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

Equal Employment Opportunity CommissionOct 3, 2000
05a00002 (E.E.O.C. Oct. 3, 2000)

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.