Complaint Doesn’t Fly, Thanks to a Swift and Effective Reply

By Dan Gephart, October 15, 2024

Quick facts:

• An air traffic control specialist and an agency operations supervisor entered a consensual sexual relationship.
• The specialist alleged sexual harassment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity.
• An EEOC AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant.

When faced with an allegation of sexual misconduct, there are two words you must remember as you contemplate action — swift and effective. While reacting wildly is not condoned, hesitation is imprudent and ill-advised. It could open up liability to the agency, and, even worse, leave an employee in a dangerous situation.

The recent EEOC decision Annice F. v. Buttigieg, EEOC App. No. 2022004327 (Aug. 22, 2024), underscores the importance of the aforementioned advice.

An air traffic control specialist filed a formal EEO complaint alleging the agency subjected her to sexual harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity. It started when an agency operations supervisor (AOS) was assigned to work alongside the complainant’s team. The AOS was not the complainant’s supervisor. However, due to the nature of his training and staff shortages, AOS sometimes provided operational instructions to the complainant and others on her team.

Soon after the AOS started working with the complainant, they began a consensual sexual relationship. However, that relationship ended abruptly when the complainant learned the AOS lived with his girlfriend and had multiple other sexual partners.

Later that year, the complainant told two supervisors of her intention to file a discrimination claim. She provided details of the relationship, explained the difficulty of working alongside the AOS, and shared concerns for her safety.

Now, imagine you’re one of these two supervisors, what would you do?

The supervisors told the complainant to contact local law enforcement, and advised her the agency would conduct an immediate investigation. That very same day, one of the supervisors reported the complainant’s allegations and prior relationship with the AOS to the agency’s Accountability Board in order to initiate a prompt investigation about sexual misconduct, potential gun violence, and involvement by local law enforcement for the safety of all parties.

Meanwhile, that same supervisor instructed management officials to immediately limit interactions and work projects between the AOS and the complainant. Soon after, the AOS was moved to a different team.

The supervisor also investigated the complainant’s claim that the AOS had guns in his vehicle on Federal property. No guns were found in the AOS’ vehicle, and the complainant admitted she never saw guns in his vehicle at work, just that he owned guns and stated he kept them in his vehicle.

Several days later, the complaint contacted a crisis hotline. She told her supervisors, who then sought guidance from the agency’s medical division. Citing the high pressure and national security implications of the air traffic control specialist position, the agency’s flight surgeon temporarily terminated the complainant’s medical clearance. A medical diagnosis is not needed to terminate clearance, only a concern that the employee’s physical or mental state could impact the performance of their job. Shortly after the complainant’s clearance was reinstated, she filed the claim.

The complainant alleged:

1. She was harassed and subjected to a hostile workplace environment, resulting in disparate treatment.
2. She was seduced, lied to, and coerced into having sex with a manager, under the belief that she was going to have a romantic relationship with him. Instead, however, the AOS used his position to convince her to have sex in order to benefit his own work environment, including assaulting and raping her on several occasions.
3. She saw guns in the AOS’ car at work; however, nothing was done, and the guns were not removed.
4. She went to the police and was told that she was not in any imminent danger; thus, she was unable to file a restraining order; and the AOS had since been moved to another facility.
5. The agency removed her medical clearance as a result of her filing this EEO claim.

The EEOC AJ issued a bench decision that found the evidence established the agency took appropriate, prompt, corrective action in response to the complainant’s reports of sexual misconduct by the AOS and a potential gun violation on Federal property. Regarding the allegations of rape, the complainant was directed to local law enforcement.

The evidence also reinforced that the AOS was not a supervisor who was empowered to hire, fire, reassign, or take any other employment action against the employee, or make any decision that would affect her benefits or terms and conditions of her employment.

The AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant. The complainant appealed, and the EEOC concurred with the AJ.

But it was not only the swiftness of the supervisors’ actions, but also the effectiveness, that EEOC found appropriate. This is particularly critical when the allegations include firearms on workplace grounds and sexual assault. [email protected]

Related training:

• When Domestic Violence Impacts the Workplace: Ensuring a Safe and Supportive Environment, October 23
• Responding Swiftly and Effectively to Inappropriate Sexual Conduct, November 6