U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glynda S.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120133361 Agency No. P-2012-0033 DECISION Complainant filed an appeal from the Agency's February 10, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency should be sanctioned for issuing a final decision in an untimely manner, and if so, what is the appropriate sanction that should be imposed against the Agency. BACKGROUND The record reveals that Complainant was born with a cleft palate and lip, which affects the manner in which she speaks. At the time of events giving rise to this complaint, Complainant worked as a Unit Manager, GS-12, at the Agency's Federal Correctional Center in Tucson, Arizona. Complainant joined the Agency as a Correctional Officer in December 1990 and became a Unit Manager for three units in October 2007. The three units she supervised were the "Camp," the male and female pre-trial medium security unit (the "Medium"), and the material witness medium-security unit. On or about January 2008, Complainant was transferred to the Pre-Trial Unit (Yucca Unit) as a Unit Manager, and was supervised by the Executive Assistant/Camp Administrator (S1). On October 3, 2011, Complainant contacted an EEO Counselor to allege that she was subjected to unlawful discrimination. On December 5, 2011, and through subsequent amendments, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against and harassed her on the bases of sex (female), disability (craniofacial anomaly), age (55 years old), and in reprisal for prior protected EEO activity when, from April 2008 until September 2011: 1. In March 2008, an inappropriate magazine photograph was posted on her door by an unknown person; 2. On June 28, 2008, Complainant was the only department head ordered to report to the institution; 3. In 2009, Complainant learned that her July 2008 and July 2009 incident reports about inmates were expunged by the Discipline Hearing Officer; 4. In 2010, S1 temporarily relieved Complainant of her duties at camp; 5. In June 2010, the Associate Warden (AW1) denied Complainant four hours of leave to attend a medical appointment; 6. On September 8, 2009, Complainant's leave slip for EAP counseling was incorrectly routed by someone to the Camp mailbox, although she had asked AW1 to let her pick it up after he signed it; 7. In December 2010, the Warden made Complainant prepare a response to an inmate; 8. In September 2010, Complainant's report of another supervisor calling her a derogatory name was not acted upon; 9. In October 2010, questions Complainant submitted for a video conference were not addressed by the Regional Discipline Hearing Office Administrator; 10. Complainant's supervisor (S1) failed to place her on the 2011 duty-officer schedule and she was not permitted to take her preferred dates for duty-officer tour; 11. In February and March 2011, AW3 changed the duties of her staff without her input; 12. In March 2011, the Emergency Preparedness Officer did not give Complainant an assignment during a complex-wide training activity; 13. On April 11, 2011, staff removed a vehicle Complainant was authorized to use; 14. In May 2011, a coworker called Complainant a name ("Ms. Yucca") that she believed related to her "facial disfigurement"; 15. In June 2011, Complainant was harassed by the Deputy Captain when he hung up the telephone on her and embarrassed her in front of her colleagues by stating she had to pull her weight; 16. On June 21, 2011, Complainant was referred to the Employee Assistance Program (EAP) by S1, and S1 requested her medical information. Additionally, in July 2011, AW2 restricted her from walking on the institution road; 17. In or about October 2011, AW2 refused to sign Complainant's sick leave request, which caused her to incur a $60 cancellation fee; 18. In July 5, 2011, Complainant was verbally counseled for dereliction of duty by AW2; 19. In November 2011, Complainant received notice from an unknown source that she was removed from Cost Center duties in the Agency's Central Source; 20. In November 2011, staff members with less seniority than Complainant were allowed to choose their preferred dates for the 2012 duty-officer schedule; 21. In late 2011, Complainant was subjected to a disproportionate work load concerning the collection of DNA; and 22. In December 2011, Complainant was investigated and issued a proposed suspension on February 3, 2012, for referring to the Warden's Secretary as "eye candy." On March 13, 2012, the Agency notified Complainant that the above claims had been accepted for investigation. However, the Agency also notified Complainant that the following claims were dismissed on the basis that they were initiated by untimely EEO Counselor contact: 1. Complainant received a rating of "exceeds" on her annual performance rating for the period ending March 31, 2009; 2. In May 2009, Complainant was not selected for the Executive Assistant position, vacancy announcement number WRO-2009-0091; and 3. In June 2011, Complainant was not selected for the Case Manager Coordinator position, vacancy announcement number WRO-2011-0083. Additionally, the Agency dismissed Complainant's claim that, during Alternative Dispute Resolution (ADR) on November 29, 2011, staff were allowed to interrupt repeatedly on the basis that this