[Redacted], Lauren B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2021002454 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lauren B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2021002454 Hearing No. 570-2016-00709X Agency No. DIA-2015-00069 DECISION Concurrently with issuing its final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (AJ) finding of discrimination and order of relief regarding claim 21, identified herein, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission REVERSES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Signals Intelligence Officer, GG-15, the Directorate of Intelligence (J2), United States Cyber Command (USCYBERCOM), Defense Intelligence Agency (DIA) in Arlington, Virginia. On July 16, 2015, Complainant filed her complaint, which was amended on September 24, 2015, November 16, 2015, January 29, 2015, and March 14, 2016, alleging discrimination and a hostile work environment based on sex (female) and in reprisal for prior EEO activity. 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. 2021002454 2 Complainant alleged many incidents which occurred from August 2014 through March 2016, and the Agency identified them as claims 1 - 23.2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 26, 2018, the Agency filed its motion for summary judgment. On April 12, 2018, Complainant filed a response to the Agency’s motion. On January 10, 2020, the AJ issued an Order on Agency Motion for Summary Judgment and for Scheduling of Hearing. Therein, the AJ granted summary judgment for the Agency on all claims except claim 21. The AJ noted that a decision granting summary judgment in part would be issued separately and that a hearing would be held regarding claim 21. On September 1 and 2, 2020, the AJ held a hearing regarding claim 21 as identified as follows: Whether the Agency discriminated against Complainant based on sex (female) and in reprisal for prior EEO activity when in January and February 2016, she was excluded from consideration and not selected for the positions of Senior Defense Intelligence Analyst (SDIA)-Cyber and Senior Defense Intelligence Expert (SDIE)-Cyber and instead two male GG-15 individuals were appointed by senior personnel managers in DIA in an acting capacity with the concurrence of Officer A.3 On October 9, 2020, the AJ, after the hearing, issued a Notice of Finding of Agency Liability. Therein, the AJ found that the Agency discriminated against Complainant because of her sex and retaliated against her for engaging in protected EEO activity as alleged in claim 21. Specifically, the AJ found that two male employees were assigned to acting roles and the Agency’s explanation that Complainant was not eligible to be assigned these acting roles was not believable in light of evidence that the Agency made an exception to personnel regulations for a male employee from outside the Agency under similar circumstances. Further, the AJ found that the Agency discriminated against Complainant when she applied in April 2016 but was not selected to a subsequent senior executive level SDIA for C4I (Command, Control, Communications, Computers, Intelligence), SL-0132-00 position in June 2016. We note that Complainant did not allege this June 2016 selection incident in the instant complaint; rather she raised this matter during the hearing as background information with regard to the incident in claim 21. The AJ indicated that a hearing on damages would be held on October 16, 2020. 2 Complainant’s claims are enumerated in the Agency’s notice of acceptance letters dated September 1, 2015, November 2, 2015, January 22, 2016, February 22, 2016, and April 5, 2016. 3 Officer A, male, was an employee of the National Security Agency and was assigned, via a Joint Duty Assignment (JDA), at the Agency as a Defense Intelligence Officer (DIO) for Cyber. An employee on a JDA was equated with an employee on loan or detail from another agency. Officer A supervised Complainant from 2011 to 2013 and rated her performance under a “special exception.” 2021002454 3 On November 5, 2020, the Agency filed a Written Closing Argument on Damages after the hearing. The Agency stated that although Complainant amended her complaint four times after its filing to add many subsequent incidents, she decided not to allege or amend the instant complaint to include the June 2016 selection incident. The Agency also stated that Complainant in fact testified that she was not arguing “at all” about the June 2016 nonselection. The Agency indicated that Complainant also did not allege that she would have received the senior executive level SDIA for C4I position if only she had been selected for the acting role for the SDIA/SDIE- Cyber, GG-15 position in January/February 2016. Thus, the Agency stated that the AJ’s proposed finding of liability with respect to the June 2016 incident exceeded the AJ’s authority because it reached a claim of discrimination that was never filed, much less set for hearing and decision in this proceeding. Regarding damages for the acting roles at issue, the Agency indicated that Complainant attributed her injuries to a much broader alleged scheme of discrimination that allegedly started in 2011, which did not arise from the nonselection for the acting roles in January/February 2016. The Agency also indicated that Complainant’s mental