A female defense agency employee said in court this month that she was isolated and harassed at the office after asking to work from home one day a week because she could not arrange child care.
Her bosses at the Defense Security Service say she is simply unhappy she was not given special accommodation.
A jury in federal court in Alexandria is expected to decide in the next week which side they believe. Patricia Burke’s suit against the Defense Department is the rare employment discrimination case against the federal government to go to trial.
“Prior to this, I got along with everybody,” Burke testified this month. After her complaint, she said, “people weren’t speaking to me.”
An internal review from the agency’s Equal Employment Opportunity office already found that Burke was subjected to a hostile work environment, although the original decision to deny her a more flexible schedule was not discriminatory, it found.
Dissatisfied with the response of the agency, Burke sued in federal court for compensation for emotional distress.
“The agency should have protected her right to seek the assistance of the EEO office, and the rights of the other women who have come forward regarding a widespread pattern of gender discrimination, harassment, and retaliation in the CounterIntelligence Directorate at DSS,” her attorney, Jacob Small, said in a statement.
The Defense Security Service, part of the Defense Department, oversees the protection of classified information by government contractors. Burke, a field support analyst in the counterintelligence division, had been off on Wednesdays before the birth of her first child in 2013. When she returned, her supervisor allowed her to work from home on Wednesdays to take care of her son.
Then she got a new supervisor. She was told she could not work from home as a substitute for child care, although she believed male employees had been allowed to do so in the past. She was also barred from going back to a schedule where she did not work Wednesday, because of sequestration-related furloughs.
“I had a newborn child at home, and I wasn’t sure what I was going to do,” she testified. “I didn’t feel like the child meant anything to them.”
Burke filed a complaint with the agency’s EEO office later that year. After that, she and other employees testified, she was ostracized.
It was “a severe and a pervasive hostile work environment” that left her so anxious and depressed that her marriage may not recover, Small told jurors as the trial began.
Nelson Bishop, Burke’s former supervisor, testified that he heard counterintelligence director William Stephens say while discussing the complaint that in the Air Force, they dealt with troublemakers by isolating them and taking away their job functions and their feelings of self-importance.
“ ‘It really bothers them,’ ” Bishop recalled Stephens saying.
On the stand, Stephens denied ever making such comments.
He testified that “it’s almost laughable” to suggest he ever made a plan to punish employees for filing complaints.
But Burke alleges that such treatment is exactly what she experienced.
She said she was made to email her supervisor and tell him when she was signing in and out each day, as well as when she was pumping breast milk. She was given duplicative busy work and administrative tasks below her rank, she testified. Her desk was moved. Her performance evaluations suffered.
“They would . . . not talk to her,” Bishop, her former supervisor, concurred. “They would find small things to pick on with her, details of her work” and were “giving her work to do that’s already being done.”
Jennifer Gabeler, a former DSS assistant director for intelligence, also filed a gender discrimination complaint against Stephens. She, too, said her boss cut off all direct communication with her after her complaint and also made her work more difficult.
“I was labeled as confrontational, aggressive, difficult when male peers weren’t for the same behavior,” Gabeler testified.
She left in July for another post in the DSS.
“I couldn’t do it anymore,” she said. “I could no longer function in that environment. I was continually being undermined by my peers and by my leadership.”
The counterintelligence division is heavily male, she said, particularly in management.
Michelle Labov, who handled Burke’s internal complaint, said management pushed back against her investigation. After her meeting with Stephens, she said, he accused her of “manhandling” him and threatened her job.
“I thought it was reprehensible how the front office behaved,” she testified. “They were breaking rules left and right. It was like the wild, wild West.”
Her boss at the time, Carolyn Lyle, concurred, saying she had trouble getting the documentation she needed from Burke’s superiors and subsequently got a negative performance review she attributed to pushback over the case.
Stephens denied ever intentionally ignoring employees or retaliating against Burke or Gabeler in any way.
He testified that Gabeler was repeatedly “insubordinate” and that Burke had demanded accommodations no other employee was granted.
No one was being allowed flexible work schedules, he and other managers testified, because of the sequestration furloughs. And no one was allowed to work from home as a substitute for child care. Burke had been doing so without official filing, he said, which might be considered fraud.
Small questioned why, if furloughs were required, Burke could not have taken hers on Wednesdays.
Carl Taylor, Burke’s manager at the time, said he gave her work that needed to be done and never intentionally excluded her from a meeting. “We all did administrative tasks,” he said. “We were short on administrative assistants.”
Her desk was moved, he said, because she had complained of being far from other team members.
Taylor said that there were issues with how long Burke was spending in the office’s milk-pumping room and that official policy was for such time to come out of an employee’s leave. But he did not recall asking her to take leave or tell him when she used the room.
Frank Malafarina, another member of leadership who Burke said ostracized her, said he believed she “was trying to collect as much pay as she could while doing as little work as she could.”
He denied ever calling her “princess,” as she alleged.
The case, Assistant U.S. Attorney Kimere Kimball said in her opening statement, was really about “Patricia Burke not always getting her way.”
While Burke’s workplace might not always be “warm and fuzzy,” Kimball said, “management did everything they could to accommodate her near-constant demands.”