Lyn Jensen's Blog: Manga, Music, and Politics

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Location: Anaheim, California, United States

Regular contributor ("Carson City Limits" and other content) for Random Lengths (circulation 56,000) in San Pedro, CA, 2001-present. Manga reviewer: LA Alternative (circulation 150,000), 2005-2006. Some manga reviews also ran in NY Press around this time. Entertainment reporting: Music Connection (circulation 75,000), 1983-1906. Travel writing: Oakland Tribune (1998) and Life After 50 (2006). Other bylines: Goldmine, Star Hits, Los Angeles Reader, Los Angeles Times, Long Beach Press Telegram, Blade, BAM, Daily Breeze, LA Weekly. Specializations include community news reporting, writing reviews (book, theater, concert, film, music), copywriting, resumes, editing, travel writing, publicity, screenwriting, lecturing, and content development. Education: B. A. Theater Arts, UCLA. Post-grad work, Education, Chapman University.

Friday, June 29, 2018

MY OWN #ME TOO STORY: Sex and the Dept. of Defense

One Woman's Story:  I Sued Rumsfeld for Sexual Harassment

Long before there was a #metoo movement I blogged about my #metoo story while working as a civilian clerk/secretary for the Dept. of Defense. After being unable to find a print outlet for my personal experience, I first posted it on the Deviant Art site, as Molly Ian, my cyberspace pen name at the time. It has since made print in Bloglandia: The Journal of Bloglandia, Vol. 1, Issue 2 and has appeared in edited form on Daily Kos.  

Getting fired from the federal government is possible.  I complained about sexual harassment, and that did the trick. 

 When a co-worker started braying daily that he beat his wife's ass, I complained to my boss I thought the man was not behaving appropriately in the workplace, which happened to be the Department of Defense (DOD), and so began one of those thousands of sex harassment cases against the DOD that was filed in the nineties and then moved out of the news cycle for everyone except the complainants.
  "You'll have to adjust your attitude,"was all my boss said, and then performed a series of actions that she may have considered attitude adjustment but I considered retaliation.
   So began a twelve-year nightmare I bore with only my meager knowledge of sexual harassment law and some assistance (for better or worse) from my union.
I had been a federal civilian employee for nearly twelve years, as an administrative professional, with glowing performance reviews and several awards and promotions, back at work after missing nearly two years with Chronic Fatigue Syndrome (CFS).
   We worked at what was then the Douglas plant in Long Beach , overseeing construction of C-17 cargo planes.

    Our agency underwent a re-organization and I got a new boss, Deborah Corsini.  (Imagine working for Linda Tripp of Monicagate infamy, and you will get a rough idea of what my new boss was like.)  She put me in a cubicle alongside several military men and one quality assurance specialist, Jerry Shipp.  Towards the end of each day, when they and I were often the only personnel present, Shipp for some reason took to announcing, "I'm going to go home now and beat my wife's ass," and other such pleasantries about abusing women's and children's body parts.
  My doctor noted a downturn in my CFS, and my illness cost me some wages.  After I complained to Corsini, her response ranged from interfering with my meeting with my union representative, Dan McJimson, to removing me as Federal Women's Program Manager, a duty I had performed for years with no complaints.  Performing such a collateral duty is common in the DOD, where matters of discrimination law are not directly handled by the Equal Employment Opportunity Commission (EEOC).
 I reported each allegation of retaliation to my site EEO officer, Opal Richardson, who also performed her EEO functions as a collateral duty.  Despite Corsini's pressure, I asked McJimson, a member of the National Association of Government Employees (NAGE), to represent me. 
 We proposed to management two settlement options.  They could transfer me, or they could pay me the wages I had lost when my CFS flared up, along with training and apologies all around.  
  They refused and an EEO hearing was held at the plant on Thursday, April 26, 1996, two years after my initial complaint.  McJimson persuaded a NAGE lawyer, Harry Berman, to represent me.  Shipp, the military men, and Corsini denied everything. 
 However, a secretary from another unit testified very reluctantly that she once heard Shipp swear.  McJimson later told me she came to him afterwards, terrified.  She said her boss had told her never to testify negatively against Shipp again.  He urged her to complain but she refused, saying she was afraid of losing her retirement.
 Events took a turn into the twilight zone the next day.  Photos provided evidence of one alleged incident, one black "X" placed conspicuously on the driver's door of Shipp's Chevy Suburban and another on Corsini's, as they sat in the Douglas lot with thousands of employees coming and going.  Shipp later admitted to being in the parking lot around the alleged time of the incident, while I had witnesses (and management witnesses, too) admitting I was not.

