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MOORE v. SUMMERS

September 8, 2000

REGINALD G. MOORE, ET AL., PLAINTIFFS,
V.
LAWRENCE SUMMERS, SECRETARY U.S. DEPARTMENT OF THE TREASURY, DEFENDANT.



The opinion of the court was delivered by: Roberts, District Judge.

  MEMORANDUM OPINION

Plaintiffs, ten African-American current and former special agents of the United States Secret Service purporting to represent a putative class of African-American special agents who have been employed by the United States Secret Service from January 1, 1974 to the present, have filed this action against the Treasury Secretary under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994), and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Among other things, plaintiff's claim that the Secret Service has engaged in a pattern and practice of racial discrimination in its promotion of black special agents from the GS-13 to the GS-14 level. Plaintiffs have filed an application for a preliminary injunction seeking to enjoin future use of the allegedly discriminatory promotion evaluation system pending resolution of this matter on the merits. Plaintiffs also claim that they have been retaliated against for engaging in protected equal employment opportunity ("EEO") activity and seek to enjoin future retaliation. Oral argument was held on September 1, 2000. I find that the plaintiffs' evidence thus far is insufficient to give rise to an inference that the performance evaluation system is discriminatory, but does demonstrate that some actions taken by the Secret Service since this litigation began are likely to chill other black agents from coming forward with their claims.

BACKGROUND

Plaintiffs allege in their complaint that, over the course of past twenty-six years, the United States Secret Service has utilized a wide variety of racially discriminatory employment practices. Specifically, plaintiffs claim that the Secret Service's policies and practices have systematically discriminated against black special agents in the following areas: (1) placement in positions of GS-14 or above; (2) performance evaluations; (3) assignments to the position of acting supervisor; (4) transfers and assignments in general; (5) access to training; (6) assignment to undercover work; (7) hiring; (8) testing; (9) disciplinary policies; (10) awards and bonuses; (11) overall work environment; (12) retaliation, and (13) other practices relating to the terms and conditions of employment. The primary target of plaintiffs' motion for a preliminary injunction is the Secret Service's performance evaluation system. A description of how that system operates is therefore in order.

I. The Secret Service Special Agent Merit Promotion Plan

The evaluation system at issue is known as the Secret Service Special Agent Merit Promotion Plan ("MPP"). Developed by a Secret Service Task Force in 1997, the MPP consists of three distinct parts: (1) a "First-Level" evaluation; (2) a "Peer Panel" evaluation; and (3) a "Second-Level" evaluation. (Burgess Decl., Def.'s Opp'n to Pl.'s Mot. for Prelim. Inj. ("Def.'s Opp'n") Ex. 1 at ¶¶ 6-9.) The First-Level evaluation counts for 50% of a special agent's total MPP score while the Peer Panel and Second-Level scores are weighted at 20% and 30% respectively. (Id. at ¶¶ 7-9.)

The MPP is used annually to evaluate special agents for promotion. In August, each GS-13 and GS-14 special agent who wishes to compete for a promotion is required to file a notice of his or her intent to compete. (Id. at ¶ 7.) However, not every GS-13 or GS-14 special agent is eligible to compete. A special agent must have completed three years "in grade" before he or she will be considered for a promotion. (Id. at ¶ 23.) For example, in order to compete for a promotion to the GS-14 level, a special agent must first have completed three years at the GS-13 level. Plaintiffs do not allege that this practice is discriminatory in any way.

Special agents who elect to compete for a promotion are then evaluated by their supervisors in the First-Level evaluation. The supervisor is required to rate each candidate using a scale of one to five on ten specific elements such as writing ability, problem solving, oral communication, knowledge of Secret Service rules and regulations, leadership and management ability, and negotiation skill. (Id. at ¶ 7; Moore Decl., Attach. to Pls.' Mem. Prelim. Inj. ("Pls.' Mem.") at ¶ 12.) After the supervisors complete their First-Level evaluation, they meet with the candidate to discuss the results. The candidate then has fifteen days in which to file a grievance challenging the supervisor's score. This process is normally completed by the end of August and counts for 50% of the agent's total MPP score. (Burgess Decl. at ¶ 7.) Plaintiffs do not allege that the First-Level evaluation is discriminatory.

