U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box Washington, DC Thuressa Ballard-Freeman, Complainant,

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1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box Washington, DC Thuressa Ballard-Freeman, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No Hearing No X Agency No. P DECISION Following its May 30, 2012, final order the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R (a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e et seq. For the following reasons, the Commission REVERSES the Agency's final order and affirms the AJ's finding of discrimination and relief ordered. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tool Room Officer at the Agency's Metropolitan Detention Center facility in Los Angeles, California. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when on or about March 19, 2009, a Human Resources professional employee (HR1) and a coworker left a message on Complainant's work voic in which they could be heard berating her and using extremely strong language while discussing me settlement of a prior EEO complaint involving sexual harassment that Complainant had filed some years earlier. Specifically, among other comments, HR1 stated, "[Complainant] was fucked up. My personal opinion is that they did have a relationship. Then when maybe she found out he was banging [another woman] and all of a sudden it came in sexual harassment and the bitch got paid for it."1 1 In her formal complaint, Complainant also alleged she was discriminated against on the basis of her sex when: (1) a male supervisor slightly brushed up against her body while passing her

2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case held a hearing on November 21-22, 2011, and issued a partial decision on March 19, 2012, finding that Complainant established she was subjected to reprisal discrimination. The AJ issued an order entering judgment, dated April 10, 2012, directing the Agency to: (1) pay Complainant $5, in compensatory damages; (2) provide training to the EEO Director and relevant management officials; (3) consider imposing discipline on the EEO Director and relevant management officials; and (4) post a notice of the finding of discrimination. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that the incident alleged did not rise to the level of actionable harassment. Additionally, the Agency found that the AJ improperly imputed liability for the alleged harassment as the Agency took immediate and appropriate corrective action. The instant appeal by the Agency followed. Although the Agency contests the finding of discrimination, the Agency has not specifically challenged the remedies ordered by the AJ if there were to be a finding of discrimination. In her response, Complainant requests that we affirm that AJ's finding of discrimination. Complainant has filed no appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R (a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pull man-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 VLB. (November 9, 1999). in the hallway; and (2) Complainant was directed to remove her Agency issued 24-hour key and her personal keys from her agency issued key chain. Complainant withdrew these claims, as well as the basis of sex, prior to the hearing. Additionally, Complainant attempted to amend her complaint to include the issue of denial of official time. The AJ denied Complainant's motion to amend her complaint. Complainant has filed no appeal, so this denial of the amendment is not at issue in this decision.

3 It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (llth Cir. 1982). In the case of coworker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No (June 18, 1999). An Agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Department of the Air Force, EEOC Request No (July 8, 1992). Here, the AJ found that HRl's actions amounted to unlawful retaliatory harassment, in that it would deter a reasonable person from engaging in the EEO process. Specifically, the AJ found that, "[HRl's] language was so gross and offensive that it expressed utter disgust for the EEO process which resulted in corrective action being taken against an alleged harasser of Complainant." Additionally, the AJ found that there was a basis for imputing liability to the Agency. Specifically, the AJ found that the Agency failed in its duty to take immediate and appropriate corrective action when notified by Complainant of the harassing conduct of HR1. The AJ found that management officials were aware at the time Complainant reported the harassment that HR1 was set to retire within two weeks, however the Agency did not interview HR1 or take any other action with respect to Complainant's report of harassment until after he had retired. Further, the Agency waited nearly eight months before contacting HR1 for a statement with respect to Complainant's allegations. The AJ found that the Agency's investigation was inadequate and subject to unreasonable delays. As such, the AJ found that the Agency was liable for the unlawful retaliatory harassment. We find that the AJ's determination is supported by substantial evidence in the record. With respect to the compensatory damages award, we note that as there is no precise formula to calculate nonpecuniary damages. An award of nonpecuniary damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7lh Cir 1989)). Here, Complainant testified that she suffered embarrassment and anger over the phone call, and that it caused her to withdraw from co-workers. Based upon the evidence provided by

4 Complainant, the AJ found that $5, was the appropriate award for Complainant's nonpecuniary, compensatory damages. We find that this amount is appropriate and consistent with the amount awarded in similar cases. The Commission further finds that an award of this amount is supported by substantial evidence and is consistent with the Commission's awards in similar cases. See e.g., Reddish v. United States Postal Service, EEOC Appeal No (April 28, 2009) ($4, awarded for finding of reprisal resulting in embarrassment, humiliation, distress, headaches and elevated blood pressure); and Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003) ($5, awarded for complainant's complaints of dejection, stress, and emotional pain), request for reconsideration denied, EEOC Request No. 05A30898 (August 29, 2005). CONCLUSION After a careful review of the record, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence and the AJ correctly applied the appropriate regulations, policies, and laws. Accordingly, we REVERSE the Agency's final order and direct the Agency to comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency is ordered to take the following remedial actions within 60 calendar days of the date this decision becomes final: (1) The Agency shall pay Complainant $5, in nonpecuniary, compensatory damages. (2) The Agency shall provide EEO training to all responsible management officials regarding their responsibilities under EEO laws, with a special emphasis on the anti-retaliation provisions. (3) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that corrective action has been implemented.

5 POSTING ORDER (G0610) The Agency is ordered to post at its Los Angeles, California facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R (e)(l)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R (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 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 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 (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 , , and 29 C.F.R (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 and 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

6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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.E.R ; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). AH requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 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 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 (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.

7 RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must he filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: Carlton M. Hadden, Director Office of Federal Operations May 1, 2014 Date

8 CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. 1 certify that this decision was mailed to the following recipients on the date below: Thuressa Ballard-Freeman 1754 Treseder Cir ElCajon, CA Leland E. Coffee Magnolia Ave, #210 Riverside, CA Mina Raskin, Director, EEO Staff Department of Justice (BOP) 320 First St., NW HOLCBldg., Room 1038 Washington, DC May 1, 2014 Date Compliance and Control Division

9 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an order by the United States Equal Employment Opportunity Commission dated which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. has occurred at the Department of Justice's Metropolitan Detention Center facility in Los Angeles, California (hereinafter this facility). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. This facility was found liable for retaliatory harassment against an employee. The facility was ordered to pay $5, in compensatory damages, consider taking disciplinary action against responsible management officials, and provide training to responsible management officials regarding their responsibilities under EEO law. This facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. This facility will comply with federal law and will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law. Signature Title Date Posted: Posting Expires: 29C.F.R. Part 1614