'Invasive' Nebraska Trooper Exams Compliant Filed Too Late: Feds

LINCOLN, NE — The U.S. Equal Employment Opportunity Commission, tasked with stopping workplace discrimination, decided not to investigate allegations that female Nebraska State Patrol officers were forced to undergo medically unnecessary sexually invasive exams. The agency's reasoning? Trooper Brienne Splittgerber waited too long to file a complaint.

Splittgerber filed a complaint alleging she was forced to expose her vagina to a doctor during mandatory pre-employment physicals. But according to a June letter sent to her attorneys, the federal agency ruled that the complaint was filed after a 300-day deadline. The commission said it had no authority to look into the exams, which prompted criticism of the patrol when they were detailed in a lawsuit filed by Splittgerber this month.

Splittgerber was told the patrol was investigating concerns she first raised in 2014 after going through the exam, which is why she didn't complain sooner. She filed the federal complaint in May after learning patrol leaders closed the inquiry without clear findings, fearing nothing would change. She argued that the patrol's response created a hostile work environment for female troopers, who make up six percent of the patrol's 455 sworn officers.

Then-patrol superintendent Col. Brad Rice didn't explain the medical purpose of the exams conducted by Lincoln physician Stephen Haudrich, but told Splittgerber in April the patrol would contract with a different doctor going forward, her complaint said.

The patrol now says the exams were hernia checks required for all troopers, but other doctors say the procedure as described isn't standard. Splittgerber alleges that male candidates weren't required to take off their pants with one possible exception.

In a May 26 response to her lawyers, commission intake supervisor Khalifah Graff in Kansas City said the agency could not investigate the complaint because the alleged discrimination occurred too long ago. Graff also claimed the patrol "has already remedied the conditions which you allege were discriminatory."

"As such, it does not appear we will take any further action in your complaint," Graff wrote in recommending the case be dismissed, which was adopted by a regional director in June. The letters in May and June were provided to The Associated Press by Splittgerber's lawyers.

Splittgerber's attorney, Tom White, said he wasn't surprised the commission dismissed the complaint but took issue with the claim that the problems had been fixed.

"If they see a chance to sweep a file off quickly, they'll do that. The problem is this one then blew up," he said.

White said he has since filed federal complaints on behalf of two other female troopers who went through the exams in 2016. He said that while those exams also occurred more than 300 days ago, he expects the commission to investigate this time based on his argument that the hostile work environment was more recent.

A spokeswoman for the commission declined comment.

Legal experts with no involvement in the case said the commission often strictly interprets a rule requiring complaints to be filed within 300 days of the last discriminatory act, partly to reduce its caseload.

"They look at the rules and say, 'We don't have the authority to investigate it, as outrageous as that conduct may be,'" said St. Louis civil rights lawyer Jon Berns.

The use of the 300-day deadline is an "easy out" for the commission on complaints that might take more effort to understand, said Des Moines attorney Tom Newkirk, an expert in employment discrimination.

Splittgerber alleges that in September 2014, Haudrich instructed her to remove her pants and expose her vagina for the examination.

She complained to superiors after her personal doctor told her the exams were unnecessary and she learned that male troopers said they weren't forced to remove their pants. She said she was promised the patrol would investigate but never notified of any findings. She said she complained again months later when she learned that another class of female troopers would be subject to examination by Haudrich.

In her complaint, Splittgerber wrote that she still didn't know whether the "invasive, humiliating, and unnecessary procedures" were the actions of an unethical doctor or the result of the agency's directives.

Haudrich, who has no disciplinary history on his medical licenses in Missouri and Nebraska since he started practicing in 1990, and his attorney haven't returned messages seeking comment.

A review by Gov. Pete Ricketts' office faulted patrol leaders for failing to document Splittgerber's complaints and investigate the allegations. The review also faulted Rice, who was fired by Ricketts in July, for failing to correct the agency's inaction after he learned about it in February. The patrol has launched a criminal investigation into the exams, and a state senator last week filed a complaint asking regulators to investigate Haudrich's conduct.

By RYAN J. FOLEY, Associated Press

Photo credit: Nati Harnik/Associated Press