Plaintiffs' challenge begins with the Peer Panel evaluation which is normally administered in September. During this portion of the MPP, which accounts for 20% of the special agent's total score, the candidate is evaluated by a panel of more senior special agents who are at least of the grade to which the candidate is seeking a promotion. So, if the competing special agent is seeking a promotion to GS-14, the peer panel would be comprised of special agents at the GS-14 level or above. The peer panel does not necessarily include the candidate's GS-14 supervisor. (Id. at ¶ 8; Moore Decl. at ¶ 15.)

The peer panel reviews a written qualification statement drafted by the candidate which details his or her experience in the "protection" and "investigations" areas. The panel then compares the candidate's statement to lists of specific "benchmark" tasks in each area. For example, the list for "protection" includes such tasks as assisting in the logistics for major events, serving as the lead advance agent for a visit by a notable foreign dignitary, and conducting a complex intelligence investigation. The panel then gives each candidate a protection score and an investigation score between one and seven. (Burgess Decl. at ¶ 8.)

After this process is completed, all competing special agents are notified in November of their initial composite MPP score which is on a 100 point scale. Candidates then have the option of filing a grievance challenging their score. Final scores for the current promotion cycle are expected to be distributed in early January of 2001. Those scores will then be used by candidates to bid on available positions throughout the 2001 calendar year. (Burgess Decl. at ¶¶ 10-11.)

When a position opens up, the Secret Service's Personnel Division announces a time period in which it will accept bids from interested special agents. After the period for accepting bids has closed, the Personnel Division creates a "Merit Promotion Certificate" for the vacant position. The Merit Promotion Certificate is a list of the bidding special agents with the top 30 MPP scores (including ties), or the top 25% of bidding special agents, whichever is greater. If there are less than 30 bids, all of the bidders are considered. (Id. at ¶ 14.)

The special agent with the highest MPP score is not guaranteed that he or she will be awarded the vacant position. Instead, a recommendation is made to the Director by an Advisory Board which consists of the Deputy Director, all seven of the Assistant Directors, and the Chief Counsel. The Advisory Board may recommend to the Director any individual listed on the Merit Promotion Certificate, or any competing special agent already at the grade level of the vacant position who is seeking a lateral transfer. The Director then selects who will fill the vacant position. (Id. at ¶ 15.) There are no written standards governing the Advisory Board in making its recommendation or the Director in making a selection. The only constraint on the Advisory Board and the Director is the MPP's requirement that all selections be made on a non-discriminatory basis and that the selection "not be based on any criteria that are not job related." (MPP, Pls.' Supp. Ex. C at 4.)

II. Plaintiffs' Allegations Regarding MPP

In this suit, plaintiffs maintain that the Peer Panel and Second-Level evaluations, which together account for 50% of the composite MPP score, operate to the systematic detriment of black special agents. Specifically, plaintiffs allege that these two portions of the MPP allow half of the candidate's final score to be determined by the subjective preferences of evaluators who have never actually observed the candidate on the job. Plaintiffs also find fault with the absence of any published standards governing the Advisory Board or the Director in their choice of which agent on the Merit Promotion Certificate is selected to fill the vacant position. According to plaintiffs, this subjectivity has resulted in the proliferation of a "good old boys network" favoring white agents over black agents for promotions. Plaintiffs offer statistical and anecdotal evidence to support their allegations.

A. Statistical Evidence

B. Anecdotal Evidence

Plaintiffs contend that the experience of their lead plaintiff, Special Agent Reginald "Ray" Moore, provides an egregious real life example of how the MPP works to prevent black special agents from advancing in the Secret Service. After serving seven years in the Secret Service, which included stints in the Secret Service's Miami and Baton Rouge Field Offices, Special Agent Moore was promoted to GS-13 in July of 1991. (Moore Decl. at ¶¶ 6-7.) He then served as the Course Director for the Investigative Tactics portion of the Special Agent Training Courses, and, beginning in 1994, was assigned to the Presidential Protective Detail ("PPD") where he became Acting Assistant Special Agent In Charge ("ATSAIC") for the Joint Operations Center at the White House. He was involuntarily transferred to the Secret Service's Dallas Field Office in October of 1999. (Id. at ¶¶ 2-5.)

