U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristy D.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 0720160003 Hearing No. 443-2011-00199X Agency No. BIA110145 DECISION Following its August 7, 2014 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Equal Employment Opportunity Commission (EEOC or Commission) affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deputy Regional Director - Trust Services at the Agency's Bureau of Indian Affairs, Great Plains Regional Office facility in Aberdeen, South Dakota. Complainant worked for the Agency for 34 years, almost exclusively in the Division of Trust Services. In the years immediately preceding the events at issue herein, Complainant received "exceptional" and "superior" ratings, as well as cash awards for her performance. On August 24, 2010, Complainant's supervisor, the Regional Director ("RD") (male, 47 years old) notified Complainant that he was reassigning her from her position in Trust Services to the position of Deputy Regional Director - Indian Services upon penalty of termination if she refused the reassignment. Complainant told RD that she did not want to be reassigned. However, rather than be terminated she accepted the new position. Following the reassignment, RD offered Complainant's former position as the Deputy Regional Director of Trust Services to a younger male, who accepted the position. On January 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (71) when: on September 10, 2010, Complainant was reassigned from the position of Deputy Regional Director - Trust Services to the position of Deputy Regional Director - Indian Services. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on September 13, 2012, and issued a decision on June 30, 2014. The AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action when RD maintained that Complainant's leadership was crucial to the success of the Indian Services program. However, the AJ further found that RD's articulated reason was a pretext to mask the true discriminatory motive based on sex and age for the reassignment. Since Complainant had since retired from the Agency, the AJ ordered relief in the form of compensatory damages in the amount of $15,000.00, as well as entitlement to attorney's fees. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra. In order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The AJ found that Complainant established a prima facie case. Complainant, as a female over the age of 40, is a member of two protected classes. The AJ found that Complainant's directed reassignment to a less favorable position constituted adverse treatment. Finally, the AJ found that Complainant showed that others outside of her protected group were treated more favorably when someone from outside of her protected groups (male; substantially younger than Complainant) was selected to replace her in her former position as Deputy Regional Director - Trust Services. The Agency on appeal first argues that the AJ erred in finding that Complainant established a prima facie case. Specifically the Agency argues that Complainant failed to show she was subjected to adverse treatment and failed to show she was treated differently than otherwise similarly situated employees outside of her protected classes. We note, however, an adverse action merely requires a tangible change in the duties or working conditions constituting a material employment disadvantage. See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (holding that divesting an employee of assignments and responsibilities establishes an adverse employment action); See also Zobel v. USPS, EEOC Appeal No. 0720050035 (November 28, 2006) (involuntary reassignment constituted adverse action where complainant strongly preferred working in her prior position and expressed this repeatedly, was comfortable in her position, and had a good working relationship with management there). In the present instance the record shows that, despite telling her supervisor she did not want to be transferred, Complainant was involuntarily reassigned from a position in an area where she had worked virtually her entire career and had "my expertise and all my knowledge," to one where she had very little experience. See Hearing Transcript, p. 66. With regard to the third prong of a prima facie case, we note that Complainant was the only person involuntarily reassigned to a less desirable position, which is sufficient to show others outside of her protected groups were treated more favorably. We therefore discern no basis to disturb the AJ's finding that Complainant established a prima facie case of discrimination. The AJ next found that the Agency articulated a legitimate nondiscriminatory reason for its action by explaining that Complainant was reassigned to the Indian Services program because her leadership was crucial to the success of that program. See AJ's Decision, p. 10. Once the Agency articulates a reason for its action, the burden shifts back to Complainant to establish that the Agency's articulated reason is a pretext for discrimination, or otherwise show that discrimination occurred. Reeves, 530 U.S. at 143; St. Mary's Honor Ctr., 509 U.S. at 519. The AJ noted that despite the fact that Complainant was a highly valued employee, the reassignment notice threatened her with termination if she refused. While the Agency argued that despite the wording of the notice it had no intention of terminating Complainant's employment, the AJ found that "the Agency's assertion to the contrary is not credible." The AJ further noted that, pursuant to Reeves, "it is permissible for a trier of fact in an employment discrimination case to infer the ultimate fact of discrimination from the falsity of the employer's explanation." The AJ concluded that "it is implausible that the Agency could respect Complainant's leadership skills as greatly as asserted, and yet would risk losing her services by threatening