Today I opened my e-mail to find a Daily Kos action on Net Neutrality, titled, "This is How Lyn Jensen Appeared in Federal Court." Well, let me tell you about the time I actually appeared in federal court, or at least lawyers did on my behalf.
This account was originally posted 8/13/08 on www.deviantart.com under the heading, "Sex and the Dept. of Defense: I Sued Rumfeld for Sexual Harassment," under the name Molly Ian. Some names have been changed here.
Recently I shared this with a lawyer who said, "It looks like your case was about ten years ahead of the legal curve."
When a federal Dept. of Defense co-worker who I'll call Shitzmouth started braying daily how he beat his wife's ass, I complained to my boss. 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.
Exactly how many DOD cases involving sexual harassment were filed against the DOD in FY 1997 are not publicly available. In FY 1999, the closest year to 1997 that federal statistics are available, 8,657 federal-sector cases total were filed with the EEOC.
"You'll have to adjust your attitude," was all my boss said about the sadistic Shitzmouth that boasted of beating women, and she 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 from a handful of people who believed me.
In 1994 I had been a federal civilian employee for a decade, 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,, who I'll call Witchini. (She boasted of being an actual practicing witch.) She put me in a cubicle alongside several military men and one quality assurance specialist, Shitzmouth. Towards the end of each day, when they and I were often the only personnel present, Shitzmouth 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 Witchini, her response ranged from interfering with my meeting with my union rep, Mr. McJimson, to removing me as Federal Women's Program Manager, a duty I had performed for years with no complaints.I reported each allegation of retaliation to McJimson, a member of the National Association of Government Employees (NAGE).
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.
Management 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, who'll Ill call Sherman, to represent me. Shitzmouth, the military men, and Witchini denied everything.
However, a secretary from another unit testified very reluctantly that she once heard Shitzmouth swear. McJimson later told me she came to him afterwards, terrified. She said her boss had told her never to testify negatively against Shitzmouth again. He urged her to complain but she refused. She was afraid of losing her retirement.
The very next day management went for my throat. In one "alleged incident" one black X appeared mysteriously on the driver's door of Shitzmouth's Chevy Suburban and another on Witchini's, as they sat in the Douglas lot with thousands of employees coming and going. Shitzmouth 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 Johnny Wayne (not his real name) spent the next decade 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," Mr. Sherman said.
That afternoon I got a phone call from Witchini's boss, Col. Eugene Klutz, who said he was referring me to employee counseling (that old ploy, mandatory psychiatric evaluation). He repeatedly refused to say why. I reported the call to Mr Sherman.
So began days of hoping it was all a nightmare and knowing it wasn't. Sherman 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 Klutz 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 guard with a loaded gun.
The guard let us go but Klutz 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 Shitzmouth and Witchini, 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."
The NAGE lawyer had me send a letter from my doctor stating my fitness for duty but soon I saw a piece of paper that said "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."
For a while I trusted my union lawyer to handle the bureaucratic wilderness as more pieces of paper were processed; more meetings scheduled, more phone calls came and went, as I coped with all this through a CFS fog.
Sherman 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.
In July 1997 we received a right-to-sue letter but the case was so flimsy I couldn't believe someone would show some sense before we literally made a federal case of it, so I attempted to navigate through the EEOC procedures.
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 survivors (or just plain victims) of discrimination, harassment and retaliation. Neither women's groups nor government 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'd been a ballplayer on steroids, elected officials would've been rushing for a photo op.
Besides the EEOC case, Sherman 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, something about how we could not inconvenience management (nothing about my inconvenience).
Sherman called six witnesses but I was the only one who testified that day. Neither my mother nor my best friend who were prepared to testify I could not have committed the acts in question, nor two doctors who noted the decline in my health that began after the whole crock of BS went down, 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.)
As for management witnesses, Witchini and her secretary were caught in lies that even the judge laughed at.
The judge said he would take McJimson's testimony later, by phone, and Sherman said I would not have to be present. I figured with my CFS that was a good thing. Maybe I was wrong. "We should hear a decision in a couple of months," Sherman said.
"This is the worst decision we've ever seen," he 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'd 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 wasn't any. I never got a straight answer about that, whether it was a deliberate strategy, or his office screwed up. Like a battered wife, I stayed with him because I didn't think anyone else would support me.