and physical symptoms that she attributed to the Agency’s alleged discrimination began in 2014 - long before the events at issue in 2016. The Agency stated that Complainant did not provide any specific evidence supporting that her symptoms were exacerbated or affected by her not receiving an acting position in January/February 2016. The Agency thus stated that Complainant was not entitled to any damages. On November 10, 2020, Complainant, by her attorney, who was designated as her representative on that day, filed a reply to the Agency’s November 5, 2020 closing arguments on damages.4 Complainant indicated that minor stress issues began in 2014, and continued through the present day. Complainant stated that she had no medical issues prior to 2014. Complainant also indicated that her medical conditions were exacerbated by the 2016 discriminatory incident and she was diagnosed in February 2019, with several stress-related physical, emotional, and cognitive issues. Complainant indicated that she suffered elevated blood pressure, weight gain, arthralgia (joint pain), reduced immunity, insomnia, difficulty concentrating, and depressed mood. Complainant indicated that she was treated by her primary care physician and multiple specialists including physical therapy, otolaryngology, and orthopedics. Complainant stated that she obtained therapy for shoulder pain in 2014, and since then her joint pain manifested in her other shoulder, her elbow, and her knees. Complainant stated that in 2019, she learned that the joint pains were clinical symptoms of chronic stress. Complainant also stated that between 2016 and 2018, she averaged seven primary care visits per year for several emergent chronic stress- related issues, including elevated blood pressure, joint pain, repeat respiratory and viral infections, minor depression, brain fog, and weight gain. 4Prior to November 10, 2020, Complainant had no representative. 2021002454 4 For damages, Complainant sought the maximum amount of compensatory damages of $300,000. Complainant also sought her healthcare expenses related to damages from February 2016 through the present (approximately five years) totaling $16,337 and her projected expenses for an additional three years of healthcare necessary to treat damages in the amount of $6,000. In addition, Complainant sought her lost retirement annuity benefit (estimated to be $108,000 over 23 years) and lost income for her post-government contractor employment due to being hired as a former senior executive grade level versus as a GG-15 (estimated to be $140,000 for seven years). On February 4, 2021, the AJ issued a Decision Granting Partial Summary Judgment regarding Complainant’s claims, except claim 21. Specifically, the AJ found that Complainant failed to establish that the Agency created a hostile work environment in reprisal for her EEO activity or discrimination. The AJ also found that Complainant failed to establish that the Agency’s legitimate reasons for its actions were merely a pretext for retaliation or discrimination. The Agency, in its final order, adopted these findings of no discrimination. Complainant did not file an appeal. Accordingly, we need not address Complainant’s claims 1 - 20, 22, or 23 in this decision. Accordingly, we will only address claim 21 in this decision. On February 4, 2021, in a separate decision, the AJ, considering the Agency’s Written Closing Argument on Damages and Complainant’s reply thereto, issued a Decision After Hearing, Order for Damages, Corrective Action, and Remedial Relief. Regarding the acting role incident in January/February 2016 (claim 21), the AJ stated that Officer A made a decision not to assign Complainant to the Acting position, and instead to assign Individuals A and B (both male) to the Acting position. The AJ found that a preponderance of the evidence established that Complainant’s qualifications for the SDIA/SDIE-Cyber position were plainly superior to Individual A’s for the acting role as well as for the permanent senior executive SDIA for C4I position of June 2016 (for which Individual A was selected) such that the Agency’s explanation for not selecting her was a pretext to mask discrimination and retaliation. The AJ found that Complainant was entitled to remedial relief and compensatory damages as a result of the discrimination and retaliation. The AJ, after finding Complainant’s claim for $300,000 in nonpecuniary, compensatory damages was not supported by sufficient evidence, awarded Complainant $50,000 in nonpecuniary damages and $16,337 in pecuniary damages. The Agency was also ordered, in part, to reinstate and promote Complainant to the senior executive level position of SDIA for C4I or a substantially equivalent position retroactive to June 7, 2016, with back pay, including interest and other benefits. The Agency issued its final order rejecting the AJ’s finding of discrimination regarding claim 21 and the damages awarded. The Agency simultaneously filed the instant appeal. On appeal, the Agency indicates that since 2012, Complainant was assigned to USCYBERCOM J2, a combatant command staff with personnel from defense support agencies and military branches. USCYBERCOM was a wholly distinct organization from DIA (Agency). 