Last September, LA County Deputy District Attorney Karen Nishita received a $300,000 settlement from the County of Los Angeles after testifying that she had been enduring sexual harassment by her supervisor, prosecutor Edward Miller, for more than 2 ½ years. Miller received a demotion. But so did Deputy DA Tracey Stevens, the person who blew the whistle on Miller.
When the harassment finally came to the attention of higher-ups in the DA’s office, it was not because Nishita reported it. Instead, her colleague and friend Stevens took the initiative after Nishita confided that she was afraid to report the situation herself, out of fear of retaliation.
Although sources inside the office confirm that multiple attorneys in the DA’s Healthcare Fraud unit and elsewhere in the office had witnessed Miller’s obsessive behavior around Nishita, Stevens was the one to make a report. Now, according to a civil lawsuit she has filed, Stevens has experienced precisely the kind of retaliation Nishita was attempting to avoid.
In a memorandum, Stevens described a friendly workday lunch with Nishita that turned somber when Nishita couldn’t bring herself to even speak Miller’s name, raising Stevens’ suspicion that something was seriously amiss. After some coaxing from her companion, Nishita confided to Stevens.
“Ed has said and done things that have been inappropriate while I have stayed late working overtime in my office,” she said. After Nishita went into detail, according to the memo, Stevens was disturbed by what she heard. “That is not right…” Stevens said. “That is unacceptable.”
Stevens is a 53-year-old African American woman whose career appeared to be moving at a normal clip since she was hired as a prosecutor in 2005. She had been promoted twice by 2011. In 2016, she was assigned to the Healthcare Fraud Unit, and would soon be up for another promotion. But once Stevens formally reported that her friend and colleague had been enduring years of sexual comments, unwanted touching, and unwanted romantic advances from their boss, Stevens’ professional progress suffered a sharp downward turn, her lawsuit says.
After Stevens reported Nishita’s harassment in September 2017, then filed formal complaints of prosecutorial misconduct in connection with a separate matter in April 2018, Stevens’ lawsuit describes how she was demoted from her position in the specialized unit in downtown Los Angeles to the position of filing deputy at the Airport Courthouse, and found herself assigned a heavier caseload than that of her counterparts, and experiencing intimidation from superiors.
The lawsuit also describes how, after she reported Edward Miller’s conduct, she was subject to unsettling personal interactions, such as when Miller approached Stevens “in a threatening manner,” then a DA investigator told Stevens to “watch her back” – which she took as an unfriendly warning.
Stevens is far from the only prosecutor to describe an office culture of retaliation against anyone who reports misconduct or sexual harassment.
“Absolutely anything you do, if management doesn’t like it, you’re retaliated against… and if you file a grievance, the complaints are basically dismissed,” said a 25-plus year veteran of the L.A. County District Attorney’s Office who, citing retaliation fears, asked not to be named.
Another deputy who described witnessing harassment, yet declined to officially report it, explained things this way: “I saw what Beth and Tannaz went through, and no one wants to be blackballed.”
The $700,000 sexual harassment case
“Beth and Tannaz” are Beth Silverman and Tannaz Mokayef, two deputy DAs who filed a high-profile 2015 sexual harassment lawsuit against their boss in the elite Major Crimes Division, Gary Hearnsberger, in which they accused him of frequent sexually explicit comments, described at R-rated length in the lawsuit. The suit also describes Hearnsberger reaching under Mokayef’s skirt to grab her crotch, and on a separate occasion groping Silverman’s buttocks, saying, as she recoiled, “You know you like it.”
The Silverman and Mokayef suit settled in September 2017, with no admission of wrongdoing by Hearnsberger, and no meaningful change in the office’s culture, according to the picture painted by fifteen male and female deputy district attorneys interviewed for this story. All spoke on condition of anonymity, because, as one summarized, “retaliation is a given.”
If anything, the outcome of the Hearnsberger lawsuit made for a more harrowing environment for harassment victims, prosecutors interviewed for this story said. Shortly after the settlement, Hearnsberger retired, his full benefits package intact. Yet, even after her successful prosecution of the high-profile “Grim Sleeper” serial killer case, Silverman had doors closed in her face in the office — in one case, literally — sources said, and both women became pariahs.
Mokayef, one source said, also received a dose of “freeway therapy” – an expression made infamous some years ago by the Los Angeles Sheriff’s Department as a way to describe a common form of retaliation in the form of far-flung assignments that, in the case of the DA’s office, force a prosecutor to spend hours driving to courthouses on opposite ends of sprawling Los Angeles County.