By the time the EEOC cleared their backlog to get to 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, my lawyer, 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 delaying EEOC investigation of 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.
Finally in 2000 Sherman called to ask if I would take $50,000 to settle (drop) the case. He wasn't even passing along an actual settlement offer. First he'd talked me into suing for $300,000 and now he was trying to talk me into taking $50,000 without even a hearing, without even any management offer. I refused.
The closest I ever got to an EEOC hearing was a three-on-one phone gang-bang with Sherman, DOD lawyer Johnny Wayne (who I long suspected of engineering the whole charade) and an EEOC judge all pressuring me to drop my demand to be rehired. All Wayne offered was $1,000. The judge said the case wasn't worth anything more anyway, and I reminded her she hadn't heard the case yet.
An EEOC judge may hold a hearing or issue a decision "on the record." So the EEOC has no incentive to not take the lazy way out. Lawyers and judges 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 interviewed a single witness. In late 2002 the EEOC judge issued her decision, 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 case or closure. By now I wanted to go to federal court but the NAGE lawyer appealed the case to the next administrative level anyway, which took another two years and produced the same result.
Thanks to my CFS fog, I missed a fine point of legalese: No lawyer, EEOC rep, or anybody else ever pointed that out to me a clause hidden deep in the fine print, "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."
Between 1997 and 1999 I had 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. With evidence mounting that I was possibly, thanks to my treatment in the DOD, too disabled to work, I filed for disability, first with the state Employment Development Department, then with the Social Security Administration.
Sherman consented to represent me to the SSA. It took a year to get a hearing and, as common with first attempts, my SSA request was denied. Sherman said he'd appeal it--just like with the MSPB case, he didn't.
I filed a brand new SSA case, and searched for new lawyers to handle the EEOC and SSA cases. By now the EEOC had denied me once again, and I was racing the clock to beat the deadline for filing a federal suit. I found out Gloria Allred's office could care less.
"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."
"It's a federal case that involves sexual harassment and retaliation in the DOD under EEO law. Now will you please let me speak to an attorney?"
"You have to tell me what kind of a case it is first."
So I wrote Allred a letter. In response I got a 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. She'll take the case of a woman who didn't like the restaurant menu she got, but she wouldn't take mine.
I began to wonder if I'd 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 foot the bill and Alcala squeaked the case into 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.
McJimson and two other sympathetic friends who still worked for the DOD helped me figure out how much to sue for. 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. (I hope the judge who said it wasn't worth more than $1,000 reads this.)
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 offers to settle. A couple of conferences were scheduled and canceled. I expected a courteous phone call that would either say, "We're going to trial" or "We're going to appeal."
Instead what could've been the horrible end came by e-mail, "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 other lawyers (ones that wouldn't take my case) complain about the difficulty of getting an EEO case past Summary Judgment before.
My case couldn't end this way. I told Monterrosa I was appealing, whatever he said, and the bureaucrats finally cracked a little. We were offered mediation, and in 2006 Monterrosa and I met with a federal mediator at a federal courthouse. The DOD lawyer I long suspected had rigged the whole thing was still haunting the proceedings. I probably should have objected to him but didn't.
We talked Johnny Wayne up to $30,000 (from his dumbass $1,000). 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 might 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 essentially gave me $30,000 to just go away after twelve years. I must've been getting to be a considerable burr in their seat.
I entered my resume on the online federal database, the only route to re-enter federal employment anybody is willing to talk to me about. Counselors have tried to dissuade me from seeking federal employment again because of the case. I have no way of knowing whether prospective federal employers know of my EEO-related history or not. I've never received any job offer or job inquiry from the federal database.
The $30,000 payout happened in 2007, thirteen years after the Shitzmouth roared. Monterrosa got one third. My mother and I split the rest to pay our bills.
One more bit of business remained: my SSA disability case that was partly brought on by the DOD case.
One SSA judge refused to approve my disability because, he said, he had "Christine Schneider" waiting to testify. If this Christine Schneider was the same person who dismissed my EEO case, perhaps she will kindly explain what she was doing interfering with my SSA case. Did the DOD try and reach its tentacles into the SSA? I'll never know.
I got a lawyer the SSA listened to and in 2008, I finally was declared eligible for SSA disability because of my CFS. I prefer to think that were it not for my CFS I'd been able to return to federal service but were it not for my DOD case, my health may not have spiraled into disability.