DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, HAS ONE OF HER CLIENTS FEATURED COWBOY STATE DAILY
Posted By fedpractice || 27-Jan-2021
- Former Wyoming National Guard Major Awarded $600k Settlement in Discrimination Case
After graduating as a second lieutenant from the University of Michigan’s Reserve Officers’ Training Corps (ROTC) program in the late 1990s, Bennett served in the U.S. Air Force before becoming a security forces officer at F.E. Warren Air Force Base in Cheyenne.
If there was a bias against women in the military, she didn’t personally experience it, she said Rather, she worked hard and ascended up the ranks where she was rewarded with a plethora of opportunities to grow her skills and career.
Bennett said she’d had an idealistic impression of service members in uniform as being universally good people. That all changed, however, when she arrived at the Air National Guard base in Wyoming, she said.
There, she would experience first-hand what she referred to as a “toxic and retaliatory environment for women,” that would ultimately result in her losing her job and being denied the right to appeal the decision in what evolved into a nearly decade-long legal fight.
The case stems back to an incident in 2012, when Bennett claimed she’d been unfairly retaliated against, and ultimately fired from her position in the human relations division, for submitting complaints on behalf of a handful of female service members who claimed they had been sexually harassed by certain male officers. Not only were the complaints not taken seriously, Bennett said, but she feels she was punished for attempting to address what she said was a hostile work environment rife with sexual harassment.
Less than a month after submitting the complaints to her superior, Bennett, then a new mother, was fired for what was ostensibly attributed to her post-partum depression. She was told that three of her female co-workers had submitted formal complaints about her “erratic behavior” and increasing difficulty working with her.
The firing came as a big surprise, for Bennett, who said she had just received a glowing performance review a few months prior. Instead, she feels she was being reprimanded for bringing the harassment claims forward and unfairly targeted.
“They terminated me because I had recently become a new mom,” she said. “I was specifically told I was not able to be a new mother and a commander.”
Bennett has doubts about the authenticity of those complaints or the accuracy of claims that her work had slipped, but ultimately, she was powerless to argue the decision. Instead, she asked to seek medical treatment or counseling, but was denied.
When she asked the human resources director for the form to fill out a federal equal employment opportunity (EEO) complaint petitioning her firing, she was told that as a military member, she was subject to the jurisdiction of the Military Equal Employment Opportunity division, which is overseen by an adjutant general. Only civilians are protected under federal EEO laws.
In Bennett’s case, she was both. She served as an officer in a civilian position, known as a Title 32, or dual status technician. Because she wore a uniform to work, the Guard reasoned, she fell under the jurisdiction of the National Guard, which wasn’t subject to federal EEO guidelines.
After being fired from her civilian job, Bennett remained an active-duty Guard member and attended monthly weekend trainings, where she said the retribution continued and she was more or less sidelined in a back office and not invited to participate in drills. Given the hostile environment, Bennett asked for but was denied a transfer to another base. Instead, she stuck it out until winter of 2017, when she retired after 20 years of service.
During this time, Bennett hired lawyers to fight the Wyoming National Guard’s decision to handle her case itself and her case ultimately cycled through three Equal Employment Opportunity Commission (EEOC) judges. The first two dropped the case without explanation, or so she thought, though it would turn out that the Guard was stonewalling.
The second judge to rule on her case, Daniel Preciado, had determined that Bennett’s claim did in fact fall under EEOC jurisdiction and had ordered the Wyoming National Guard to engage in the legal process of discovery, which it never did.
Finally, a third EEOC judge, Nancy Weeks, of Denver, Colorado, ruled in Bennett’s favor against the Wyoming Air National Guard, awarding a settlement of upwards of $600,000 in lost wages and legal fees.
According to Weeks, the Wyoming National Guard sent her a letter in 2015, stating its position that the case was closed and reiterating its stance that it was the only agency that could decide claims from dual-status technicians and had done so accordingly.
In 2013, an adjutant general had reviewed Bennett’s claim and determined that her firing had been justified, according to Wyoming Air National Guard Chief of Public Affairs Rusty Ridley. Her case was also reviewed by three independent adjutant generals from bases outside Wyoming, Ridley added.
