agency has now explained that it was
because PDES no longer existed at the time of petitioner's reinstatement.
The Commission finds that this is an acceptable explanation. Although
petitioner continues to argue that the Position does not involve the
evaluation of new drugs, and despite his argument that 90% of the MO
positions in PDES perform this function, he has not definitively
identified a specific MO position that would allow him to evaluate new
drugs. He does contend that there are five offices of "Drug Evaluation"
within CDER, and a chart he submitted supports that contention. We note,
however, that the first MO position petitioner was offered at the time of
his reinstatement was located in one of these offices (the Office of Drug
Evaluation). Petitioner refused that position despite knowing that PDES no
longer existed. Based on the foregoing, the Commission finds that the
agency is not required to offer petitioner placement into yet another MO
position, and that it is in compliance with that aspect of our order.
Grade and Step Level
Appellant contends that, had he been converted to an MO position in
1991, he would have subsequently been promoted to the GS-15 level.
As we stated in our prior decision, the Commission generally does
not find that an individual would have been promoted subsequent to a
discriminatory act. See Ramirez v. U.S. Postal Service, EEOC Petition
No. 04950024 (February 8, 1996). We indicated, however, that if
promotions to the GS-15 level were perfunctory, petitioner's assertion
would potentially have merit. What is apparent from the agency's
supplemental investigation, however, is that the peer review process
for determining whether an individual should be promoted to the GS-15
level is not perfunctory. Specifically, it is apparent that promotions
to the GS-15 level are merit-based and that there are MOs who do not
receive such promotions.<0> Therefore, it would be speculative for the
Commission to conclude that petitioner would have received a promotion
to the GS-15 level. Accordingly, we find that it was appropriate for
the agency to reinstate petitioner at the GS-14 level. Furthermore,
to the extent petitioner was at the GS-13, Step 1 level at the time
of his promotion to the GS-14 level, it was appropriate for the agency
to conclude that, had petitioner rightfully been promoted to the GS-14
level in 1991, it would have been at the Step 1 level.<0>
TSP Contributions
As discussed, the agency calculated petitioner's lost earnings for
the period between 1992 and 1997 based on the G Fund's rate of return.
In this regard, 5 C.F.R. �1605.4(a)(3) states, in relevant part:
Lost earnings will be calculated and credited to the participant's
account, in accordance with 5 CFR Part 1606, using the rates of return
for the G Fund, unless the participant submitted one or more interfund
transfer requests during the period of separation. In the case of
interfund transfer requests, the earnings will be calculated using the
G Fund rates of return until the first interfund transfer was processed.
The contribution that is subject to lost earnings will be posted in the
investments fund(s) the participant requested and lost earnings will be
calculated based on the earnings for that fund(s).
Based on this provision, the agency appropriately concluded that
petitioner's contributions between 1992 and May 1996 should, for that
period, be subject to the G Fund's rate of return. The agency also
correctly concluded that, in light of petitioner's interfund transfer
in May 1996, the 1992-1996 contributions should be subject to the rates
of return of the G, F, and C funds for the period between June 1996 and
his reinstatement. Although petitioner argues that the contributions for
the period from June 1996 to his reinstatement should be subject to those
same rates, the aforementioned regulation does not assume that, because
an individual made an interfund transfer, he would have reallocated his
future contributions into the accounts into which he moved his existing
contributions. Therefore, the Commission finds that the lost earnings
for those contributions were properly calculated using the G Fund rate
of return.
Finally, the Commission has considered appellant's allegation that,
inconsistent with the TSP-1 he filed in December 1997, the agency placed
all of his makeup contributions into the C Fund. Correspondence from
the agency dated December 10, 1998, indicates that it was aware of this
problem and was in the process of correcting it. We advise petitioner
that, in the event this problem has not been corrected, he should contact
his facility's personnel office and complete another TSP-1.
Conference Costs
The Commission concludes that petitioner is not entitled to reimbursement
for the cost of attending the three medical conferences between 1994
and 1996. Specifically, we find that, to the extent these costs do not
constitute lost earnings, they are not encompassed by the regulations
pertaining to the relief that is available in the Federal Sector EEO
Process. See 29 C.F.R. �1614.501. The Commission finds that, if anything,
these costs fall into the category of compensatory damages insofar as they
constitute a past pecuniary expenditure.<0> Because the discriminatory
act occurred prior to November 21, 1991, the effective date of the Civil
Rights Act of 1991, appellant is not eligible for such damages. Landgraf
v. USI Film Products, 511 U.S. 244, 286 (1994).
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, the Commission finds that the agency has complied with the
previous Order set forth in Khairy W. Malek v. Donna E. Shalala,
Secretary, Department of Health and Human Services, EEOC Request
No. 05970628 (September 18, 1997). It is the decision of the Commission
to DENY appellant's petition for enforcement.
STATEMENT OF PETITIONER'S RIGHTS - PETITION FOR CLARIFICATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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. It
is the position of the Commission that 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. You should
be aware, however, that courts in some jurisdictions have interpreted
the Civil Rights Act of 1991 in a manner suggesting that a civil action
must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you
receive this decision. To ensure that your civil action is considered
timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS
from the date that you receive this decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 19, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 Petitioner argues that the agency, in determining the number of MOs
who are not promoted to the GS-15 level, included GS-14 Staff Officers in
its calculation. He also argues that the agency's number includes MOs who
left the agency prior to having an opportunity for promotion. Even when
those factors are considered, however, it is still apparent that there were
a number of GS-14 MOs who were not promoted to the GS-15 level.
02 Petitioner identified an MO who was hired into the agency at
the GS-14, Step 10 level. It is apparent from the record, however,
that an agency has more discretion regarding grade and step levels when
hiring an individual than it does when promoting an individual already
employed with the agency.
03 Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. N-915.002 (July 14, 1992).