Feds file discrimination complaint against Forest Service

Monday - 12/3/2012, 5:00am EST

Elaine Vercruysse, Forest Service employee filing discrimination class complaint

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Joe Leonard, USDA assistant secretary for civil rights

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Alicia Dabney, former Forest Service employee, on harassment she experienced at work

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Debra Roth, federal employment attorney, on the process of filing a class complaint

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The U.S. Department of Agriculture is tackling a history of discrimination with more training and accountability as part of a cultural transformation program. But some current and former USDA employees say they're not seeing cultural changes, and sex discrimination is still prominent within the agency.

Specifically, female employees in Region 5 of the Forest Service are objecting to the disparity between how men and women are hired and promoted. The employees also point to hostile workplace conditions where, in some cases, they say they experienced egregious sexual harassment.

"We want to see more women get the opportunities they deserve, getting promotions ... getting jobs and getting paid for their skills and their experience level commensurate to the men," said Elaine Vercruysse, a logging systems planner with the Plumas National Forest, in an exclusive interview with Federal News Radio.

Vercruysse filed a complaint with the Equal Employment Opportunity Commission on behalf of all women in Region 5, which is in California. In all, Region 5 has about 5,000 employees, of which 1,500 (or about 30 percent) are women, Vercruysse said.

In contrast, the federal workforce is 44 percent female.

"[This discrepancy] I'm sure will give everybody a sense of pause because that number's meaningful," said Debra Roth, partner at Shaw Bransford & Roth, and host of the FEDtalk show on Federal News Radio.

What's more, Vercruysse said, women are not given promotions, even while less qualified men are promoted over them.

Vercruysse has worked for the Forest Service for 25 years. She said her last promotion was 22 years ago and she's actively sought a promotion for the last nine years "with no success."

"I see men coming in with their first appointment, and within three years, they're getting into leadership or key positions in the organization. I've been watching it over and over and over again," she said.


We want to see more women get the opportunities they deserve, getting promotions ... getting jobs and getting paid for their skills and their experience level commensurate to the men.
— Elaine Vercruysse,
Forest Service employee

In an emailed response, USDA stated, "We are aware of the employees' concerns and take them very seriously, as we do all allegations of misconduct. The allegations have already been or are being fully and fairly investigated. It is the policy of the USDA and the Forest Service to provide a workplace that is free of harassment."

The EEOC must first certify Vercruysse's complaint as a class complaint, a process that could take a few years, she said.

To get certified as a class, a plaintiff must show four factors, Roth said. First, the plaintiff must show enough people are involved where it would be impractical for the EEOC to process them individually — although there is "no magic number," Roth said.

"Usually, 10 or 12 isn't enough. But when you read [Vercruysse's] informal complaint, you get the sense that there's a whole lot more than that," Roth said.

The plaintiff must also show the facts of the plaintiffs' claims are common to each other, as well as a pattern that the claim of discrimination is typical for all class members. Lastly, the plaintiff, also known as the class agent, also must show he or she will fairly and adequately protect the interests of the class.

The Vercruysse claim is now at the discovery phase.

Vercruysse said the objective of filing the complaint is not monetary but cultural — to change the policies and procedures in Region 5. She said USDA offered her money to settle her complaint but she did not take it. She said she could not disclose to Federal News Radio the amount she was offered because she had signed a non-disclosure agreement with the agency. Vercruysse said she would have dropped the complaint completely had USDA been willing to sit down and discuss how to address her concerns. She said the agency's unwillingness to do so led to the filing of the class action suit.

Cultural transformation


(Photo/USDA.gov)

We're adroitly addressing civil rights training throughout [the agency].
— Joe Leonard,
USDA Assistant Secretary for Civil Rights

USDA's cultural transformation includes more training for employees to become "sensitive to people of all races, in all regions of the country," more accountability when discrimination claims are made and a harder look at metrics, said Agriculture Secretary Tom Vilsack in an October interview with Federal News Radio, unrelated to this case.