Despite his credentials, Special Agent Moore has not been promoted to GS-14. As of January 1, 1999, he was ranked by the MPP as 47th out of 393 other eligible GS-13 level Special Agents, making him the highest rated black agent of all GS-13s in the Secret Service. Moore claims that during 1999, the Secret Service promoted at least 92 other special agents who had lower overall performance rankings on the MPP than he did. (Id. at ¶ 8.)

According to plaintiffs, the discrimination against Moore became even more apparent during the 1999/2000 promotion cycle. On the MPP administered in 1999, Moore received a perfect 50 out of 50 in his First-Level evaluation. On the Peer Panel evaluation, he received 6.33 points out of 7.00 on the Investigation subpart and 6.67 points out of 7.00 on the Protection subpart. In the Second-Level evaluation, he received the maximum score of 7.00 on both the Leadership and Decision Making subparts. Moore's composite score of 98.57 out of a possible 100 points made him the 20th ranked agent out of 310 eligible GS-13 level special agents in the Secret Service and still, to his knowledge, the highest rated black agent. Yet, Moore did not receive a promotion while, according to him, other lower rated agents did. (Id. at ¶¶ 9, 13, 16, 18.)

Plaintiffs contend that the Secret Service's failure to promote Special Agent Moore strongly demonstrates the subjectivity and unfairness inherent in the current Secret Service promotion system. Specifically, plaintiffs allege that the Peer Panel and Second-Level evaluations are not guided by objective criteria. Special Agent Moore claims that, because the GS-14 supervisors on the peer panel and the Assistant Directors' representatives administering the Second-Level evaluation are unlikely to have actually observed the work of the candidate they are evaluating, they rely heavily on oral recommendations from the Special Agent In Charge ("SAIC") over the candidate being evaluated. According to Special Agent Moore, if the SAIC does not call the GS-14 supervisors on the peer panel or the Assistant Director to lobby for the candidate's promotion, "the candidate has virtually no chance of getting a Peer Panel or Second Level Evaluation score that would be competitive for promotion." (Id. at ¶ 19.)

Moore maintains that this problem is exemplified by comparing his 1997/1998 and 1998/1999 performance evaluations. He claims that he received a low score on his 1997/1998 Second-Level evaluation because his SAIC did not call the Assistant Director to push for Moore's promotion, thereby contributing to a low composite score of 83 out of 100. For the 1998/1999 performance evaluation, by contrast, Moore's SAIC did call the Assistant Director and Moore received a high Second-Level score which contributed to a high overall score of 97.03. (Id. at ¶ 20.) Despite this high composite score, however, Moore was not promoted during the 1998/1999 promotion cycle. Nor was he promoted during the 1999/2000 promotion cycle when he received an even higher score of 98.57. (Id. at ¶ 21.) Thus, Special Agent Moore believes that the MPP score is "meaningless" and that "[t]he performance evaluations merely add a veneer of legitimacy to promotion selections that are, in fact, made via the racial spoils system of the `good old boys' network." (Id.)

III. retaliation Allegations

Plaintiffs' second set of allegations charge that, since plaintiffs Moore, Summerour, and Turner filed an amended EEO class action complaint on February 24, 2000, the Secret Service has launched a "campaign of threats and intimidation" designed to undermine support for Black Agents of the Secret Service, Inc. ("BASS, Inc."), an organization of black Secret Service agents involved in promoting this lawsuit. (Pls.' Mem. at 24.) Plaintiffs also allege that the Secret Service has retaliated against the named plaintiffs.

In anticipation of the hearing on plaintiffs' motion for a preliminary injunction, I granted plaintiff's limited discovery on the issue of whether plaintiffs had in fact been retaliated against for engaging in protected EEO activity. Plaintiffs took the deposition of Secret Service designee Barbara Saliunas, Deputy Chief of the Secret Service's Personnel Division, which lasted five days and covered a variety of topics. Ms. Saliunas's deposition wound up not only addressing plaintiffs' wide-ranging allegations of retaliation, but also some of their allegations regarding the discriminatory nature of the MPP.