2021002454 5 While Complainant was assigned to USCYBERCOM, USCYBERCOM was responsible for Complainant’s daily duties and the Agency had no authority to assign her to the acting role in DIA’s Directorate of Analysis, i.e., SDIE or SDIA acting position in January/February 2016. The Agency indicated that during her time at USCYBERCOM, Complainant performed various Joint Duty Assignments (JDAs) or details outside of the USCYBERCOM J2 organization. In December 2015, as her JDA assignment at the Pentagon was ending, Complainant requested to S1 that her billet be realigned to the Analytic Operations career field. In January 2016, Complainant assumed a position as the senior intelligence officer for the Plant Directorate (J5) within USCYBERCOM. The Agency stated that in 2015, its DIA’s Directorate of Analysis was undertaking a review of its C4I operations within its Analytic Enterprise Office. As the SDIA-Cyber rotation, which was held by a JDA, was ending in December 2015, the Agency decided not to replace the position by a JDA. Instead, the Agency decided to create a new SDIA senior executive level position, i.e., SDIA for C4I, SL-00, within DIA’s Directorate in order to promote the Directorate’s ability to effectively review and/or evaluate intelligence products related to C4I. While the SDIA for C4I senior level position was being approved, the Agency temporarily assigned Individual A, male, a GG-15, in the Analytic Enterprise Office (AEO), as Acting SDIE-Cyber in January/February 2016. At the same time, Individual B, male, a GG-15, Branch Chief, Cyber Mission Management Branch in AEO, was temporarily assigned as Acting SDIA-Cyber. Individuals A and B were Agency employees (i.e., not from other agencies by a JDA). The Agency announced a vacancy for the SDIA for C4I, SL-00, position on April 8, 2016, and Individual A was selected for that position in June 2016. Complainant applied for the position but was not selected. The record indicates that Officer A was in Complainant’s chain of command in 2012 and rated her performance. Complainant testified that after filing her prior complaint against Officer A in 2014, Officer A labeled her as “borderline disruptive” and a “complainer.” The record indicates that in February 2016, Officer A made an announcement at a meeting that Individuals A and B would be given an Acting SDIE-Cyber position and an Acting SDIA-Cyber position, respectively. Complainant testified that Officer A was heavily involved in the Agency’s staffing actions and staffing plans for DIA’s cyberspace and C4I support. In response to the Agency’s appeal, Complainant requests the Commission affirm the AJ’s Decision After Hearing, Order for Damages, Corrective Action, and Remedial Relief. 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). 2021002454 6 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). Here, the AJ made credibility determination that ultimately lead to the AJ’s findings of discrimination when the Agency discriminated against Complainant based on her sex and in reprisal for prior EEO activity when she was not selected to serve in an acting capacity for the position of SDIA or SDIE for Cyber in January/February 2016. 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 or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant claimed that she was denied Acting SDIE-Cyber position or Acting SDIA-Cyber position which was given to two male Individuals A and B, respectively, due to discrimination based on her sex and in reprisal for her prior EEO activity. Complainant claimed that she had more senior level experience and a broader range of experience at external agencies than, especially, Individual A. 2021002454 7 The Agency stated that it had no authority to assign Complainant to the Acting position because she was in a JDA assignment in USCYBERCOM J2 and therefore not eligible to be placed in the Acting position. However, the record indicates that the Agency was aware that Complainant’s USCYBERCOM J2 assignment was ending in December 2015, and she was seeking a new assignment possibly within the Agency. The AJ found the Agency’s explanation not credible considering evidence that the Agency had relaxed employee exchanges for intelligence jobs, as here, via JDAs, with other federal agencies. Further, Officer A testified that he previously created a new JDA position for a male Air Force employee to be assigned to work with him. The AJ found that there was persuasive evidence that Officer A exercised substantial influence over the process and the selection of the Acting positions. In fact, in February 2016, Officer A made an announcement at an Agency meeting that Individuals A and B would be given Acting SDIE-Cyber and Acting SDIA-Cyber positions, respectively. Complainant testified that after filing her prior EEO complaint against Officer A in 2014, Officer A labeled her as “borderline disruptive” and a “complainer.” The AJ found that Complainant’s testimony was credible, but Officer A’s testimony was not credible regarding the Acting position incident. After a review of the record, including hearing testimony and exhibits, we find that the AJ’s findings of discrimination and retaliation when Complainant was denied the Acting positions at issue is supported by substantial evidence. Turning to the AJ’s finding of discrimination of a subsequent incident, i.e., the SDIA for C4I, SL-00, position in June 2016, the Agency contends that the AJ’s decision regarding