Vilsack spoke mainly about fighting discrimination against farmers, but said the changes encompass inclusivity in USDA's own workforce.

One sign of that change has been findings of discrimination in some agencies within USDA where there had never been findings before, said Joe Leonard, USDA assistant secretary for civil rights.

"It's not so much we're having these findings to have them. We're adroitly addressing civil rights training throughout [the agency]. I've gone to Region 5 four or five times. We've had findings in the Forest Service. We've had findings in Region 5," Leonard said.

Leonard referred any specific questions about discrimination in the workforce to the Office of Human Resources Management. Federal News Radio emailed those questions to USDA, including how USDA ensures women are being promoted on an equal basis with men. The USDA did not address Federal News Radio's specific questions but acknowledged that cases of discrimination had been and were being investigated.

Leonard pointed out that USDA had the lowest number of EEO complaints in the past few years since the agency has been keeping track of these complaints. EEO complaints hit a low of 478 complaints in fiscal 2010 and in the last two years saw more than 500 complaints per year, according to EEOC data posted on USDA's website.

Both the Government Accountability Office and the USDA's Office of the Inspector General have noted USDA's improvements in handling civil rights abuses. The Office of the Assistant Secretary for Civil Rights — Leonard's office — had "significantly improved its monitoring of settlement agreements and closure of program complaints," according to the August 2012 IG report. But the report added that the office needed to continue to "emphasize that formalized processes and controls are necessary," the report said.

Transformation working?

But the USDA leadership's stated commitment to fight discrimination has met skepticism from some USDA women who said they have experienced discrimination and harassment at work but have yet to see any change in the workplace culture.

"See, what they do is, once we come forward and make a complaint, instead of addressing the complaint, they decide to make a cultural transformation. There's no cultural transformation whatsoever. It's smoke and mirrors," said Jonel Wagoner, a fire training officer with the Sequoia National Forest in an interview with Federal News Radio.

Wagoner, who has been with the Forest Service for 33 years, said she has moved six times and taken four demotions in her career. Wagoner filed an EEO complaint on Sept. 21, claiming she suffered from negative comments by her forest supervisor about her character and work, was forced out of her union steward position and was denied fire assignment opportunities — all in retaliation for speaking up against civil rights abuses and for participating in the Vercruysse class complaint.

Alicia Dabney said this kind of retaliation has a chilling effect on other women speaking up. Dabney said she lost her job as a firefighter for speaking up against sexual and racial jokes made about her — including a lewd voicemail left by a coworker and papers scattered around the workplace with "Alicia Dabney is a whore" printed on them — and even an attempted rape by her supervisor.

In 2011, while on an assignment, Dabney said her supervisor put her in a chokehold.

"I had to talk him down ... from whatever he had planned in his mind. The way I felt, I felt like he was going to try to rape me, but I don't know what he was thinking besides telling me, I want to cuddle with you, I want to do this," Dabney said. "I was like, No, you're my boss. Please let me go."

Dabney said she immediately went to a higher supervisor, who said he would handle it. Nothing happened, Dabney said.

To this day, the supervisor who put Dabney in a chokehold is still working for the Forest Service. But Dabney is not. The agency claimed she lied on her job application. Dabney has a felony for welfare fraud, which she reported on her application. But the Forest Service said Dabney did not report a vandalism misdemeanor. Dabney claimed she did include the documentation on the misdemeanor and the agency's argument is that she did not write on the front of her application she had a misdemeanor.


(Photo courtesy of Dabney)

I worked super hard through all of the harassment and discrimination and everything that they threw at me.
— Alicia Dabney,
former Forest Service employee

"How can Homeland Security clear me and ... then all of a sudden I'm going to lie on my background? You're going to wait three years and then fire me?" Dabney said.

Dabney has filed a complaint with the Merit Systems Protection Board.

