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Agent: I was demoted for reporting harassment

A special agent at the Bureau of Alcohol, Tobacco, Firearms and Explosives claims she was demoted as retaliation for reporting on a culture of sexual harassment. CNN's Jessica Schneider reports.

Posted: Jan 24, 2018 1:01 AM
Updated: Jan 24, 2018 1:01 AM

Special Agent Lisa Kincaid is marking 30 years with the Bureau of Alcohol, Tobacco, Firearms and Explosives. She proudly served on assignments that took her around the country to run a field office in Florida, an arson task force in the nation's capital, and the ATF's investigative support branch. Looking back over her three decades, Kincaid says there were always signs of sexual harassment within the different divisions she worked at the bureau.

"I used to think, it's just the way it is, and you have to go along to get along," Kincaid said. "Choose your battles."

But when she was tasked with investigating another female agent's harassment claims against a supervisor, Kincaid uncovered disturbing allegations. Kincaid spoke to other women who said they were harassed, and even assaulted.

"The agency," Kincaid said, "it's just a cross-section of society. Whether it's happening in Hollywood or Wall Street or Congress, it's all the same."

Kincaid said that when she reported the harassment claims and urged management to take action, she was retaliated against in a way that harmed her career advancement. Now, she's suing the Department of Justice, which oversees ATF, as well as ATF itself. Kincaid said it's not just about getting retribution for the positions she believes she was passed over for, but it's also her goal to ignite the #MeToo conversation inside the fortified walls of law enforcement.

In a statement, the ATF would not comment on personnel matters, but said "We take sexual harassment complaints very seriously and they are thoroughly investigated."

Inadvertent exposure

One woman told Kincaid that an ATF supervisor shoved his hand up her skirt while they were on official business in Chicago, Illinois. Kincaid said the woman told her that the supervisor "put his hand up her skirt and squeezed her thigh. This was after he had made several passes at her and she had rebuffed those passes." A few others told Kincaid how that same supervisor would discuss oral sex in front of female ATF employees. The supervisor also allegedly berated and bullied female subordinates, and accusers said he lowered the performance appraisals of women who spoke out against him.

But these women never came forward with formal complaints. They told Kincaid about their uncomfortable experiences when she tracked them down in the course of a separate investigation. As a criminal investigator in the ATF Internal Affairs Division, Kincaid was responsible for conducting sensitive investigations of ATF employees. The initial investigation was spurred by a female special agent's complaint that the supervisor referred to above had discriminated against her, harassed her and subjected her to a hostile work environment.

There was initial reluctance to talk among the women Kincaid found. One woman told her, "'Lisa, I'm retiring at the end of the month and I don't really want to be involved. I've had it.'" But Kincaid felt it was her duty to conduct a thorough investigation. "These allegations had been reported to me, and I compelled people to do interviews," Kincaid explained.

"I made them expose what happened to them," she added, noting that, by the fourth woman Kincaid interviewed, "we knew there existed a pattern of abusive behavior in that office."

Retaliation?

Kincaid turned in a 272-page initial report in August 2014 outlining the allegations of misconduct against that senior manager and his boss, who Kincaid alleges helped cover up the senior manager's actions. Kincaid's findings are broadly outlined in her federal lawsuit, but most of the specific allegations are redacted, out of the concern that Kincaid could be accused of violating privacy laws if she revealed them, according to her attorney, Bob Seldon.

Kincaid continued to document additional misconduct by the two supervisors even after she turned in her preliminary report.

"I felt a responsibility that the case should be seen to fruition," Kincaid said. Kincaid said upper management prevented the allegations of sexual harassment and assault brought forward by the five other women from being referred to ATF's Professional Review Board, which would have determined what disciplinary action, if any, would result, including removal.

"I think senior leadership tried to protect them from the very beginning of the investigation," Kincaid said. "The truth isn't what they're always looking to find."

The initial complaint from the special agent who claimed harassment and discrimination did move forward, however. But Kincaid wasn't satisfied with the outcome. In September 2015, the Complaints Adjudication Division of the Department of Justice issued a final agency decision and found in the special agent's favor. But, in Kincaid's view, the punishment didn't fit the crime. She said the ATF had to pay the special agent from program funds, and the supervisors had to participate in Equal Employment Opportunity training.

"They weren't fired," Kincaid said. "And it took them a long time to follow through and settle the case."

In the meantime, Kincaid alleges ATF management interfered, dismissed the seriousness of her findings relating to the other women, and eventually demoted her. In the year after Kincaid submitted her Preliminary Report, she says she was passed over for a promotion.

The government's motion to dismiss defends the ATF's handling of Kincaid's investigation. The government said Kincaid was passed over for jobs and promotions because another candidate was preferred, and that she was reassigned to a lateral position after she admitted divulging information from the investigation to her husband, a retired ATF agent.

Justice Department's 'systemic issues'

Kincaid's complaints about the way sexual harassment allegations were handled resonate in a recent report from Justice Department Inspector General, Michael Horowitz, who sent a letter to Deputy Attorney General Rod Rosenstein in late May 2017 alerting him to "systemic issues" in how the DOJ handles sexual harassment and misconduct allegations. Specifically, Horowitz said there is inconsistent reporting of allegations across the DOJ, inconsistent penalties, and inconsistent enforcement of the DOJ's zero-tolerance policy.

In that memo, Horowitz warned that "without strong action from the department to ensure that DOJ employees meet the highest standards of conduct and accountability, the systemic issues we identified in our work may continue."

Department of Justice spokesman Ian Prior noted that the scope of that investigation ranged from 2011 through the first two quarters of 2016, before President Donald Trump named Attorney General Jeff Sessions to lead the Justice Department. "That said," Prior said, "the Department was very disappointed with the issues that occurred in the Obama administration and strives for a workplace free of harassment and other misconduct."

In addition, Prior said that Rosenstein has convened a working group review the issues raised by the report and that a response will come soon.

Personnel say major problems persist

One Justice Department employee familiar with the way harassment complaints are handled told CNN, "Eight months now after the OIG report came out, and we've heard nothing from the department. They haven't made changes. There's allegedly a working group, but how long does it take to get results from a working group?"

Several employees described a culture where complaints are often swept under the rug, and even if someone is facing harassment, they often don't know where to turn to voice their concerns. The Justice Department mandates any complaint must be reported to an Equal Employment Opportunity counselor within 45 days.

"When you experience sexual harassment or sexual assault, those are traumatizing events, and getting your act together in 45 days is often difficult," the department employee told CNN.

From there the counselor may offer a resolution or provide the accuser with a written notice of their right to file a discrimination complaint. But the complaint won't be completely anonymous. According that department employee, "It will get back to your supervisor. EEO operates on your behalf and negotiates with your office or component to arrive at an agreement. And that's a difficult thing to do."

Some DOJ employees are now banding together. Members of the DOJ Gender Equality Network sent a letter, reviewed by CNN, to Rosenstein in August asking to work with his office to come up with an action plan. Several of the 300+ member group said they have experienced or witnessed sexual harassment within the Justice Department.

Kincaid's attorney says law enforcement has turned a blind eye for too long to abuse within its own ranks. "People who work [at the DOJ], an organization devoted to protecting people's civil rights, they should never do things like this," her attorney Seldon said. "And people who do should not be allowed to stay there, and they should not be covered up for, and it should change."

"I know there are a lot of women who are affected by this," Seldon said. "I know it's one of Lisa's real hopes that by standing up or getting her lawsuit known, that they'll come forward too. It won't be just Lisa talking about a pattern. The pattern will be right there."

"I want to make a difference," Kincaid said. "I want to know that taking a stand wasn't for nothing."

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