the incident, including the Agency’s liability thereto, exceeded the AJ’s authority because the AJ reached a claim of discrimination that was never filed. We agree. Upon review, we find that the AJ overreached her authority addressing the June 2016 incident which is not at issue. Complainant clearly did not specifically allege the subject matter in the instant complaint or amend the instant complaint to include the June 2016 nonselection. Complainant testified: So, so what I’m arguing is not for the June nonselection. There, I’ll use the time frame. June personnel action is not what I’m focused on . . . Any way you look at it, we were all qualified; he could’ve picked anybody. He could’ve picked anybody who was qualified for the job. That’s true. I am not arguing that at all. The June 2016 nonselection was never an accepted claim. Nor was this claim ever investigated. Even the AJ noted that the record did not contain the selectee’s qualifications. We note that Complainant admitted that the selectee for the June 2016 had much more experience than Complainant. Thus, we find that the AJ’s finding that the June 2016 nonselection was motivated by retaliation was improper. The AJ also seemed to indicate the AJ had the authority to make such a ruling because if Complainant had received the acting positions at issue in claim 21, then Complainant would have been selected for the senior executive June 2016 position. There is no evidence to support such a conclusion. The AJ points to no evidence. The AJ only justifies such a conclusion by stating that Complainant was “more qualified” than the selectee for the June 2016 position. However, the AJ also says that the record does not contain the selectee’s qualifications. 2021002454 8 Furthermore, Complainant herself says all the candidates were qualified, she is not contesting the selection, and the selectee had more experience than she had. Thus, we find that the AJ’s decision, including damages, regarding the June 2016 incident was improper.5 Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., may receive compensatory damages for past and future pecuniary losses (i.e., out- of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of make-whole relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000.00. 42 U.S.C. § 1981a(b)(3). Pecuniary losses are out-of-pocket expenses incurred because of the agency’s unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015) (internal citations omitted). Future pecuniary damages are losses likely to occur after the resolution of the complaint. In a claim for pecuniary, compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency’s discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The agency is only responsible for those damages that are clearly shown to be caused by the Agency’s discriminatory conduct. To recover damages, a complainant must prove that the employer’s discriminatory actions were the cause of the pecuniary loss. Id. (citations omitted). Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). 5 We note that Complainant testified that in October 2016, she was selected for a senior level position as the Deputy Director of Defense Special Missile and Aeronautics Center in the Office of the Director of National Intelligence. Complainant retired from her employment with the Agency in January 2019. 2021002454 9 There is no precise formula for determining the amount of damages for nonpecuniary losses except that the award should reflect the nature and severity of the ham and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that nonpecuniary. compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, and other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm. Man H. v. Dept. of Homeland Security, EEOC Appeal No. 0120161218 (May 2, 2017). Complainant must also establish a causal relationship between the alleged harm and the discrimination. Id. Absent such proof of harm and causation, a complainant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. Id.; Wilda M. v. U.S. Postal Service, EEOC Appeal No. 0120141087 (Jan. 12, 2017) (awards for emotional harm are warranted only if complainant establishes a sufficient causal connection between the agency’s illegal actions and her injury). To support her claim for pecuniary damages, Complainant submitted a copy of her health insurance summary of billing and appointments and her insurance claims indicating that she had a total amount of $16,337 for her health care expenses from January 2016 to November 2020. 2021002454 10 Complainant provided a copy of medical documentation indicating that she visited a primary care medical center since 2013 to 2018; she visited her family doctor for her right shoulder pain and for a flu shot on October 11, 2013; she visited a sports care facility for medical reasons on a few occasions in 2013; and she visited her family doctor on November 24, 2014 (for annual exam), on February 11, 2016 (the reason for her visit was crossed out and thus was illegible), on March 7, 2017 (the reason for her visit was crossed out and thus was illegible), on December 29, 2017 (for annual exam), and on July 31, 2018 (for herpes zoster without complication - primary, possible shingles outbreak, and chronic pain of both knees). After a review of the evidence, we agree with the Agency that Complainant has not established