her with termination if she did not accepted [sic] a position it knew she did not want." Because the AJ found the Agency's position unworthy of belief, the AJ found that Complainant's reassignment was discriminatory. On appeal, the Agency argues that the AJ's finding "impermissibly relieves Complainant of her burden of demonstrating pretext." Agency Appeal Brief, p. 6. We note, however, that it is not the AJ's finding that relieves Complainant of any such burden, but the Supreme Court of the United States, which issued the language in Reeves upon which the AJ relied. We further note that the Agency has not argued that the facts of Reeves make that case inapplicable to the instant claim. The Agency next argues that the AJ's finding "renders all directed reassignments suspect (though expressly permitted by regulation) and in cases where the employee is a member of a protected class - per se discrimination." Id., p. 9 (Parentheses in original). We disagree. We note that, contrary to the Agency's claim, the AJ's finding merely renders suspect those reassignments where a complainant can establish a prima facie case of discrimination and for which the Agency's explanation is implausible, in accordance with Reeves. Following a review of the record we discern no basis to disturb the AJ's finding that Complainant was subjected to discrimination based on sex and age when she was involuntarily reassigned to the position of Deputy Regional Director - Indian Services. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Nonpecuniary Compensatory Damages The AJ awarded Complainant $15,000.00 in nonpecuniary compensatory damages, finding that "Complainant was humiliated and embarrassed. Complainant suffered reputational harm. Complainant suffered stress and anxiety. Complainant also put forth evidence that the stress aggravated her pre-existing medical condition - acid reflux." The Agency on appeal has not specifically disagreed with the amount of the damages award, other than to argue that there should be no damages award because there was no discrimination. Nonpecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the duration or expected duration of the harm. Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995). The Commission applies the principle that "a tortfeasor takes its victims as it finds them." Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1996). The Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's pre-existing condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof being on the agency to establish the extent of this entitlement. Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, however, that complaint is entitled to recover damages only for injury, or additional injury, caused by the discrimination. Terell v. Department of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12. We note that for a proper award of nonpecuniary damages, the amount of the award should not be "monstrously" excessive standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999). Complainant said that because of the Agency's action she incurred stress, humiliation, and an exacerbation of acid-reflux. Hearing Transcript, pp. 74-5. Following a review of the record we find that the AJ's award of $15,000.00 was appropriate. We note that the award of $15,000.00 meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Wood v. Department of Agriculture, EEOC Appeal No. 01A15274 (January 6, 2003) ($15,000.00 in nonpecuniary damages awarded based on complainant's testimony of emotional distress due to agency's discriminatory nonselection); Hull v. Department of Veterans Affairs, EEOC Appeal No. 01951441 (September 18, 1998) ($12,000.00 awarded based on complainant's testimony of emotional distress due to retaliatory harassment); Collington v. USPS, EEOC Appeal No. 01A03359 (August 30, 2002) ($15,000 nonpecuniary damages awarded to complainant where disability discrimination resulted in stress, anxiety, elevation of blood pressure and aggravation of asthma for a period of at least 6 months). Accordingly, we conclude that an award of $15,000 will adequately compensate Complainant for the physical and emotional distress she suffered as a result of the Agency's discriminatory acts. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final agency order which declined to adopt the AJ's finding of discrimination, as well as the AJ's ordered remedies. Instead we find that Complainant successfully established that discrimination occurred when she was involuntarily reassigned from the position of Deputy Regional Director - Trust Services to the position of Deputy Regional Director - Indian Services. We further find that Complainant is entitled to an award of $15,000.00 in nonpecuniary compensatory damages. The Agency is ordered to comply with the Order below. ORDER The Agency, to the extent that it has not already done so, is ordered to take the following remedial relief: 1. Within sixty (60) days of the date this decision becomes final, the Agency shall pay to Complainant the sum of $15,000.00 in nonpecuniary compensatory damages. 2. Within ninety (90) days of the date this decision becomes final the Agency shall provide a minimum of four hours of training on Title VII and the Age Discrimination in Employment Act to the responsible management official. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management official. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall post the notice referred to below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. POSTING ORDER (G0610) The Agency is ordered to post at its Bureau of Indian Affairs, Great Plains Regional Office facility in Aberdeen, South Dakota copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends to establish 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. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations August 10, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720160003 2 0720160003