We have a lot of respect for the top leaders at the DOD Education Activity (DoDEA), but based on a new EEOC decision it looks like they have a lot of work to do with changing organizational values at the lower levels. From where we and EEOC sit, they not only had a school principal who let a co-worker torment women, but the agency’s national ER and counsel staffs jumped in to defend the blatant misogynistic behavior. But we will let you judge for yourself. Here is what the EEOC found to be the facts.

  1. While Complainant Nancey (a woman) attempted to lead meetings, Coworker 1 (a man) often reacted angrily and would frequently interrupt her or cut her off during her presentations to the group. Coworker 1 would sometimes request clarification on certain topics, but would not accept a response from Complainant, directing his questions to the male administrators instead even though Complainant knew the answers while the administrators did not. On occasion, Coworker 1 would reject Complainant’s response and seek a response from the administrators, who then provided the same response Complainant had just provided, whereupon Coworker 1 would thank them for providing “the correct information.” Both Complainant and her co-chair, Coworker 2, complained to the Principal and Assistant Principal on numerous occasions.
  2. On one occasion during a meeting that also involved staff from another school, Coworker 1 arrived late during a presentation by another female staff member and started badgering her about information that she had already gone over. Complainant began to answer his questions and Coworker 1 “got in [Complainant’s] face,” pointed at her, and shouted “you be quiet, I’m not talking to you. I asked her.”
  3. When the Complainant’s tried to give her presentation, Coworker 1 and another teacher (“Coworker 3”) (male) ignored her and continued to talk between themselves. Complainant waited for them to finish talking and when they stopped, Complainant resumed her presentation only for them to begin talking again. Complainant approached them and said, “thank you for listening” whereupon Coworker 3 said “you’re welcome” and both of them broke out laughing and mimicked her.
  4. At other times Coworker 1 would “shadow” the Complainant by sitting next to her in the cafeteria even though there were other places for him to sit, or by joining her group during staff development sessions and, according to Complainant, “using proximity to make me feel uncomfortable.”
  5. When the Nancey complained to her Principal, he did conduct an informal inquiry, but only interviewed Coworker 1 and 3, not Complainant or any of the female teachers who had complained.
  6. When the Principal finished his investigation, he implied that she was at fault for not being able to deal with difficult people like Coworker 1 and further say that she should not let people like him get to her.
  7. When many female colleagues complained of similar condescending or sexist behavior by Coworker 1 towards themselves or other female faculty and even female parents of students.

Now, here it is important to remember that by the time this case got to EEOC the employee (1) had met with an EEO Counsellor to file, investigate and discuss the charge, (2) had filed a formal complaint, (3) had a formal investigatory file developed providing testimony and other evidence of all this, (4) had a hearing before an Administrative Judge (AJ) who found all these facts and concluded the agency acted illegally, (5) had gone through final agency review of her case in light of the AJ’s decision .  Yet, DoDEA still refused to recognize that it was grossly wrong to continue to fight this case.  Incredibly, all it argued before the full EEOC was that “the actions complained of were insufficiently severe to constitute harassment.”  The Principal himself also testified that because neither Complainant nor any of the others complaining against Coworker 1 used the words “harassment” or “hostile work environment” in describing his behavior, he did not treat the behavior as such.

EEOC tossed the Agency’s absurd defense aside ruling that under law the legal test is whether the behavior is severe or pervasive – not that the behavior reached a certain degree of severe.  Moreover, it had no trouble finding that the Agency is liable for Co-worker 1’s behavior because there is no doubt it knew about the behavior yet did nothing to stop it.  It wrote,

“An employer like the Agency is liable for co-worker harassment when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.”

Because Nancey resigned from several extra-curriculum activities because of this harassment and lost the stipend that goes with each, EEOC ordered she be given back pay (including lost Thrift Savings Plan benefits, retirement contributions and the loss of bonuses, etc., if any) due to Complainant. It also ordered that the Agency shall cooperate with Complainant’s efforts to transfer her to a school in the United Kingdom, or a mutually agreeable location. In the absence of vacancies in Complainant’s job series or grade in the United Kingdom, the Agency must identify other vacant positions within the United Kingdom and in other schools for which Complainant is qualified (including positions outside of her current job series) that are comparable to the grade level of her current position, and permit her to select the position and facility into which she seeks to transfer. Complainant’s transfer should be made effective as soon as possible, but no later than six months from the date this decision becomes final. Finally, she got $45,000 in nonpecuniary compensatory damages and $50,950 in attorney fees plus $2,184.04 in costs.

Oddly, there was no mention of disciplining the Principal, which we hope means that he and Co-worker 1 no longer work for the federal government. We also would have liked to see an order that DoDEA retrain its ER, EEO, and counsel staff in the law of sexual harassment, if not also proper values.

For more details on this case, check out Nancey D., v. Lloyd J. Austin III, (DoDEA), EEOC No. 2022000526 (2022).


About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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