that she was entitled to pecuniary damages. Pecuniary damages are only appropriate if they are directly or proximately caused by the Agency’s discrimination. Considering the medical documentation Complainant provided, we find that she failed to establish that the Agency’s discriminatory actions (i.e., nonselection to the acting SDIE-Cyber or SDIA-Cyber position in January/February 2016) were a proximate cause of these expenses. Thus, we find that Complainant is not entitled to pecuniary damages. Turning to nonpecuniary damages, we find that Complainant suffered some emotional harm as a result of her not being selected for the acting positions. Complainant indicated that she experienced physical (joint pain) and mental symptoms related to stress, insomnia, mental fog, lapses in concentration, embarrassment, loss of enjoyment of life, and diminished professional standing. These symptoms, stated Complainant, began around 2014, but they were exacerbated by the discrimination. Complainant submitted a letter, dated October 16, 2020, from her primary care doctor. In the letter, the doctor stated that in February 2019, she treated Complainant’s medical issues concerning several stress-related physical, emotional, and cognitive issues. These included arthralgias, frequent viral infections, elevated blood pressure, depressed mood, difficulty concentrating, and insomnia. The doctor indicated that she saw Complainant several times in the office for evaluation and treatment of these issues, and she was also treated by multiple specialists, including physical therapy, otolaryngology, and orthopedics. Complainant submitted no evidence she sought medical assistance in January/February 2016, and/or related thereto as a result of the Agency’s discriminatory actions. Furthermore, Complainant’s doctor did not, in the October 16, 2020 letter, indicate that any of the medical issues Complainant was experiencing were in any way connected to the nonselection at issue. Nor does the doctor indicate in the October 16, 2020 letter that Complainant claimed that any of her medical issues were in any way connected to the nonselection at issue. The AJ’s award for nonpecuniary damages considered a claim not at issue in this complaint. By just looking at the nonpecuniary harm from the discrimination in Claim 21, we find that other matters greatly contributed to Complainant’s conditions and that Complainant has not shown a connection between the discrimination at issue and those conditions apart from her own assertions. Having reviewed the entire record and the nature of the Agency’s violation, we find that the award of $1,500 in nonpecuniary, compensatory damages is reasonable and appropriate. 2021002454 11 This amount considers the harm caused by the Agency’s failure to select Complainant for the SDIE-Cyber or SDIA-Cyber acting position in January/February 2016, which positions lasted for approximately five to six months. See Natalie S. v. Department of Veteran Affairs, EEOC Appeal No. 2021000139 (April 27, 2021) (awarded $1,500 in nonpecuniary, compensatory damages for harm that was mostly caused by reasons other than discrimination); Nadene M. v. Dep’t of Justice, EEOC Appeal No. 0720150018 (May 20, 2016) (awarded $1,000 in nonpecuniary, compensatory damages for exacerbated preexisting anxiety and depression after a finding of retaliation); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111119 (June 28, 2013) (awarded $1,500 in nonpecuniary, compensatory damages for stress, problems with eating and sleeping, anxiety attacks after a finding of discriminatory nonselection). We find that $1,500 is adequate to compensate Complainant for the harm suffered as a result of the discriminatory nonselection for the acting position, is not “monstrously excessive,” is not the product of passion or prejudice, and is consistent with prior Commission precedent. Thus, we find that the Agency’s decision that Complainant was not entitled to compensatory damages for its discriminatory action was improper. CONCLUSION The Agency’s final order finding no discrimination regarding claim 21 is REVERSED. The complaint is REMANDED to the Agency so that the Agency shall comply with the Order herein regarding relief. ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $1,500 in nonpecuniary, compensatory damages. 2. Within 90 days from the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to Officer A. The training shall emphasize Title VII of the Civil Rights Act with an emphasis on nondiscrimination based on sex and the prohibition against retaliation for engaging in protected EEO activity. 3. Within 60 days from the date this decision is issued, the Agency shall consider taking disciplinary action against Officer A. 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 Officer A has left the Agency’s employment, then the Agency shall furnish documentation of his departure date. 2021002454 12 POSTING ORDER (G0617) The Agency is ordered to post at its USCYBERCOM J2 and Headquarters Office in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), she/he 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2021002454 13 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2021002454 14 Any supporting documentation must be submitted together with the 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 December 13, 2021 Date