Plaintiffs' retaliation allegations and the defendant's responses to them can be summarized as follows:

A. The Alleged Campaign to Undermine BASS, Inc.

BASS was formed in the early 1980s as a way for black agents to communicate with each other. (Cockell Decl., Def.'s Opp'n Ex. 4 at ¶¶ 2-5.) Special Agent Summerour describes it as "an informal network of social and professional support for African-American Secret Service Agents in the Secret Service." (Summerour Decl., Attach, to Pls.' Mem. at ¶ 12.) Until recently, BASS had no official organization and lacked a "formal agenda." (Second Spriggs Decl., Def.'s Opp'n Ex. 5 at ¶ 5.) In February of 2000, plaintiffs Turner, Moore, and Summerour decided to incorporate BASS so that it would become a "democratically elected representative organization to better address issues common to all African-American Secret Service Agents." (Summerour Decl. at ¶ 13.) The incorporation process involved "select[ing] interim officers and directors, prepar[ing] by-laws, and electing a board of directors and slate of officers." (Id.)

Plaintiffs allege that, since the filing of their amended EEO class action complaint on February 24, 2000, the Secret Service has launched a concerted "campaign" to discredit BASS, Inc. in the eyes of black special agents so that they will be discouraged from supporting both BASS, Inc. and this lawsuit. This alleged campaign consists mainly of the following: (1) a Secret Service-wide e-mail sent out by Brian Stafford, Director of the Secret Service, on February 25, 2000 — the day after the plaintiffs had filed their amended EEO complaint — stating, among other things, that he was "disappointed and troubled by the allegations" and that, "It is offensive for anyone to question our commitment to equal employment opportunity for all of our employees" (Pls.' Mem. Ex. A); (2) an e-mail from Assistant Director ("AD") Larry Cockell, who is black, sent to all BASS members hours after Director Stafford's e-mail in which Cockell questioned how the interim officers of BASS were going about incorporating BASS, Inc. (Pls.' Mem. Ex. B); (3) a March 15, 2000 e-mail from AD Cockell to all BASS members stating his belief that the interim leadership of BASS, Inc. had conducted a "coup d'etat" to illegitimately seize control of the organization without consulting the membership (Pls.Mem.Ex. C); (4) a May 12, 2000 e-mail from AD Cockell to all BASS members again expressing his disappointment in the direction that BASS was taking, disaffiliating himself from BASS, Inc., and adding "I choose not to buy into this sham" (Pls' Mem. Ex. E); (5) e-mail messages from other senior black agents to all BASS members declining nominations to be officers of BASS, Inc. even though such messages were supposed to be sent only to Special Agent Summerour, who was serving as interim secretary. (Pls.' Mem. Ex. F.)

Some of the e-mails declining nominations echoed AD Cockell's discontent with the new direction that BASS was taking. For instance, SAIC Wallace Shields stated in a May 13, 2000 e-mail, "I am very saddened by what I see among agents (and former agents) that have come such a great distance together." He decried the "rift" that had developed, apologized to the "new agents" for what they were witnessing, and concluded, "I know that the last thing you need is to be associated with the kind of behavior that is now on the e-mail system." SAIC Jerry Wyatt's May 16, 2000 e-mail stated that he did not wish to be a part "of an organization that divides and alienates the majority of black agents for the sole purpose of furthering the individualistic agendas of a few. . . . [T]he justice you claim to seek appears to be `Just-us', as black agents, being ridiculed."

Plaintiffs contend that these e-mails demonstrate that several senior black secret service agents have "circled the wagons" to discourage junior black special agents from supporting BASS, Inc. and plaintiffs' lawsuit. (Pls.' Mem. at 26-27.) To corroborate this allegation, they have submitted the declaration of Special Agent Cheryl Montgomery-White who alleges that, after attending a meeting in February of 2000 about the incorporation of BASS and this lawsuit, she had a conversation with SAIC Keith Prewitt. SAIC Prewitt, who is black, was also at the meeting. According to Special Agent Montgomery-White, during this conversation, SAIC Prewitt told her in substance that this lawsuit is "not going anywhere" because "all the Secret Service has to do is to put [AD] Larry Cockell, [AD] Danny Spriggs, SAIC Steve Carey, SAIC Gerry Wyatt, and me out front, and the lawsuit will go [away]." (Montgomery-White Decl., Attach. to Pls.' Notice of Filing at ¶ 51.) Plaintiffs have also noted that between May 28, 2000 and June 15, 2000, eight junior black Special Agents resigned from BASS and six of them have asked to be permanently removed from BASS's email router. (Ivery Supp. Decl., Pls.'s Reply Supp. Prelim. Inj. Ex. 2 at Ex. A.)

In response to these allegations, defendant has submitted declarations from all of the senior black agents alleged to have sent e-mails geared toward undermining BASS, Inc. and this lawsuit. These declarations generally deny any effort influenced by the Director or otherwise to "circle the wagons" or to discourage black special agents from supporting BASS, Inc. AD Cockell maintains that his e-mails were simply a personal expression of (1) his frustration after some in the media had implied that he was involved in this lawsuit, (2) his discontent with what he perceived was a radical alteration in BASS being conducted without consulting the general membership, and (3) his indignation after receiving an e-mail through the BASS e-mail router suggesting that he had been "bought off by a few high-profile promotions." (Cockell Decl. at ¶¶ 11-17; Saliunas Dep. at 824-53) As for the e-mails from other senior black agents rejecting nominations to be officers of BASS, Inc., the senders of those e-mails claim that they were doing nothing more than responding to an e-mail which warned them that if they did not respond within 72 hours, their names would be placed on the ballot. (Cockell Decl. at ¶¶ 16-17; Spriggs Decl., Def.'s Opp'n Ex. 5 at ¶ 7; Carey Decl., Def.' Opp'n Ex. 16 at ¶¶ 5-6; Rowe Decl. Def.'s Opp'n Ex. 17 at ¶¶ 5-8; Hill Decl., Def.'s Opp'n Ex. 18 at ¶¶ 4-6; Rodgers Decl., Def.'s Opp'n Ex. 19 at ¶¶ 7-10; Mapp Decl., Def.'s Opp'n Ex. 20 at ¶¶ 5-7; Shields Decl., Def.'s Opp'n Ex. 21 at ¶¶ 5-9; Carter Decl., Def.'s Opp'n Ex. 22 at ¶¶ 5-8; Wyatt Decl., Def.'s Opp'n Ex. 23 at ¶ 5.) Further, defendant contends that the senior black agents who were critical of BASS, Inc. were not attempting to undermine it or this litigation, but were merely expressing their own personal concern and disappointment over the course that BASS, Inc. was taking.

Defendant has submitted no such explanatory declaration from Director Stafford concerning his e-mail. However, defendant denies that Director Stafford intended his February 25, 2000 message to be intimidating and claims that the e-mail was designed in large part to reaffirm the Secret Service's commitment to equal employment opportunities. (Saliunas Dep. at 778.)

B. Special Agent Leroy Hendrix

Special Agent Leroy Hendrix has been a member of the Secret Service since May of 1989 and is currently assigned to the Vice Presidential Protective Division ("VPPD"). He alleges that he has been denied a position as a "whip" on the VPPD and a promotion because of his complaints of discrimination within the VPPD and his participation in this lawsuit.

A whip is a GS-13 level informal supervisor of a protective shift who acts as a supervisor in the absence of the actual shift leader, who is a GS-14 special agent. There are usually three whips on a particular detail. According to plaintiffs, obtaining a whip position drastically increases one's chances for a promotion because of the supervisory responsibilities involved. (Hendrix Decl., Attach, to Pls.' Mem. at ¶ 15.)

Special Agent Hendrix claims that, on March 8, 2000, he sent an e-mail to the SAIC of the VPPD, Special Agent William Pickle, which complained about the lack of minority and females agents assigned to whip positions on the VPPD and expressed the belief that lesser qualified white male agents were being promoted instead. Hendrix and Pickle had a meeting the next day, barely two weeks after Director Stafford's e-mail expressing offense and disappointment at the allegations of discrimination. At the meeting, Hendrix claims that Pickle expressed his "disappointment" in Hendrix's belief that whip assignments were made in a discriminatory fashion. Pickle also allegedly explained that whips would in the future be chosen based primarily on the shift leader's vote and also noted that white agents had "complained" that three "number one" ...


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