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