 Other stories that management and their lawyer, Wayne Carter, spent the next ten years spreading were even more transparent, ranging from innuendo about my CFS to mysterious anonymous phone calls that my witnesses and phone records easily rebutted.
   "The word evidence is used very loosely here," Berman said.  
  After the hearing I took Monday off for medical treatment and so began days of waking up hoping it was all a nightmare and knowing it was not.  That afternoon I got a phone call from Corsini's boss, Col. Eugene Kluter, who said he was referring me to employee counseling.  He repeatedly refused to say why.  I reported the call to Berman.

  As Kluter did not say,"I order you not to go to work" (ordering a civilian) Berman advised me to meet McJimson at work the next day and explain I was already under medical care, thank you.  Next morning the armed guard at the Douglas gate physically yanked my badge from my person and my pass from my car.
 Just a minute too late to witness it, McJimson arrived and said Kluter was refusing me entrance.  We got in my car.

   The guard leaned through my car window and screamed in my face and McJimson's, "Where are you going?"

  "Off-site!" I said.
  "But where are you going!" shrieked this guy with a loaded gun.

  "This is my union rep, are you interfering with union business?" I asked.
  "Knock off that macho shit!" said McJimson to a screaming guy carrying a loaded gun.
  The guard let us go but Kluter did not.
  The next day pieces of paper began arriving at my home, first a "Direct Order" that forbid me to make contact "on or off duty" with Shipp and Corsini, like I would want to. 
 Then came a mandatory referral to "Employee Assistance Program," complete with paperwork for drug and alcohol rehab, and a "Request for Medical Documentation."
 Berman had me send a letter from my doctor stating my fitness for duty but soon came a "Notice of Removal" that accused me of "threatening attacks on employees" and "failure to obey a management directive."
  That August came the letter that said, "Removal."

 Berman became my guide through a bureaucratic wilderness as more pieces of paper were processed; more meetings scheduled, more phone calls came and went.  He put forward demands for relief that included restoration to the federal service, $300,000 in compensatory damages, apologies, training, attorney's fees and clearing my personnel file.
  Exactly how many DOD cases involving sexual harassment were filed against the DOD in FY 1997 are not publicly available but it is possible to get some idea of the magnitude of the EEOC workload by noting that year how 80,680 private-sector cases of all types were filed, including 24,728 charges of sexual harassment/discrimination and 18,198 charges of retaliation. 
 In FY 1999, 2the closest year to 1997 federal statistics are available, 8,657 federal-sector cases total were filed with the EEOC.
  In July 1997 we received a right-to-sue letter but pursued a hearing with the EEOC.  I wanted to avoid a costly legal fight, considering how the so-called management case was so transparent.  I suggested negotiating a settlement but Berman said, "They're probably just going to offer to clear your personnel file" to cover up the firing.  That meant they'd win and I'd lose.

  I searched in vain for assistance for victims of discrimination, harassment and retaliation.  Neither government agencies nor women's groups offered any.  Media outlets were not interested in my story.  Complaints about the EEOC' s handling of my case to my elected officials went nowhere.  Maybe if I had been a ballplayer on steroids, I would have got a Congressional hearing.

  Besides the EEOC case, Berman filed a charge of wrongful dismissal with an obscure federal agency, the Merit Systems Protection Board (MSPB).  Anthony Ellison, an MSPB judge, held a hearing in June 1997 at the DOD office in the Douglas plant, instead of neutral territory, something about how we could not inconvenience management (nothing about my inconvenience).
 Berman called six witnesses but I was the only one who testified that day.  Neither my mother, my best friend, nor two doctors who noted the decline in my health were called before the judge.
 One lawyer later noted how, with those witnesses standing by, management said nothing about anonymous phone calls or my CFS.
  The judge said he would take McJimson's testimony later, by phone, and Berman said I would not have to be present.  I figured with my CFS that was a good thing.  Maybe I was wrong.

  As for management witnesses, Corsini and her secretary were caught in lies that even the judge laughed at.
  "We should hear a decision in a couple of months," Berman said. He and McJimson assured me the case went very well.
  "This is the worst decision we've ever seen," Berman said when the decision came four months later.  "He's just repeating all these management assertions and assumptions as if they were absolute facts, and is ignoring all evidence to the contrary."