Despite all that's happened to her, Dabney said she still wants her job back as a firefighter.

"I worked super hard through all of the harassment and discrimination and everything that they threw at me," she said.

Dabney added, "Whatever comes along with that job, maybe it's the way that it has to be. ... Maybe I had to go through all of that, so they can't ever do it again to more people."

Elise Lopez's story parallels Dabney's in that she was the only female firefighter when she worked for the El Dorado National Forest. She said she also faced discrimination from coworkers and supervisors.

Lopez said her supervisor "was making comments toward me about how women shouldn't be firefighters with the Forest Service."

The harassment turned physical one day when the fire crew was practicing how to build barriers for a fire. Lopez's supervisor walked up behind her and pushed her to the ground. He then held her on the ground with his foot, she said.

"I was there for a couple of seconds, tried to get up," Lopez said. "One of the other firefighters stood up and said something."

Lopez, who had served in the Navy, said she never had this problem when she was in the service.

Lopez is now in a different forest, a "much better place," she said. But she said the fight against discrimination is "ongoing."

"Even though Secretary Vilsack is saying there's a ... cultural transformation, there's not enough being done," Lopez said. "They're not holding these supervisors and fire managers accountable for what they're letting happen in their forests."

Troubled history

If Vercruysse's complaint is certified as a class complaint, it will be the third class complaint filed against Region 5 in the last three decades.

Lesa Donnelly (right), former Forest Service employee and class agent of a discrimination complaint against the Forest Service, testifies before the Committee on Government Reform in 2008. Donnelly is the vice president of the USDA Coalition of Minority Employees. She sits next to coalition president Lawrence Lucas. (Photo courtesy of Lesa Donnelly)

The Bernardi consent decree of 1981 required the Forest Service to hire the same proportion of women into the workforce as existed in the civilian workforce. Under the decree, women had to make up 43 percent of the Forest Service workforce over the five years. The agency also had to increase the number of women at the GS-11 through GS-13 pay grades. The EEO class complaint was filed nearly a decade earlier by Gene Bernardi, a research sociologist.

Although seemingly a win for women at the Forest Service, the consent decree had an unintended consequence — breeding resentment among some male employees.

"The majority of women were highly qualified and able to do their jobs. They were sabotaged because the men didn't want them there. Men had been promised those positions for years," said Lesa Donnelly, who participated in the Bernardi class complaint. "I hate to use the words 'good ol' boy system,' but that's what it was."

In 1994, Donnelly filed a class complaint based on the backlash women hired under Bernardi had suffered. The terms of the settlement ran from 2000 to 2006 and pertained to setting up processes for investigations, employee trainings and accountability for retaliation against women, as well as a mentoring program for women and an annual women's conference.

After 2006, however, conditions for women back-slided, Donnelly said. By the time Vilsack took office in 2009, "things were at the level they were during Bernardi with women not getting hired and ... the level they were in 1994 as far as harassment, discrimination and workplace assaults and violence and sexual harassment," Donnelly said.

Donnelly is now the vice president of the USDA Coalition of Minority Employees and she represents several women, including Vercruysse, who have filed EEOC complaints against the Forest Service.

If the EEOC does not certify Vercruysse's complaint as a class complaint, Donnelly said they will have exhausted the administrative process and will then file a case in federal court. The hope, though, is not to go to court but to "sit down and come to an agreement."

In federal discrimination claims, the plaintiff must first exhaust the informal internal process and then the EEOC process before going to federal court. If the EEOC does not certify Vercruysse's claim as a class complaint, the women will then take the case to federal court, Donnelly said.

Donnelly faults the Forest Service for not negotiating with the women and thereby wasting "hundreds and hundreds and hundreds of thousands of dollars by digging their heels and going through this [EEOC] process."

"We would like to sit down with them and work together," Donnelly said. "We're not going to say we have all the answers, but we would like to work together and collaborate on some of these processes and procedures we can change or we can put into place to make it a level playing field."

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