claim is an improper complaint about the processing of existing complaints.2 In an investigative statement, Complainant stated that she is an individual with a disability because she was born with a cleft palate and lip, and this condition affects the way she speaks to such an extent that others have difficulty understanding her. Regarding claim 1, Complainant stated that, in March 2008, after she became the Unit Manager for the Yucca Unit, the Warden commented that Complainant's photograph was noticeably absent from her door, which he asked her to post so that the inmates would know who she was. She responded that she was overwhelmed by the transition to the Pre-Trial Unit, and would get to it as soon as possible. Complainant further stated that on April 18, 2008, a Lieutenant (Lt1) toured the unit, and Complainant allowed Lt1 to use her office to make a call. Lt1 completed her call and left Complainant's office. At the same time the Warden was also in the Unit. Complainant stated that when she returned to her office after the Warden had left the Unit, she saw a picture of a five-year old boy with a cleft palate and lip attached to her office door. Complainant stated that she immediately reported the incident to several management officials, including the Lieutenant's Office and the Special Investigative Section (SIS). Complainant stated that Lt1 was outraged by the incident, conducted an investigation, but could not determine who posted the picture. Complainant also stated that this incident occurred on a Friday, and she called in sick on the following Monday because she was emotionally upset. Complainant further stated that she suspected that the Warden posted the offensive picture. Complainant testified that she believed that she has been retaliated against for her activity in opposition to discrimination, namely, her initial reporting of the posting of the photograph on her door. Regarding claim 2, Complainant stated that on June 20, 2008, she received a telephone call asking her to report to work, but no one else received such a call. Complainant further stated that after she drove to work, a Recreation Specialist informed her that a fight had occurred, but it was not a major fight. Complainant stated that when she got inside the building, coworkers seemed unclear as to why she had been called in, and she was sent home. Regarding claim 3, Complainant stated that on July 28, 2008, she noticed that an inmate was masturbating in front of her while she was with a compound officer. Complainant further stated that she then told a Lieutenant (Lt2) about the incident, and she submitted an incident report. Complainant stated that she later learned that the report had been expunged by a Disciplinary Hearing Officer (DHO). Complainant also stated that she submitted another incident report regarding an inmate's threat to "bash her head in," but the DHO also expunged this report. Regarding claim 4, Complainant stated that in 2010, the Agency removed her duties at Camp, therefore forcing her to perform manager and counseling duties only in the Pre-Trial Units. Complainant stated that she was eventually permitted to return to her duties at the Camp. Regarding claim 5, Complainant stated that on one occasion, AW1 approved Complainant for only four hours of leave, although she had requested eight hours of leave for a medical appointment. Regarding claim 6, Complainant stated that, in or about September 2009, she completed a leave request to attend EAP counseling and emailed the unsigned request to AW1. Complainant stated that, after AW1 signed the leave request, she placed it in a routing envelope that was then handed through several employees and placed in a public mailbox for Complainant to pick-up. Complainant stated that she wanted the leave request to be personally given to her because she wanted to keep the matter confidential. Regarding claim 7, Complainant stated that the Warden's secretary asked Complainant to respond to an email from an inmate which had been sent to the Warden. She stated that the email said that the Warden had a tough job and wished him a Merry Christmas. Regarding claim 8, Complainant stated that in September 2010, she prepared for a Prisoners Services event by obtaining paper towels, toilet paper, and dinner napkins. She stated that before the event she encountered the Food Services Administrator, who told her not to threaten his employees, she should not ask him for anything, and said she was a "weak ass manager." Complainant further stated that in a September 17, 2010, email, the Food Services Administrator told her that napkins are his responsibility, and Complainant must never threaten his staff by telling the staff she would report their actions to the Warden. Complainant stated that she forwarded the email to S1 and AW1, but AW1 later responded that she was surprised that Complainant had not learned how to speak up for herself during EAP counseling. Regarding claim 9, Complainant stated that on or about October 13, 2010, she submitted five questions to the DHO after the DHO and her secretary informed all unit team members to submit questions for an upcoming meeting with the Regional Disciplinary Hearing Officer, but during the meeting, the questions were not addressed. Regarding claim 10, Complainant stated that, on November 29, 