What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

• Continuously talking about his sex life.
• Making sexually suggestive comments in the workplace.
• When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
• Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
• Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
• When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
• Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
• Threatening to hit the Complainant with a cardboard roll.
• Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
• Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
• Hitting her with a yardstick.
• During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
• Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
• Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019).

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. Hopkins@FELTG.com