Federal Employees Face Hurdles Pursuing Sexual Harassment Claims
(Bloomberg Businessweek) -- For three decades, Lisa Kincaid relished her work as a special agent for the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives—the agency that pursues gun runners, arsonists, and bombers. It wasn’t until she began looking into sexual harassment at the agency as an internal affairs investigator that she felt truly threatened.
In 2013, Kincaid was assigned to look into a claim filed by another veteran ATF special agent, SherryAnn Quindley, who said a male supervisor had harassed her and at least five others. After conducting dozens of interviews, Kincaid concluded that the supervisor had put his hand up one woman’s skirt, discussed oral sex in front of others, and bullied and belittled female employees.
When she pushed for a fuller investigation into the alleged misconduct, Kincaid met resistance from the supervisor’s boss at the ATF, who she says went out of his way to protect the subject of Quindley’s complaint. Eventually, the case was taken away from Kincaid, who then found herself passed over for two job transfers and shunted into a rank-and-file position in a unit she once ran. “I felt hugely betrayed,” she says.
The #MeToo movement has felled powerful men in politics, business, and the media, but it’s largely bypassed the federal government, with its more than 2 million workers. Federal employees file about 500 complaints annually of workplace sexual harassment, which the U.S. Equal Employment Opportunity Commission acknowledges often goes unreported in government and the private sector. Women in government may be especially discouraged from pursuing claims, lawyers say, because the already convoluted process to do so has been allowed to break down at numerous points.
While the private sector is no Eden for women pursuing harassment claims, its employers often seek to resolve them quickly and carry insurance to cover settlements. Employment lawyers are also more willing to take their cases to court in exchange for a promised cut of settlements or awards.
Federal workers face a system with far greater limitations. Their legal pipeline is “absolutely slower than the private sector,” says Fran Sepler, who advises employers on harassment matters. Workers in the federal government have just 45 days from the time of an incident to file a complaint, which first has to go through a mediation or counseling process. If this fails, agencies have more than half a year to investigate whether they, or their employees, were at fault. People who pursue complaints beyond the agency level often wait years for administrative judges to rule on their cases. And they must overcome high legal barriers to prove the treatment they received was due to their sex, gender, age, or religion. Unlike private workers, federal employees aren’t entitled to punitive damages.
“I’ve seen the system work” in the past, says Cathy Harris, a Washington lawyer who represents harassment victims. But, she says, enforcement has degraded over time, and officials who harass colleagues may have little to fear. “The ones engaging in these discriminatory practices have no problems, because they’re never going to be punished.”
Kincaid’s investigation focused on Billy Wright Jr., then the deputy chief of ATF’s special operations division, and Charles Smith, his division chief, according to a lawsuit she filed last year. Kincaid’s preliminary investigation produced a 272-page internal report, which she says documented harassment, including the groping incident, talk of sexual conquests, and demeaning comments. She thought the case warranted a full investigation, but her supervisors in the ATF’s internal affairs unit refused to approve her request to continue the harassment inquiry. She says one supervisor told her, “Being an asshole’s not against the law.”
Quindley’s case languished until several of the women involved approached Senator Charles Grassley (R-Iowa), who chairs the Senate Judiciary Committee. In a 2015 letter to the U.S. Department of Justice, which oversees the ATF, Grassley referred to the women as “whistleblowers” who “allege a wide variety of abuses, and expressed concern for dozens of other female agents who are too fearful of possible retaliation to come forward.”
A week later, the Justice Department’s complaints adjudication division ruled in Quindley’s favor. The ruling said Wright discriminated against her and subjected her to a hostile work environment, according to a confidential Justice Department document reviewed by Bloomberg. It also said Smith condoned the hostile work environment. Both men were required to undergo anti-harassment training with the ATF’s equal employment office, according to Kincaid’s lawsuit, and the government settled with Quindley for $533,000, according to the Boston Globe. (The settlement is private, and neither Quindley nor her lawyer would confirm this number.)
“Although harassment cases can be very long and difficult, female law enforcement officers have successfully challenged the government in federal court and elsewhere,” says Robert Seldon, Kincaid’s attorney at the Washington, D.C. firm of Seldon Bofinger & Associates. Grassley’s demand for information “stopped ATF from making a secret of its wholesale sex harassment.”
Kincaid’s legal odyssey was just beginning. After complaining internally about the treatment she received while conducting her investigation, she filed a federal lawsuit last September tying the missed job opportunities and reassignment to retaliation from her managers, who she says refused to take her harassment investigation seriously. The managers in charge “were protecting each other at the expense of the women who were harmed,” says Kincaid. “To them, it’s just a game. They want to win, and they’re going to win at all costs. It doesn’t matter who they hurt to do it. It’s hard to stand up and do the right thing.”
Citing pending litigation, the ATF declined to comment on Kincaid’s case. Acting Director Thomas Brandon said in a written statement that he holds all ATF employees accountable for complying with anti-harassment policies and that any violation would result in prompt corrective action.
“ATF strictly adheres to Federal laws, regulations and Department of Justice policies prohibiting sexual harassment,” Brandon wrote. “As the senior executive at ATF, I am professionally and personally committed to maintaining a workplace free from harassment and all other forms of discrimination. This commitment includes holding all ATF executives, managers, supervisors, and employees accountable for complying with anti-harassment policies.”
Wright didn’t respond to phone and email requests for comment. Smith “was a decorated agent of the ATF and served honorably and admirably for 30 years before his voluntary retirement,” according to a written statement provided by his attorney. “He never condoned nor was aware of any discrimination directed toward any employee.”
In a separate decision released in November 2015, the Justice Department’s inspector general found that an ATF supervisor gambled while on duty and misused his government car and travel card. Kincaid’s husband, a retired ATF agent, identified that supervisor as Smith in a newsletter he published and distributed to 800 people.
In a Jan. 2 court filing, government lawyers said Kincaid “confessed” to leaking Smith’s identity to her husband, a claim she denies. The Justice Department has stated in court filings that Kincaid’s discrimination and retaliation claims are without merit. They also argued that anti-harassment protections don’t apply to internal affairs work.
Kincaid has had to take out a home equity loan to fund her lawsuit. She speaks regretfully of a future retirement party that she knows nobody will throw. “You give 30 years of your life to something and you want to have fond memories of it,” she says. “I just resent having to go through this. It’s not the women’s fault.”
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