2010, she responded to an email requesting three choices for Institution Duty Officer (IDO) duty. Complainant stated that after she later learned she was not on the IDO duty list, she informed S1 that she was not on the list, and S1 did not revise the list until a much later time. Complainant stated that once the list was revised, employees with much less seniority were given her choices for rotation. Regarding claim 11, Complainant stated that an Associate Warden (AW3) informed her that he had decided to relieve a Counselor (Counselor 1) of his counselor duties in the Yucca Unit, therefore assigning the responsibility to another Counselor (Counselor 2) who would be responsible for the Cholla Unit in addition to all inmates in the Yucca Unit. Complainant stated that the Agency did not ask for her input, which would have been the case normally. Complainant stated that the decision to remove Counselor 1 meant she had minimal support in addition to an overwhelming workload. Regarding claim 12, Complainant stated that on or about March 23, 2011, the Emergency Preparedness Officer told Complainant to report to the training center at 6:00 a.m. to assist with an exercise, but when she reported to the training center, an employee stated that Complainant was not needed and should go to the visiting room. Regarding claim 13, Complainant stated that when she became Camp Unit Manager, the Camp Executive Administrator issued her keys to a Ford truck so that she could use it to drive between facilities. Complainant stated that she used the truck a few times, and then it was taken to the garage for repairs. Complainant further stated that, over a year later, she learned that the truck was available for pick up, and on April 11, 2011, she took the truck from the garage. Complainant stated that on April 14, 2011, someone took the truck to the garage, and she was told that someone ordered mechanics to collect all unassigned vehicles and to remove the wheels on Complainant's truck so that she could not drive it. Complainant also stated that she believed that the employees in the garage deliberately kept her from using the truck to drive between separate facilities in the institution because she was using the truck to track down employees who were not answering their radios and telephones so that she could have face-to-face conversations with them. Complainant further stated that, as a result of not having a truck, she had to walk along the side of the road. Complainant stated that after the truck was not returned, she had to rely on the Agency's taxi service, walking, and a coworker to provide her with a ride. Complainant stated that she believed that someone at the garage is responsible for withholding the truck from her. Complainant further stated that AW2 also admonished her not to walk along the institution road because she might have a heat stroke. Regarding claim 14, Complainant stated that during a Special Housing Unit (SHU) meeting in May 2011, the Deputy Captain referred to her as "Ms. Yucca," which Complainant thought was intended as "Ms. Yucky." Complainant stated that she was referred to as "Yucky" because of her "facial disfigurement." Regarding claim 15, Complainant stated that in June 2011, she asked the Deputy Captain to inquire whether sufficient female staff was available in the unit, and the Deputy Captain told Complainant that she did not have time to "listen to her cry" and that Complainant's time would be better served reading emails. Complainant further stated that the Deputy Captain then hung up on her. Complainant stated that she reported the matter to S1 the same day it occurred, but her concerns were not addressed. Complainant also stated that during a retreat in January 2011, the Deputy Captain said that she needed to step up and pull her own weight, which took Complainant aback. Regarding claim 16, Complainant stated that S1 referred her to EAP counseling. Complainant further stated that she did not provide S1 with any medical documentation because she believed that her EAP counseling should be confidential, although S1 had informed her that she would have to provide medical documentation if she wanted to make a request for a reasonable accommodation. Regarding claim 17, Complainant stated that AW2 refused to sign her sick leave request on the basis that she needed to complete DNA collection duties. Complainant stated that although she realized that her DNA tasks were falling behind, she had informed AW2 that she would work on getting her DNA tasks up to date, but to no avail. Complainant further stated that she did not take leave and had to cancel two doctor's appointments, which resulted in a cancellation fee of $60. Regarding claim 18, Complainant stated that S1 informed her that she had been assigned her "fourth choice" for Institution Duty Officer (IDO) duty weeks, to which Complainant responded that she had not indicated such a choice. Complainant further stated that on July 5, 2011, she received calls at home regarding work matters, but she responded that she was not scheduled to work at that time. Complainant stated that during a meeting the next morning, AW2 claimed that Complainant had been derelict in her duties. She stated that she did not receive anything written about her alleged dereliction of duties. Regarding claim 19, Complainant