Retaliation may take the form of transfers, demotions, or intensification of the harassment itself. The fear is so pervasive that some prosecutors would speak with me only through the private texting app Signal, many only through private home telephone numbers. One prosecutor insisted on a Sunday morning meeting, arranged through an anonymous third party, at an out-of-the-way shopping center, where she felt confident we would not be overheard.
Another only felt safe talking in my home, where she sat on the couch with balled fists and described feeling powerless to report wrongdoing.
Five female deputy district attorneys described the specific pain of being a prosecutor in a sexual harassment situation, in particular, because theirs is a profession that takes pride in its defense of victims.
“It’s pathetic if you think about it,” one said. “We speak up for victims, and we don’t speak up for ourselves. Once you say something, you might be denied a promotion, and you become that person nobody wants to be around.”
“No one wants to be ostracized,” said another prosecutor, explaining her decision not to report her own sexual harassment by a supervisor. “And when you have a supervisor who has the keys to a good recommendation or bad, that determines what your next assignment will be,” it’s particularly difficult, she said.
“I could never say ‘I need this to stop,’ or he would know you were not okay with it, and if he feared you were going to say something, there would be retaliation. So you had to be the gal who said, ‘Ha, ha, okay, now let me talk to you about this case.’ You had to make light of it and try to change the subject.”
One deputy DA who has had Grade II (out of a possible five) status for close to ten years, said she has been bypassed for promotions because she filed a sexual harassment complaint, which, after an internal investigation, was substantiated.
But the substantiated complaint didn’t vindicate her, she said. It only marked her as a complainer. That meant being subject to unfair treatment, such as being denied the same opportunity to take time off of work to study for the promotional exam that most of her colleagues were given.
Civil service job protections, coupled with an entrenched culture of retaliation against whistleblowers, make it unlikely that even a substantiated complaint of sexual harassment would result in termination of the harasser, prosecutors interviewed for this story said. Alternatively, they make it more likely that the complainant will suffer repercussions.
It’s not their money
Such protections make the process of firing an employee far more onerous than it is in the private sector. Yet, although employees are typically free of the worry of losing their jobs, they’re not free of worry about retaliatory transfers, being permanently overlooked for promotions, or simply being ostracized for having reported harassment.
Compared to the private sector, public entities as a whole have been far slower to halt sexual harassment, said employment attorney Gregory W. Smith. In the private sector, “it was easier to get a handle on because they really cared about getting hit for money.”
But with taxpayer-funded public entities, he said, “they don’t care — it’s not their money.”
Smith represented Mokayef in her sexual harassment suit against Hearnsberger. The suit resulted in a $700,000 settlement — a sum Smith called comparatively modest, especially because it was split between Mokayef and Silverman. Hearnsberger, who was suspended for two years with Grade V pay while the legal action was ongoing, retired after its resolution. Mokayef and Silverman, by contrast, had to use vacation days to attend depositions that Hearnsberger was paid to attend. Hearnsberger’s attorney fees were also covered by the county, but his accusers’ were not.
Six deputy district attorneys interviewed for this story described Hearnsberger’s reputation for engaging in inappropriate conduct as “widely known,” and the complaint against him alleged a pervasive pattern of ongoing sexually explicit comments. Yet the county’s internal investigation “found no evidence of sexual harassment.”
In fact, after Mokayef and Silverman’s suit was filed, at the next department Christmas party, Hearnsberger was celebrated in a comedy skit depicting him as “The Ghost of Christmas Past,” one prosecutor said.
“The ‘past’ was when we could still have ‘fun’ and not be subjected to lawsuits,” she explained. “My supervisors were there, cheering and clapping.” The message was very clear, she said.
Silverman and Mokayef felt they had little choice but to file a lawsuit, said one deputy DA, who, like others interviewed, said she was afraid to be candid about the problem, “They tried to go through the regular channels, but nobody did anything.” She too was “afraid all the time,” she said. “And that makes me angry.“
Mokayef and Silverman declined to comment for this story.
Lacey says zero tolerance for retaliation
In an earlier interview on the topic, District Attorney Jackie Lacey told me that the perception that retaliation was widespread in her office was not accurate.
“When someone has reported that they are being sexually harassed, we take it seriously and we simply don’t demote, we don’t do anything to the person that reported it.”
Lacey also added that fear of reporting harassment is “a foregone conclusion in our country right now. That’s the reason that so many of these complaints lay dormant or unspoken about until now.”
Her goal, Lacey said, while she is head of the LA County DA’s office “is to create an environment where people feel safe and where they can report it.”
