Gary A. Newcomb, Appellant,v.Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01973784 (E.E.O.C. Sep. 9, 1999)

01973784

09-09-1999

Gary A. Newcomb, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.


Gary A. Newcomb v. National Security Agency

01973784

September 9, 1999

Gary A. Newcomb, )

Appellant, )

) Appeal No. 01973784

v. ) Agency No. 94-099

) Hearing No. 120-95-6039X4

Lt. Gen. Kenneth A. Minihan, )

Director, )

National Security Agency, )

Agency. )

)

_______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision

of the National Security Agency (agency) concerning his complaint

of unlawful employment discrimination, in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleges discrimination based upon his sex (male) when: (1) he

was not recommended for promotion in March, 1993 by the B3 office and not

promoted to the grade level of GC-14 in December, 1993; and (2) written

comments were made by appellant's reviewing official on his Essential

Professional Skills/Performance Evaluation, dated January 26, 1994.

The appeal is accepted in accordance with EEOC Order No. 960.001.

On January 28, 1994, appellant filed a formal complaint alleging

discrimination as referenced above. Appellant's complaint was accepted

for processing. Following an investigation, appellant requested a

hearing before an EEOC Administrative Judge (AJ). In June, 1995, a

hearing took place before an AJ. Thereafter, on December 27, 1996,

the AJ rendered her recommended decision finding no discrimination.

The agency subsequently adopted the AJ's recommended decision. It is

this agency decision which the appellant now appeals.

During the relevant time period, appellant worked as a Deputy Branch Chief

(GG-13) for the agency and was responsible for the overall direction of

the collection, analysis, and reporting efforts at selected U.S. field

units, as well as providing essential guidance and training to in-house

personnel.

The agency's promotion procedure for grades 13 and above includes

the review by an Advisory Group or Promotion Board of all employees

recommended by their supervisors. Some of those employees are then

recommended to a higher level board. At each organizational level<1> for

each grade, a ranked list of employees to be recommended for promotion is

prepared by the Board. The list is then submitted to the head of that

organizational level for editing and/or approval before its submission

to the Board at the next higher organizational level. This occurs at

each level until a ranked list of candidates recommended for promotion

is submitted to the highest board which is appointed by the agency's

director. There are two promotion cycles within each fiscal year.

The promotion process is started by the Chief of each organizational

unit who recommends to the next higher organizational level's chief or

board some of his/her employees for promotion. As the list works its

way up to the Director, names are deleted and added. An employee can

be included on the ultimate promotion list by: (1) being recommended by

his/her chief, receiving enough votes from higher level organizational

Boards and their chiefs to remain on the list and be presented to agency

Director; or (2) not being recommended by his/her component chief,

but being proposed for promotion during the "zero based" review by any

higher level Board member and getting enough votes from that Board's

members to be on the list as an "add-on," and making it through each

higher level to ultimately reach the agency Director for promotion.

According to the agency's regulations, the promotion criteria include:

(1) job experience; (2) training; (3) on-the-job performance; (4)

potential; and (5) personal attributes and abilities, which are divided

into creativity and innovativeness; drive, initiative, and perseverance;

dedication; ability to work with others; and ability to communicate.

During the relevant period, Appellant's Division Chief (S2) and Deputy

Division Chief (S1) made the promotion recommendations for appellant's

division (B31). In March, 1993, appellant was recommended for promotion.

Appellant was praised as a "highly talented and motivated individual

who consistently performs his duties . . . in an outstanding manner."

Appellant was recommended for promotion in the second cycle of Fiscal

Year (FY) 93 and in the first cycle of FY 94<2>. In the promotion cycle

at issue, appellant and C8 (female) were recommended for promotions

along with the top two candidates from each of the other divisions.