stated that, on or around November 8, 2011, she received an automated email that she interpreted as notice of the suspension of her Cost Center duties, which included overseeing the budget or approving credit card purchases made by the counselor in the Pre-Trial Unit and the Camp. Complainant further stated that she then contacted the Human Resource Manager, who told her that she thought Complainant was removed from Cost Center duties because she had not taken pertinent training. Complainant also stated that the Business Office told her to go ahead and approve credit card purchases, and she continued to do so without any problems. Regarding claim 20, Complainant stated that, in November 2011, she provided her preferred dates to serve as Duty Officer. Complainant stated that she received her first choice date, but not her second choice despite her seniority, because the Agency reversed the order of seniority for the second round choices and changed the starting dates of two Hispanic managers, so that it appeared that they had more seniority than Complainant. Regarding claim 21, Complainant stated that because she is part of the Pre-Trial Unit, she was tasked with a disproportionately high number of DNA assignments. Regarding claim 22, Complainant stated that, on or about December 6, 2011, the Agency initiated a formal investigation into an incident in September 2011 wherein she stated that she did not want to provide inmates with "eye candy" because they were trying to view the Warden's secretary during the collection of DNA samples. Complainant stated that the secretary reported the incident to S1 and filed an EEO complaint. Complainant further stated that she provided an affidavit during the investigation. She also stated that on February 3, 2012, the Agency issued her a notice of proposed suspension for unprofessional conduct. The accepted claims were investigated from March 21 until July 26, 2012. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). On December 1, 2012, Complainant requested that the Agency issue a final decision. The Final Agency Decision On December 5, 2012, this case was received by the Agency's Complaint Adjudication Office for issuance of a final decision. On December 7, 2012, the Agency issued Complainant a letter that stated that her case was among a number of cases being reviewed, and a final decision on her complaint would be issued "as soon as possible." On September 19, 2013, Complainant submitted a motion to the Commission to sanction the Agency for failing to timely issue a final decision because the Agency had not shown good cause for its delay. On February 10, 2014, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged. On or about February 25, 2014, Complainant appealed the final decision to the Commission. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency erred when it found that she did not prove that that she was subjected to unlawful discrimination or harassment. Complainant maintains that she is an individual with a disability because she is substantially limited in speaking. Complainant further maintains that she was regarded as disabled because she cried at work and they perceived her as being paranoid. Complainant also maintains that she first engaged in EEO activity in 2008, when she notified Agency officials about the posting on her office door of a photograph of a child with a cleft palate and requested an investigation of the incident. Complainant further maintains that she was subjected to unwelcome, severe, and pervasive conduct by Agency management officials because of her disability. The Agency requests that we affirm its finding that Complainant was not subjected to unlawful discrimination or harassment. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS First, we note that Complainant filed a motion for sanctions before the Agency had issued a final decision. However, the Agency subsequently issued a final decision from which Complainant then properly filed an appeal. Therefore, the Commission now considers Complainant's motion for sanctions to be ripe for consideration with her appeal. Violation of EEOC's Part 1614 Regulation EEO Regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency, or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). The procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment. Mach v. Dep't of Defense, EEOC Appeal No. 0120080658 (Nov. 30, 2010). In the case at hand, Complainant requested on December 1, 2012, that the Agency issue a final decision. The Agency acknowledged that it received Complainant's request by December 5, 2012, which meant that it was required to issue a final decision by February 4, 2013.3 Nevertheless, the Agency did not issue its final decision until February 10, 2014, 432 days after the Agency received Complainant's request. As such, the Agency issued its final decision 371 days late. Therefore, the Commission finds that the Agency did not comply with its obligation to issue a final decision in accordance with the time frames set forth at 29 C.F.R. § 1614.110(b). Imposition of Sanctions We note that the Agency has not provided any explanation for its extraordinary delay in issuing the final decision, although the record indicates that the Agency was served with a copy of Complainant's motion for sanctions. We have held