05a00002
10-03-2000
Anthony Romano, Complainant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Anthony Romano v. National Security Agency
05A00002
October 3, 2000
.
Anthony Romano,
Complainant,
v.
Lt. Gen. Kenneth A. Minihan,
Director,
National Security Agency,
Agency.
Request No. 05A00002
Appeal No. 01974626
Agency No. 90-036; 90-098
Hearing No. 120-95-6001X; 120-95-6002X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Anthony
Romano v. National Security Agency, EEOC Appeal No. 01974626 (September
2, 1999).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates that: (1) the appellate decision involved
a clearly erroneous interpretation of material fact or law; or (2)
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
In his request, complainant contends that the EEOC Administrative Judge
(AJ) erred in not granting his motion to amend his complaint to include
the issue of disparate pay under the Equal Pay Act (EPA). The AJ found
complainant's EPA claim a separate and distinct issue untimely raised
under EEOC Regulation 29 C.F.R. � 1614.105(a), noting that the complaint
alleged disparate treatment concerning promotion, but not unequal pay for
equal work. Complainant, however, argued that this issue arose out of
the complaint investigation into his claim that he was treated differently
from female employees in comparable situations, citing Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970), as legal authority.
However, although the AJ found complainant's EPA claim to be untimely,
he found that assuming, arguendo, that the claim was timely, complainant
failed to establish a prima facie case under the EPA.
In so finding, the AJ noted that in order to establish a prima facie
case under the EPA, complainant is required to show that his employer
paid lower wages to him than to an employee of the opposite sex who
did equal work on jobs whose performance requires equal skill, effort
and responsibility and which were under equal working conditions.
See Corning Glass Works v. Brennan, 417 U.S. 161 (1974). The AJ found
that complainant failed to establish that he and the GS-14 female employee
he cited worked under equal working conditions or that each expended equal
effort or carried equal responsibility in the performance of their jobs.
In addition, the AJ found that complainant failed to demonstrate that
an agency review of position descriptions established that his job as
a reviewer of others' work was the same as that performed by employees
paid at a higher level. The AJ also found that despite witnesses who
stated that complainant performed his work at the GS-14 level, that
level of performance was not required by complainant's job description.
Finally, the AJ found that the agency's basis for grades falls within
its merit system under which an employee is promoted based on a number
of factors, and thus the promotion system meets the criteria of an valid
agency defense under the EPA. After a review of the record, we agree
with the AJ's finding that, even assuming complainant's EPA claim was
timely, he failed to establish a prima facie case of gender-based wage
discrimination.
Complainant also contends that destruction of some interview notes
by promotion panel members and failure to account for some other
agency exhibits warrant an adverse inference. We agree with the
AJ, however, that a lack of some of the notes and exhibits did not
hamper complainant in his attempt to demonstrate that the agency's
legitimate, nondiscriminatory reason for his nonpromotion was a pretext
for discrimination, since he had full access to agency witnesses and
effectively cross-examined them. This agency reason was that complainant
was less qualified than the individuals promoted. While the review panels
did not criticize his technical skills, they found that he lacked the
necessary leadership and mentoring skills which the successful candidates
possessed. Upon reviewing the record, we agree that complainant failed
to show that his qualifications were �so plainly superior� to those
of successful candidates for promotion that a finding of pretext is
warranted. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01974626 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 ORDEPARTMENT
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
October 3, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.