Appellant received several votes ranking him at the bottom of the list

of candidates who had been nominated by the six divisions. After a

review of documents, oral presentations, and discussion, the Board

members ranked the candidates as follows: (1) C1 (female) (outside of

appellant's division); (2) C2 (male) (outside of appellant's division);

(3) C3 (male) (outside of appellant's division); (4) C4 (male) (outside

appellant's division); (5) C5 (male) (outside appellant's division);

(6) C6 (female) (outside appellant's division); (7) C7 (female) (outside

appellant's division); (8) C8 (female) (within appellant's division); (9)

C9 (male) (outside appellant's division); (10) C10 (female) (outside of

appellant's division); (11) C11 (female) (outside appellant's division);

and (12) appellant. The final office-wide list which was forwarded to

the next level (office level) excluded a few candidates at the bottom of

the list. Accordingly, both appellant and C7 failed to make the list of

recommended candidates for promotion that was sent to the office level.

Even though appellant was not on the list of the recommended candidates

for promotion that was sent to the office level, he was considered during

the zero-based review by the higher level Boards along with approximately

5,000 other eligible candidates. However, appellant's name was not

added to the list at any time during the further discussions up through

the Directorate level.

The AJ determined that appellant failed to present a prima facie case

of discrimination when he was not recommended for promotion by the

Office Promotion Board. While appellant was qualified for promotion,

he was not recommended by the Office Promotion Board to the next level

(Group Promotion Board). However, the AJ noted that while appellant was

treated differently than two female employees who were recommended, he

was treated the same as two other female employees and one male employee

who were not recommended for a promotion. Accordingly, the AJ determined

that the facts did not give rise to an inference of discrimination.

In addition, the AJ determined that the agency articulated a legitimate,

non-discriminatory reason for not recommending appellant to the Group

level. According to the responsible officials, appellant was on the

bottom of a list of twelve individuals recommended for promotion.

According to the group-level chief, in an effort to forward a more

pared down list of candidates, she eliminated the last four names,

which included appellant. The AJ determined that appellant failed to

prove pretext or discriminatory animus. Specifically, the AJ found

appellant's attempt to argue that his credentials surpassed others who

made the group-level recommendation unpersuasive. Moreover, the AJ

assessed the credibility of various witnesses and determined that the

ranking officials at the division and office levels credibly testified

that appellant was ranked in accordance with their opinion of, inter alia,

his managerial skills. In addition, the AJ found that appellant failed

to present evidence that the responsible officials selections were based

upon impermissible discriminatory considerations.

With respect to the non-promotion in December, 1993, the AJ found

appellant did present a prima facie case of discrimination since three

women were promoted over appellant. However, the AJ found that the agency

articulated a legitimate, non-discriminatory reason for its employment

action which was not discredited by appellant, nor did appellant prove

discriminatory animus. Specifically, the record indicates that while many

ranking officials at each level found appellant excelled technically,

many of them also agreed that appellant lacked diversity in his career

experiences and was often considered less adept as a manager in dealing

with subordinates than others also eligible for promotion. In addition,

the record indicates that appellant also lacked a college degree which

did not disqualify him but made him less competitive.

The AJ found that appellant failed to prove pretext or discriminatory

animus. Specifically, the AJ found unpersuasive appellant's argument that

he had better and longer experience than any of the three women who were

promoted. While appellant argued that he had more cryptologic experience,

more supervisory experience and more time-in-grade than two of the women

promoted, the AJ found that appellant failed to demonstrate why the

Board members should have agreed with his assessment and prioritization

of promotion factors rather than their own. More importantly, the AJ

determined that appellant failed to demonstrate that any Board member's

decision was influenced by consideration of sex of the employee.

The AJ also determined that appellant failed to present a prima facie

case of disparate impact. Appellant argued that the agency's hierarchal

promotion procedure and the policy of appointing special representatives

to Boards to specifically review eligible female and minority employees

has a disparate impact on male employees. The AJ determined that

appellant failed to present meaningful statistical data to demonstrate a

statistical disparity based on sex in promotions. Moreover, the AJ found

that even if such disparity existed, appellant failed to prove that such

disparity was linked to the agency's promotion procedure or policy.

