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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10040
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D.C. Docket No. 3:14-cv-01524-HES-JRK
VALERIE THOMPSON,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF THE NAVY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 29, 2019)
Before ED CARNES, Chief Judge, ANDERSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Valerie Thompson is a former Naval Criminal Investigative Service special
agent who chose to retire instead of accepting an involuntary transfer that would
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have forced her to relocate from Florida to Maryland. She brought an action
against the NCIS under the Age Discrimination in Employment Act, which
provides that all personnel actions affecting federal employees over 40 years of age
“shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a).
She alleged that her transfer was part of an effort to pressure special agents to retire
because of budgetary concerns. After a five-day bench trial the district court made
detailed factual findings, including that the decision to transfer Thompson was
motivated not by age or retirement eligibility but by overstaffing in the Southeast
Field Office (the SEFO) and by changes in the NCIS’ mobility policy that were
implemented to improve mission effectiveness.
In its extensive 32-page order detailing its factual findings, the district court
explicitly rejected Thompson’s theory that the forced transfers were a tactic to
pressure special agents to retire, instead finding that “there was no requirement to
downsize NCIS manpower to meet budget demands.” The court did not credit the
testimony of Thompson’s witnesses because their information came from office
“buzz” and the “rumor mill.” It also determined that Thompson herself was not
credible because of significant inconsistencies in her testimony. The court did
credit the testimony of the decisionmakers for the relevant NCIS transfer cycle —
Assistant Director for Human Resources Andy Hogan and NCIS Deputy Director
Mark Ridley — because their testimony “was clear, consistent, and without
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contradiction.” It also found that Thompson had not “produced any
contemporaneous evidence that Ridley or Hogan expressed discriminatory intent.”
As a result, the court found that Thompson’s transfer was motivated by the need to
move agents out of the SEFO and by its policy of prioritizing transfers for agents
who had been at their duty stations longest. Those findings all supported the
court’s ultimate finding that Thompson had “failed to show that her age was a
factor” in the NCIS’ decision to transfer her –– there was no intentional
discrimination.
“Because a finding [about] intentional discrimination is a finding of fact, the
standard governing appellate review of a district court’s finding of discrimination
is that set forth in Federal Rule of Civil Procedure 52(a).” Anderson v. City of
Bessemer,
470 U.S. 564, 573 (1985). Factual findings “must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).
We cannot set aside a district court’s factual finding as clearly erroneous if “the
district court’s account of the evidence is plausible in light of the record viewed in
its entirety” — even if we “would have weighed the evidence differently.”
Anderson, 470 U.S. at 573–74.
The burden on a plaintiff to show that the district court clearly erred in
finding that a decision was not motivated by discrimination is even heavier where,
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as here, the court’s finding is based on credibility determinations. The reason is
that “only the trial judge can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding of and belief in what is
said.”
Id. at 575.
Thompson has not met her heavy burden. The finding that Thompson’s
transfer was not motivated by age is amply supported by the evidence in the
record. It details the NCIS’ efforts to address overstaffing at the SEFO and
documents the implementation of its new mobility policy that the NCIS believed
would increase mission effectiveness by creating a more nimble workforce. The
NCIS made extensive efforts to evaluate the staffing needs at the SEFO through a
Staff Assistance Visit and advertised the changes to its mobility policy through
town halls months before Thompson’s transfer. We cannot say that the district
court’s finding about the motivation for transferring her was not “plausible in light
of the record viewed in its entirety.”
Id. at 574. As a result, we cannot say that
Thompson’s transfer ran afoul of § 633a’s mandate that personnel actions affecting
federal employees over 40 years old “shall be made free from any discrimination
based on age.” 29 U.S.C. § 633a(a).1
1
Thompson raises a number of other issues, but we have no occasion to reach them in
light of our decision to affirm the district court’s dispositive finding that age was not a factor in
the transfer decision. First, Thompson contends that the district court erred in finding that her
transfer was not an adverse employment action. But even if we assumed that it was an adverse
employment action, she cannot prevail without also showing that it was motivated by age
discrimination. Second, Thompson contends that we should adopt the more lenient standard of
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AFFIRMED.
causation for § 633a claims articulated by the D.C. Circuit in Ford v. Mabus,
629 F.3d 198 (D.C.
Cir. 2010). That case held that a § 633a plaintiff can prevail by showing that age discrimination
played any role in a personnel action, and is not required to show that it was a “but for” cause.
Id. at 206. That difference makes no difference in view of the district court’s finding that
discrimination played no part at all in the decision to transfer Thompson. It is clear that the
decision was made “free from any discrimination based on age” regardless of what standard is
applied. 29 U.S.C. § 633a.
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