  He assured me there would be an appeal.  Three years later I got tired of waiting for the result of that appeal and did some follow-up through my CFS fog, only to find there was never an appeal. Berman never gave me a straight answer about that, whether it was a deliberate strategy to drop the MSPB case, or his office screwed up.

 By the time the EEOC was done with my case, Clinton was no longer president.  An EEOC pre-hearing was scheduled for December 1997 but a terrible virus was going around and everyone--me, Berman, the judge, and the EEOC rep---caught it. Then the EEOC judge retired, and an EEOC staffer later told me that sent my case to the bottom of the EEOC docket again.  EEOC regulations say a case is supposed to be "investigated" in 180 days but EEOC stats show the actual average time for federal-sector cases is 267 days. The DOD, err--boasts--the longest average time for any federal agency with more than 500 days.  The DOD agency I worked for, the Defense Contract Management Agency (DCMA) averages as long as 961 days.

 An EEOC spokesperson, Santos Albarran, insists cases are usually investigated and closed in 180 days.  He says delays indicate a lack of cooperation. If that is so, no federal agency has a good record of cooperating with the EEOC, the DOD being the worst, and the DCMA, the worst of the worst.

  Nothing happened until late 2000, when Berman called to ask if I would take $50,000 to drop the case. He was not passing along an actual settlement offer, and I refused.  First he had persuaded me to seek a settlement of more than $300,000 and now he was pressuring me to drop the case before there was even a hearing.

  Next came a three-on-one phone gang-bang with Berman, Carter and an EEOC judge all pressuring me to drop my demand to be rehired.  Carter offered $1,000 to drop the case. The judge said the case wasn't worth anything more anyway, and I reminded her she hadn't heard the case yet. I refused the "offer" and Berman and I didn't speak for days after.

 That was the closest I ever got to an EEOC hearing. An EEOC judge may hold a hearing or issue a decision "on the record." Lawyers and judge simply spent the next two years trading paperwork, throwing around terms like "summary judgment" and "res judicata" and "collateral estoppel."  The EEOC examined no original documents and never called a single witness.

 In mid-2002 the EEOC judge issued her decision, heavily referencing the MSPB decision, in Berman's words, again repeating management allegations as absolute facts and ignoring all contrary evidence.
  According to EEOC statistics, a finding of  "no reasonable cause" accounts for closing nearly half of all sexual harassment cases, many more than any other type of closure.  I suggested to Berman it was time to sue in federal court but instead he appealed the case to the next administrative level, which took another two years and produced the same result.

  Ironically I now find hidden deep in paperwork, "A civil action may be filed any time after 180 calendar days of filing an appeal to the EEOC if there has been no final decision." No lawyer, EEOC rep, or elected official's office ever pointed that out to me, and at any rate, an escape clause does not make up for inefficiency and lack of cooperation.

 My CFS caused bigger problems than missing such fine points of legalese.  Between 1997 and 1999 I got several jobs comparable to what I had held in the federal service, only to lose them all because no boss would accommodate my CFS.  Disability-related complaints went nowhere. With evidence mounting that I was too disabled to work, I filed for disability, first with the state Employment Development Department, then with the Social Security Administration.  I went back to school and lived on financial aid for a while. I did freelance writing.
  Berman represented me to the SSA and, after a year of waiting, we presented medical evidence of my disability at a hearing. When I was denied, we appealed it.  The appeal was denied in October 2002, and Berman said he'd take care of it. I found out a year later he did not and the case was dead, just like the MSPB case.
 It was time for a messy divorce from the hard-working but erratic union lawyer who I both credited and blamed for keeping my EEOC case alive for so long.
 More than a month went by as I went from lawyer to lawyer.  The EEOC final decision arrived, finding for management, of course.

  I raced the clock to beat the deadline for filing a federal suit.  An experience with Gloria Allred's office proved typical. "You have to tell me what kind of a case it is," said her receptionist.
  "It's a sexual harassment case," I said.
  "But you have to tell me what kind of a case it is."
   "It's a federal case that involves sexual harassment and retaliation."
  "But you have to tell me what kind of a case it is."
   So I wrote Allred a letter.  In response I got a poor-looking machine-generated form letter that read, in part, "If you desire to pursue this matter further, I would strongly urge you to seek a lawyer immediately." I thought that's what I was trying to do.
  Forget about getting a lawyer pro bono, it was beginning to look like I would have to file the case myself. Then I got a call from Carlos Alcala, who worked for Robert Monterrosa, a Sacramento lawyer.  He said he had heard of my case from another lawyer.
  "They made this all up, didn't they?" he said when he saw management's twisted nonsense. My mother agreed to bankroll the fees and Alcala squeaked the case into Los Angeles federal court on the last possible day.  I went to the courthouse myself to make sure. My sex harassment case was filed against Donald Rumsfeld, making for a single bright spot in the whole slimy miserable mess.