“They all came to the same conclusion,” he said by phone Wednesday. “Her termination was based on those formal complaints and was valid.”
Bennett disagrees as does Weeks, who ruled in her written judgement last June, citing the passing of the National Defense Authorization Act (NDAA) by Congress in 2016, which granted the right for dual-status technicians to file federal EEO claims under Title VII, for conduct not related to their military activity.
Whether this law applies retroactively for claims filed prior to 2017 remains the sticking point for cases like Bennett’s, where jurisdiction is subject to opposing interpretations of the law.
Weeks argues that it does. In a scathing ruling in 2019, Weeks condemned the Guard for its repeated refusal to participate in the appeals process, accused the agency of gross misconduct in ignoring the ruling, ultimately ordering them to pay Bennett’s outstanding wages dating back to her firing in 2012 as well as her legal fees, which are in excess of $20,000.
“Sanctions should be granted in an amount to deter future behavior,” Weeks wrote in her decision, noting the number of times the Guard refused to comply with the EEOC’s orders and its “less than candid interaction.”
The National Guard has until Jan. 28 to pay Bennett’s settlement, though she will likely have to wait until the battle goes to the federal courts for clarification as the Guard remains steadfast in its position, Ridley said.
Currently, Bennett’s case is the only one still pending in Wyoming, to the best of Ridley’s recollection.
He referred details about any subsequent legal actions to Wyoming National Guard’s lawyer, Chris Smith, who did not immediately respond prior to publication.
Changing the culture
For Bennett, the situation goes beyond financial restitution and is a result of a deep-rooted “boys’ club” culture rampant with sexual harassment in the Wyoming National Guard that seeks to bury any claims of wrongdoing by punishing those who complain.
She can point to a half-dozen women she personally knows who have been driven into silence through harsh reprimands, including demotions in rank, firings and overt hostility from peers and those in command.
The message is clear, Bennett said: Shut up or risk ruining your reputation and career.
Bennett pointed to the 2020 firing of the Equal Opportunity Office director assigned to Hill Air Force Base in Utah to root out such sexual harassment. According an article in the Military Times, the removal was the result of three whistleblowers sounding the alarm over the EEO director’s mishandling of their complaints.
A subsequent investigation by the Air Force Material Command’s Inspector General validated the whistleblowers’ allegations, the article said, showing that employees were discouraged from submitting sexual harassment claims by their superiors because they wouldn’t be taken seriously.
The EEO director was also accused of illegally modifying and rejecting complaints and allegations as well as providing misleading information about the process itself, among other charges.
In the end, Hill Air Force Base promised to improve its EEO training and issued new policies in response.
This incident is just one of many, Bennett said, citing yet another case reported by the media in 2020 documenting the experience of Marianne Bustin, a sexual assault response coordinator at the Air National Guard’s Horsham base in Pennsylvania, who claimed she was fired for attempting to do the job for which she was hired.
In a Jan. 17, 2020, article in the Philadelphia Enquirer, Bustin described a vindictive “old boys club” in which sexual harassment and the demeaning treatment of women prevailed, and those who complained were harshly reprimanded.
Bennett’s case has left a permanent stain on an institution she once revered, she said, noting that she’s even trying to talk her sons out of serving in the military.
That said, she’s hoping that her case sends a clear message and paves the way for others to seek justice. A lot of people aren’t as tenacious as she is, she said, and it’s way too easy to get lost in the cracks and just give up.
In the end, it’s not about the money, Bennett said, but rather paving the way for others to be treated fairly and have their cases heard.
“I feel validated because I wasn’t permitted to use the process,” she said, “which sends the wrong message. Employees shouldn’t shiver in fear at the thought of retaliation. It just motivates people to keep their mouths shut.”
Ridley noted that yes, there have been claims of sexual harassment at the Wyoming Air National Guard base, but he couldn’t immediately provide a number only to say that there had not been many. The Guard takes these claims very seriously, he said, and those accused of such misconduct are reprimanded and subject to the fullest extent of punishment.
They have also implemented sexual harassment and discrimination training programs and now employ a sexual response coordinator on base to handle any such claims, Ridley said. He contends that Bennett’s claim had been fairly and independently investigated and had nothing to do with her pregnancy or gender.