The appellant argued that the statistical data showed that for several

years before and after the period at issue, no full time male was promoted

in appellant's division, while nine females were promoted. In addition,

appellant asserted that between February, 1992 through June, 1995, 22 out

of 23 office-level promotions went to female employees in different grades.

Appellant further argued that while 60% of both organizations' employees

were female, their promotions exceeded 60%.

The AJ found that appellant failed to present "official data"

demonstrating the exact period when the 60% figure was descriptive of

the organizations. Moreover, the AJ noted that appellant failed to

include data regarding two male employees who were promoted to the 14

level, just prior to the reorganization in June, 1992.

The AJ found that assuming appellant's numbers were accurate, they were

devoid of statistically significant conclusions. Appellant failed to

present information showing that the selection rate of male employees

fell below four-fifths (or 80%) of the selection of women, rendering

the disparity significant. In addition, the AJ found that appellant

failed to present evidence which showed that the practice in question

caused the limited promotions of males because of their membership in

a protected group.

The AJ also noted that the record reflects that men and women are

promoted in each promotion cycle. In addition, some of those employees

promoted were recommended at the Office level and some were added by

higher organizational level boards. The AJ found the data presented

was insufficient to produce statistically significant findings about

any effect of the promotion policy. Accordingly, the AJ determined that

the promotion process was not shown to adversely affect males.

With respect to the second allegation, the record indicated that

appellant retired and the objectionable comments no longer existed, as

they were expunged from appellant's official personnel file. Accordingly,

the AJ found the second allegation moot since there was no reasonable

expectation that the alleged violations would recur and interim relief had

completely eradicated the effects of the alleged violation. In addition,

the AJ noted that appellant failed to provide specific probative evidence

showing how he was injured by the objectionable comments.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that, in all material respects, the AJ accurately set forth the relevant

facts and properly analyzed the case using the appropriate regulations,

policies, and laws.

On appeal, appellant argues for the first time that the AJ incorrectly

framed the first allegation. Specifically, appellant claims that the

allegation should have included that he was improperly not recommended

for promotion in September, 1993, rather than March, 1993. We find that

the record indicates that on numerous occasions, prior to the hearing,

appellant approved of the issue as framed by the AJ. In addition,

appellant never objected to the issue as set out by the AJ at any

time during the hearing. Also, appellant specifically referenced the

March, 1993 recommendation in his closing argument as one of the alleged

discriminatory employment actions. Accordingly, we reject appellant's

attempt to re-frame the first allegation in this matter.

Appellant also contends that the AJ improperly minimized appellants

credentials in her recommended decision. Upon review of the entire

record, we do not agree with appellant's contention, and find that

even when we view appellant's credentials in the light most favorable

to appellant, the record, nevertheless, fails to support a finding of

sex discrimination.

Lastly, appellant generally disagrees with the AJ's credibility

determinations. However, after a careful review of the entire record,

we agree with the AJ and note that credibility determinations of the AJ

are entitled to deference due to the AJ's first-hand knowledge, through

personal observation, of the demeanor and conduct of the witnesses at

the hearing. Esquer v. United States Postal Service, EEOC Request No.

05960096 (September 6, 1996).

In addition to the arguments addressed above, nothing asserted by

appellant on appeal differs significantly from arguments previously

raised and given full consideration by the AJ. Accordingly, we discern

no basis upon which to disturb the AJ's finding of no discrimination

and hereby AFFIRM the agency's final decision.

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. � 1614.604(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:

9/9/99

_______________ _________________________________

DATE Carlton M. Hadden, Acting Director

1The organizational levels ascend as follows: (1) division; (2) office;

(3) group; and (4) directorate.

2The first cycle of FY 94 promotions are at issue in this case.