She said she hoped we would print that, “as the district attorney of the largest DA’s office in the nation, people won’t be retaliated against,” that she encourages those in the office she leads “to report any allegation of sexual harassment because it’s not something that I tolerate and [don’t] believe that it should occur in any kind of work environment.”
Lacey said that she herself had felt pressure in the past to ignore harassment. In the ’80s and ‘90s, she said, as a younger deputy district attorney, “there were sexual comments that were made to me by my men who I felt could influence my future one way or the other.
“I remember thinking, ‘well, I’ll ignore this and maybe it’ll go away because I don’t want to make waves.’ And for years up until now, I think a lot of people have chosen that path.”
But there’s “a new day” now, Lacey said, and it is her goal to make the office feel like a safer place than it was in the past.
Not a safe place
The accounts of veteran district attorneys, plus Silverman’s and Mokayef’s experiences, and the allegations in Stevens’ lawsuit imply that Lacey’s goal has not yet been met, and that the retaliatory culture is still alive and well in the Los Angeles DA’s office, even if Jackie Lacey would genuinely prefer otherwise.
“This isn’t a safe place to make a report,” said one Los Angeles County Grade III deputy DA. “We talk a good game with our equity policy. It’s a joke. Once you report, everyone wants to know who did it, then the theories, the rumors, and the ostracization.”
Another veteran prosecutor described the damaging impact the outcome of the Silverman/Mokayef matter had on office morale.
“When the Silverman and Mokayef lawsuit was filed there was tremendous support for them behind the scenes,” she said. But as events unfolded, “we were horrified to sit by and watch the office undermine what we knew to be true.”
The prosecutor described the continued distress of watching one top manager turn his back on the two women, and another bury the information about the sexual harassment, which was not isolated to Hearnsberger.
“We know of other managers who have been promoted and engage in similar kinds of conduct,” she said, “Yet it’s made very clear that reporting it will end your career.”
PostScript: “chilling” decisions
In addition to blowing the whistle about Nishita’s two-and-half years of being sexually harassed, Tracey Stevens later reported prosecutorial misconduct in the form of unequal treatment of similarly situated defendants of different races, and alleged that files connected to one of the cases in question had been altered.
Making that report, Stevens’ lawsuit says, resulted in additional retaliation in the form an increased caseload, harassment, and a warning from that she would find herself on the receiving end of performance evaluations, which is not a regular practice for prosecutors working in specialized units. The evaluations, she was told, would be “cherry-picked” by the same supervisor she had complained about.
Other sources talked at length about an entrenched culture of retaliation that discourages anyone from reporting any kind of legal misdeed or breach of ethics inside the DA’s office, not just sexual harassment.
In explaining, two attorneys specifically cited a U.S. Supreme Court case, which originated from Los Angeles, as one more significant reason they fear reporting wrongdoing.
The 2006 landmark employment case, Garcetti v. Ceballos, arose when then supervising Deputy District Attorney Richard Ceballos wrote a memo recommending dismissal of a prosecution he considered seriously flawed, due to a questionable search warrant supported by an affidavit containing critical misrepresentations.
After Ceballos found himself being punished for reporting the problem, he filed a claim that various supervisors in the office had violated his First Amendment rights by retaliating against him for writing the memo, through transfers and denials of promotion. The civil case worked its way up to the U.S. Supreme Court, where Ceballos lost in a narrow 5-4 ruling.
According to Stephen Kohn, author of The Whistleblower’s Handbook, the case and the ruling have had a chilling effect on legal whistleblowers nationwide.
Back in Los Angeles, one of the prosecutors who told me she was harassed by a supervisor but didn’t report the harassment, pointed specifically to the Ceballos case as representative of why she and colleagues like her feel unable to complain.
“They fight you to the death,” she said. “They’ll fight you all the way up to the Supreme Court. And it’s my career, I don’t want it to die.”
Ceballos himself is still working as a prosecutor and is now assigned to the Organized Crime Division in the Hate Crimes Unit. When I informed him that more than one woman in the DA’s office said his case had left them reluctant to lodge complaints, he expressed his dismay via email.
“It’s a sad commentary on the state of the DA’s office,” he wrote. “It’s even more disappointing that Jackie Lacey as head of the office has not taken a stronger stance on the subject of sexual harassment. But given her failure to address it in the Hearnsberger matter,” Ceballos wrote, “it’s really not surprising.”
L.J. Williamson is an award-winning Los Angeles journalist and a new WitnessLA contributor. For more of her work, please visit www.LJWilliamson.com.
Photo at top of Los Angeles County District Attorney Jackie Lacey by WitnessLA