  Next came calculating how much to sue for.  McJimson and two other sympathetic friends who still worked for the DOD helped me with the figures.  Between lost wages, promotions, medical bills, sick and annual leave, health insurance, union dues, Medicare, Social Security, legal expenses, and $300,000 compensatory damages, the case was worth nearly $700,000.
 On December 12, 2003, Alcala and Monterrosa argued before Judge Christine Schneider, that the case should not be dismissed.  Monterrosa informed me I did not need to be present, and I figured with my CFS that was a good thing.  Maybe it wasn't.

    Months went by and the federal lawyers rejected our offer to settle out of court.  A couple of conferences were scheduled and canceled.
 I expected a phone call that would either say, "We're going to trial" or else "We're going to appeal."

  Instead came an e-mail that still pains me to read it, "This letter is to inform you that the Court granted Summary Judgment and dismissed your case.  I was disappointed with the Court's decision however, because the Court ruled on facts and not law; I believe an appeal would not be successful."

   A spokesperson for the US Courts says dismissals are rare, but I'd heard lawyers complain about the difficulty of getting an EEO case past Summary Judgment before.
  My case could not end this way.  Once Monterrosa filed the appeal I "ordered" him to, the bureaucracy finally broke our way.

  The appeals court was clearing its backlog through mediation.  On October 4, 2006, Monterrosa and I met at the Pasadena federal courthouse with a federal mediator, Roxanne Ashe, and two federal attorneys, Ericka Johnson-Brooks and Carter, still haunting the proceedings.  I probably should have objected to him but didn't.

   Ashe put us in separate rooms and said we'd work until we reached a settlement or talks broke down (That was great, really great for my CFS). Carter initially offered $5,000, which according to EEOC data is about what the average case is settled for. "No amount of money can make up for what was done to you," Ashe kept saying, as if I were too dumb to figure that out.

    "But money is how we remedy it," I said. Carter finally topped out at $30,000, which research shows is generous by EEOC standards.

  "I pushed and I really think that's all the higher he's able to go," Ashe reported back.

  If I declined the offer, the DOD might schedule more talks later, or they might just wait out the appeal, which could take another two to five years. Even if I won the appeal, I had to consider how my witnesses may be unavailable by then.

 I settled for $30,000 along with an offer to clear my personnel file.  The formal settlement was supposed to arrive in a week, the check in a month.  When the settlement came, one clause read, "Plaintiff agrees she will not seek future employment with the DCMA."

  I called Monterrosa, and said, "I didn't agree to that."
  "Oh, that’s standard," he said.
   "Nobody told me," I said.
 He tried and failed to get the clause excised, then advised against backing out of the agreement, including the clause I never agreed to.
 So the DOD never agreed to rehire me, but I never dropped my demand to be re-hired, either.   Maybe that makes it a win-win.

 My resume is entered in the online federal data base, currently the only possible route to federal employment that I know of.  I have no way of knowing whether prospective federal employers know of my EEO-related history or not.
  2007 was nearly half gone by the time the settlement check arrived, by regular mail, and it needed Monterrosa's signature as well as mine.  I mailed it to him by certified mail, but he was stuck for weeks on an out-of-town case.  Eventually he took his $10,000 cut and sent me $20,000.  Half went to compensate my mother for bankrolling the case and the other went to pay the bills I had amassed.
 The end was at last reached but one "Twilight Zone" incident remains.  I recently went before an SSA judge to ask for an extension on my new SSA case, being handled by another lawyer.  The judge refused because, he said, he had "Christine Schneider" waiting to testify about my "case."
 If this Christine Schneider was the same federal judge who dismissed my EEO case, perhaps she will kindly explain what she was doing interfering with my SSA case.
   I refused to play along, and the SSA judge issued a denial of benefits.  My new lawyer appealed and in 2008, I finally was declared eligible for SSA disability because of my CFS.

  Living with CFS and sexual harassment are both dark closets our society still allows, and perpetrators within the DoD feed off that darkness.  Thousands of women like me have spent the last decade bungling through the federal bureaucracy while living in the isolation only we know. I still have not adjusted my attitude.