that sanctions can be imposed when the non-complying party had an opportunity to submit an opposition to a motion for sanctions prior to issuance of sanctions. See Miller v. Dep't of the Navy, EEOC Appeal No. 01A01735 (June 18, 2004). In this case, we find that the Agency had sufficient notice of Complainant's request for sanctions. Further, we note that the Commission has exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering sanctions in response to various types of violations. See Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120132260 (July 15, 2015) (sanction where agency took 308 days to complete investigation, instead of 180 days mandated by EEO regulations); Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) (agency's delay in completing investigation within 180 days was "no small non-compliance matter" and warranted a sanction); Complainant v. Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where agency failed to submit hearing transcripts on appeal); Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to provide copy of hearing record, including hearing transcripts); Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011) (sanction appropriate where agency failed to provide Commission with motions and responses in support and opposition to decision without a hearing); Kugler v. U.S. Postal Serv., EEOC Appeal Nos. 0120092479, 0120092480 (July 30, 2010) (upholding AJ's sanction against complainant for failure to attend a scheduled hearing); Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005) (affirming decision that upheld AJ's imposition of sanctions against agency for failure to provide investigative reports). Based on the conduct of the Agency in this case and its failure to show good cause for why sanctions should not be imposed, we find that the imposition of sanctions is warranted. Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052. Several factors are considered in tailoring a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). Regarding this case, we note that, under the 29 C.F.R. Part 1614 Regulations, a complainant cannot appeal her case to the Commission until a final decision has been issued. Unlike situations in which a complainant may request a hearing when an agency has not completed an EEO investigation in a timely manner, or a complainant may opt to file in federal District Court when 180 days have passed after the filing of an appeal, a complainant who has requested a final decision cannot bypass the Agency's inaction/delay by raising the matter with the Commission. Instead, EEO regulations require an agency to issue a final decision before the Commission can address the matter on appeal. Thus, it is especially imperative that an agency issue final agency decisions within the regulatory time limits. In this case, the Agency's extreme delay stranded Complainant in a procedural "no man's land" wherein she had no recourse within the administrative EEO process until the Agency issued its final decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052, "the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. In this case, the Agency's extraordinary tardiness undermined the integrity and effectiveness of the EEO process. Additionally, the Commission has previously warned the Agency that its lengthy delay in issuing final decisions was a serious matter of concern. Sylvester v. Dep't of Justice (Bureau of Prisons), EEOC Appeal No. 0120101890 (Nov. 18, 2010). Therefore, we find that the Agency's delay warrants the severe sanction of granting default judgment in favor of Complainant. Moreover, default judgment should impress upon the Agency its need to henceforth issue final decisions in a timely manner. Remedy Following Default Judgment After deciding to issue a default judgment for a complainant, the Commission must determine if there is evidence that establishes the complainant's right to relief. One way to show a right to relief is to establish the elements of a prima facie case. See Royal, EEOC Request No. 0520080052; see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373. Complainant's complaint can be analyzed under both a disparate treatment and hostile work environment analysis. In order to prevail on a disparate treatment claim, 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 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). In order to establish a prima facie case, a complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). To establish a prima facie case of reprisal, a complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse action followed the protected activity within such a period of time and in such a manner that a reprisal motive may be inferred. Simens v. Dep't of Justice, EEOC Request No. 05950113 (March 28, 1996). To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class, e.g., was motivated by complainant's disability; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating a hostile work environment. See Melvin C. v. Dep't of Agriculture, EEOC Appeal No. 0120133106 (Oct. 21, 2015); Marucci v. Dep't of the Army, EEOC Appeal No. 01982644 (Oct. 27, 2000); Humphrey v. U.S. Postal Serv., Appeal No. 01965238 (October 16, 1998); see also 29 C.F.R. § 1604.11 (sexual harassment). After a thorough review of the record, we find that Complainant has established a