Anthony Romano, Appellant,v.Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01974626 (E.E.O.C. Sep. 2, 1999)

01974626

09-02-1999

Anthony Romano, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.


Anthony Romano, )

Appellant, )

) Appeal No. 01974626

v. ) Agency Nos. 90-036; 94-098

) Hearing Nos.120-95-6001X;

Lt. Gen. Kenneth A. Minihan, ) 120-95-6002X

Director, )

National Security Agency, )

Agency. )

)

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final decision of the agency concerning his

allegation that the agency violated Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination in

Employment Act (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission

hereby accepts the appeal in accordance with EEOC Order No. 960,

as amended.

The issues presented are whether appellant proved, by a preponderance

of the evidence, that he was discriminated against:

1) because of his sex (male), and age (44) when he was not promoted

to the Grade 14 level by the agency in December 1989 (Agency Complaint

No. 90-036); and

2) because of his sex (male), age (48), and reprisal (prior EEO activity)

when he was not promoted to the Grade 14 level by the agency in December

1993 (Agency Complaint No. 94-098).

During the relevant time, appellant was employed by the agency

as a Language Analyst, GGD-13. Believing that he was a victim of

discrimination, appellant sought EEO counseling on two separate occasions

and later filed two formal EEO complaints dated June 26, 1990 and January

23, 1994, wherein he alleged that he had been discriminated against as

described above.

The agency complied with all procedural and regulatory prerequisites, and

after separate investigations, the two complaints were consolidated for a

hearing. After the hearing, on January 16, 1997, the EEOC Administrative

Judge (AJ) issued a Recommended Decision (RD) finding no discrimination

on any basis in either complaint. The AJ found, among other things,

that appellant's motion to include an issue under the Equal Pay Act

(EPA) was untimely, since it was not made until the start of the hearing.

The AJ further found that appellant's nonpromotions in 1989 and 1993 were

justified in that, unlike those promoted, appellant had received no awards

at the GS-13 level and did not have the same breadth of experience or

high scores on the Essential Professional Skills/Performance Evaluation

(Form P1B) as those promoted. Furthermore, the record did not include

evidence showing that age was a determining factor in the promotion

process. Subsequently, the agency adopted the RD as its own final

decision.

On appeal, appellant's attorney makes many contentions, chief among them

that the EPA issue was timely since it was related to and grew out of

the original discrimination charge, that promotion board members were

instructed to use quotas to promote women to the detriment of appellant,

that a female comparator was promoted for this reason, that appellant

was not given awards for discriminatory reasons, and that many of his

supervisors, who were not on the promotion committee, felt that he had

outperformed many Grade 14s. In response, the agency contends that

appellant offered no compelling reason to reverse the AJ's finding

the motion to include the EPA claim was untimely made, that there was

no evidence that the promotion board members adjusted their work to

accommodate the Director's goal of increased female promotions, and that

supervisors who made favorable comments about appellant's work were not

on the promotion boards and therefore had no basis of comparison with

the candidates who were promoted.

After a careful review of the record in its entirety, the Commission

finds that the AJ's RD summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We therefore discern no

basis to disturb the AJ's finding of no discrimination. In particular,

appellant failed to provide any substantive evidence demonstrating

that his qualifications and/or experience were so plainly superior to

those of the candidates promoted to Grade 14 as to warrant a finding of

discrimination. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

Also, despite appellant's argument to the contrary, the EPA claim was

an independent claim, apart from the claims of nonpromotion, which was

untimely raised at the hearing. Consequently, the AJ properly denied

appellant's motion to include the EPA claim by way of an amendment.

Accordingly, after a careful review of the entire record, including

arguments and evidence not specifically addressed here, it is the decision

of the EEOC to AFFIRM the agency's final decision in this matter.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

September 2, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations