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Sykes v. Napolitano

June 25, 2009

LARRY J. SYKES, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Larry Sykes complains that he was involuntarily reassigned by the United States Secret Service to a less advantageous position because of his race. He sues Janet Napolitano, Secretary of the Department of Homeland Security, of which the Secret Service is a part, in her official capacity. Mr Sykes has proffered an expert upon whose opinion he intends to rely in rebutting any defense motion for summary judgment and at trial. Defendant has moved to disqualify the expert on the basis that he is not properly qualified to offer testimony as an expert. For the reasons explained herein, the Court will grant Defendant's motion to disqualify Plaintiff's expert.

I. BACKGROUND

A. Mr. Wyatt's Expertise

Larry Sykes is an employee of the Secret Service. He was the Special Agent in Charge ("SAIC") of the Johnson*fn2 Protective Division, Austin, Texas, before being involuntarily reassigned to the position of Assistant Special Agent in Charge ("ASAIC") of the John J. Rowley Training Center, Beltsville, Maryland. He complains that the involuntary transfer is an adverse action taken because of his race. He alleges that the pretextual basis for this reassignment was his "supposed improper response to the actions of several insubordinate, emotionally disturbed, and potentially threatening employees under his supervision." Compl. ¶ 6.

Mr. Sykes has proffered Jerry O. Wyatt as an expert witness. Mr. Wyatt has been president of his own company, Wyatt Security Consultants, LLC, since 2005. More pertinent to his potential testimony are his 26 years in the Secret Service (1976-2001),*fn3 followed by a short stint as SAIC, Environmental Protection Agency, Houston, Texas (2002), and some years as Federal Security Director, Department of Homeland Security, Houston, Texas (2002-2005). Mr. Wyatt provides his background:

I am a retired Special Agent in Charge, Senior Executive Service (SES) who was promoted through positions of increasing responsibility, ultimately progressing up the ranks to the Senior Executive Service, the top leadership positions for the U.S. Secret Service. My career spanned 26 years. During my career, I was assigned to investigative offices and protective divisions in Albuquerque, New Mexico; New York, New York; Newark, New Jersey; Washington, D.C.; Las Vegas, Nevada; Los Angeles, California; and Houston, Texas. I was assigned to the Participating Inspectors Program and conducted office inspections to determine operational and administrative compliance. At the conclusions of these inspections, I made commendations or recommendations for improvements. I participated in numerous employee misconduct investigations and personnel performance assessments.

Wyatt Report at 2. Since his retirement from the Secret Service, Mr. Wyatt worked briefly for the EPA and DHS. In the latter position, he "had complete accountability for security operations at three U.S. airports in Houston and Beaumont, Texas," as he "transitioned passenger and baggage screening operations from private contractor employees to federal employees on time and within budget." Id. at 3. Mr. Wyatt reports no private sector experience until his retirement when he started his own consulting business.

Mr. Wyatt is called upon to testify to two issues: the first "concerns the legal standard in an employment discrimination claim" and the second "concerns the way or ways that a supervisor should handle information given to him by a third party concerning a possible relationship between two agents." Id. at 1-2. As to the second issue, counsel for Mr. Sykes asked Mr. Wyatt to "address the issue of a [sic] whether senior management of the Secret Service is expected to proceed against a Special Agent In Charge when he and a staff agent disagree about whether the agent transmitted a complete account of the details of a complaint that might involve sexual conduct." Id. at 2.

B. Mr. Wyatt's Expert Report

Mr. Wyatt's expert report comes to two conclusions:

1. "[T]he involuntary demotion from SAIC to ASAIC greatly diminished the Plaintiff's possibility of further advancement, and damaged his professional standing[;]" and

2. "[I]t appear[s] that the Plaintiff immediately upon notification initiated appropriate measures to neutralize the situation."

Id. at 4-5.

Mr. Wyatt explains that the Secret Service has two missions: protection and criminal investigation. The Secret Service was first called into protection after the assassination of President William McKinley in 1901; it protects the President, Vice President, their immediate families, former Presidents (now limited to the first ten years after they leave office), visiting heads of foreign states, and others. The investigative mission of the Secret Service actually came first. It was formed in 1865 to investigate and prosecute counterfeit fraud. It has now expanded into various crimes involving counterfeiting, financial institution fraud, computer and telecommunication fraud, and money laundering. See generally, www.secretservice.gov (last visited on June 1, 2009). Mr. Wyatt opines that "the protection component has always been the most prestigious assignment." Wyatt Report at 4.

He supports his first conclusion with the following opinions: To the best of my knowledge, no one who has been involuntarily demoted from the SAIC of a Protective Division to ASAIC of James J. Rowley Training Center has ever recovered the loss of status, earning potential and upward mobility. Simply speaking, this involuntary reassignment reduced Plaintiff from being the #1 leader of a prestigious protection division who reports to a Deputy Assistant (DAD) or Assistant Director (AD) to one of a number [of] ASAICs (#3s) who report to a DSAIC (#2) and a SAIC (#1) of a non protection division.

Although on paper, the Plaintiff remained at the same pay grade, his take home is negatively affected by the increased taxation, home prices and other quality of life expenses incurred at his reassigned duty station.

Additionally, this reassignment affects his advancement and future employment upon retirement. . . . The Plaintiff's reassignment has in effect voided any chance that ...


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