prima facie case of discrimination or harassment only with regard to claim 1, that in March 2008, an inappropriate magazine photograph was posted on her door by an unknown person. For the remaining claims, Complainant has not raised any inference that these matters occurred because of her age, sex, disability, or EEO activity. With regard to reprisal, Complainant has either not shown that the responsible management officials and coworkers were aware of her EEO activity, or that there was a nexus between her EEO activity and the adverse actions. For the remaining bases, Complainant did not identify similarly-situated individuals outside her protected classes who were treated more favorably than she was treated under similar circumstances, or any other evidence from which an inference of unlawful discrimination could be established. See Montes-Rodriguez v. Dep't of Agriculture, EEOC Appeal No. 0120080282 (Jan. 12, 2012) (complainant's failure to establish a prima facie case precludes her entitlement to reinstatement as a remedy). However, we find that the record contains sufficient evidence to find a prima facie case of harassment with regard to claim 1. Specifically, the record reflects that Complainant has a medical condition that makes it difficult for people to understand her when speaking. As such, we find that Complainant is an individual with a disability because she is substantially limited in the major life activity of speaking.4 See Whitney v. Dep't of Defense, EEOC Appeal No. 07A40010 (July 14, 2014) (Commission found complainant with severe and obvious stuttering substantially limited in the major life activity of speaking); 29 C.F.R. § 1630.2(i). Moreover, the record reflects that Complainant successfully performed the essential functions of her position and is therefore qualified.5 It is undisputed that someone posted a picture of a child with a cleft palate and lip on Complainant's office door. This disturbing action targeted and singled out Complainant for ridicule related to her medical condition, was posted in a prominent place, and made Complainant so upset that she had to take leave. Moreover, we note that photographs can be particularly effective at intimidating, ridiculing, and disparaging employees on a protected basis because of the potency of the visual medium. See Jones v. Dep't of Veterans Affairs, EEOC Appeal No. 0120103340 (Jan. 25, 2011) (Commission found viable claim of alleged harassment existed where African-American's Employee-of-the-Month photo was defaced when it was superimposed with blue eyes and light brown hair). We find that a reasonable fact-finder would conclude that this unconscionable act was severe enough to create a hostile work environment. Consequently, we find that Complainant established a prima facie case of harassment on the basis of disability. As such, we find that there is sufficient evidence to support a conclusion, by default judgment, that Complainant is entitled to relief for claim 1. See Complainant v. Pension Benefit Guaranty Corporation, EEOC Appeal No. 0720130001 (Oct. 9, 2014). CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and issue a default judgment in favor of Complainant; further, we order relief for Complainant as to claim 1, regarding the March 2008 incident of harassment. We REMAND the complaint for further proceedings consistent with this decision and the Order of the Commission set forth below.6 ORDER The Agency is ordered to undertake the following remedial actions: 1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's reprisal and her pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to all management and supervisory officials at its Federal Correctional Center in Tucson, Arizona regarding their responsibilities under the Rehabilitation Act, with special emphasis on the duty to avoid reprisal and to prevent, address, and correct harassment. 3. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." 4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0914) The Agency is ordered to post at its Tucson, Arizona Federal Correctional Center 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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. 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 (M0815) 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 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 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, P.O. Box 77960, Washington, DC 20013. 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 Feb. 23, 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 Complainant does not contest the Agency's dismissal of these claims. Therefore, the Commission will not address the procedural dismissals on appeal. 3 We note that the 60th day after December 5, 2012, was a Sunday (February 3, 2013). As such, the Agency had until Monday, February 4, 2013, to issue its final decision. 29 C.F.R. § 1614.604(d). 4 Under the Rehabilitation Act, an "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). 5 A "qualified" individual with a disability is one who satisfies the requirements for the employment position he holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). 6 We note that Complainant requested compensatory damages as a remedy for her complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133361 17 0120133361