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Moore v. Napolitano

United States District Court, District of Columbia

February 25, 2013

Reginald MOORE, et al., Plaintiffs,
v.
Janet NAPOLITANO, Defendant.

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Jennifer I. Klar, John Peter Relman, Megan Cacace, Relman, Dane & Colfax, PLLC, Erica Knievel Songer, Thomas John Widor, E. Desmond Hogan, Washington, DC, for Plaintiffs.

Benton Gregory Peterson, Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiffs, African-American current and former Special Agents (" SAs" ) of the United

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States Secret Service, bring this employment discrimination action individually and as a putative class action on behalf of African-American SAs against the Secretary of the United States Department of Homeland Security alleging tat the Secret Service engaged in a pattern and practice of racial discrimination in promoting African-American SAs to GS-14 and GS-15 positions and that the Secret Service's promotion process has an adverse impact upon African-American SAs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The plaintiffs move to certify a class of African-American current and former SAs who have allegedly been denied promotions due to racial discrimination under Federal Rule of Civil Procedure 23. The defendant moves to exclude the testimony of plaintiffs' expert, Dr. Charles Mann, offered in support of the plaintiffs' motion for class certification. Because Dr. Mann is qualified to offer his expert opinion and his testimony is relevant and reliable, the defendant's motion will be denied. Because the class plaintiffs have met Rule 23(a)'s numerosity, commonality, typicality, and adequacy of representation requirements, and because the plaintiffs have met Rule 23(b)(3)'s predominance and superiority requirements, the plaintiffs' motion for class certification will be granted.

BACKGROUND

The relevant facts for the motion for class certification were set out in Moore v. Napolitano (Moore III), 269 F.R.D. 21 (D.D.C.2010) as follows:

Plaintiffs' second amended complaint alleges that throughout the proposed class period,[1] the Secret Service has maintained a pattern and practice of discrimination against African-American SAs with regard to selections for competitive positions, discipline, transfers, assignments, testing, and hiring. Plaintiffs generally allege that, over the course of many years, the Secret Service has engaged in a wide variety of racially discriminatory employment practices, that it harbors a racially insensitive environment that tolerates racist activities, and that [it] fails to protect its African-American SAs from racial discrimination. Although the Secret Service has received multiple complaints about the discriminatory conduct, plaintiffs claim, no sufficient remedy has been provided.

I. PROMOTION EVALUATION PROCESS

The plaintiffs' discrimination claims center around the Secret Service evaluation system known as the Secret Service Special Agent Merit Promotion Program (" MPP" ). The MPP is used annually to evaluate SAs for promotion. An MPP score on a scale up to 100 points is used by an agent seeking promotion to bid on available or vacant positions throughout an upcoming bid cycle. (Pls.' Mem. of P. & A. in Supp. of Pls.' Mot. for Class Cert. (" Pls.' Mem." ) at 15.) A participating GS-13 Agent receives a total MPP score that consists of three distinct parts: a (1) First Level evaluation; (2) Peer Panel evaluation; and (3) Second Level evaluation. A participating GS-14 Agent receives an MPP score that consists of two parts: a (1) First Level evaluation and (2) Second Level evaluation. ( Id. at 15-16.) The first level evaluation to which both GS-13 and GS-14 participating agents are subject is

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completed by the candidate's immediate supervisor and is signed by a Special Agent in Charge. ( Id. at 16.) The supervisor rates 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.; see also Moore v. Summers [ ( Moore I ) ], 113 F.Supp.2d 5, 8 (D.D.C.2000).)
The Peer Review Panel applies to candidates seeking promotion to the GS-14 level. The Panel evaluates candidates on their " protection" and " investigation" experience. (Pls.' Mem. at 16.) Peer Panel members include agents at the GS-14 level or above, who are given oral instructions on conducting the panel. Notes are not taken during the Peer Panel evaluation. ( Id. at 17.)
A Second Level Panel evaluates candidates for GS-14 or GS-15 promotions. GS-14 Agents are rated on six separate competencies, including written or oral communication, ability to lead or direct others, and ability to analyze problems and recommend solutions. ( Id. ) The Second Level Panel members include representatives from each of the seven Assistant Director (" AD" ) offices, and the members are instructed not to take notes and may review and adjust the ratings at their discretion. ( Id. at 17-18.)
Once an agent is given an MPP score, she may use her score to bid on vacant positions. In some cases, a vacant position may be filled without the position having to be posted. ( Id. at 18.) The MPP scores are then used to generate the Best Qualified List (" BQL" ). The candidates are ranked by their MPP scores and the MPP policy creates a cut-off for the ranked list of bidders or candidates. ( Id. at 19.) The 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 that consists of the Deputy Director, seven ADs, and the Chief Counsel. In making its decision, the Advisory Board receives the assignment history, bid history, entry on duty date, and the date of the last promotion of each bidder or candidate listed on the BQL. ( Id. ) For each vacant position, the relevant AD makes a selection recommendation to the Advisory Board from the BQL for that position. ( Id. at 20.) Based on the AD's recommendation, the Advisory Board makes a recommendation to the Director. ( Id. )

II. AGENTS' INDIVIDUAL CLAIMS

A. Reginald Moore

Reginald Moore has been employed by the Secret Service for more than 20 years and served as a GS-13 agent in the Operations Section and the White House Joint Operations Center. ( Id. at 33 (citing Ex. 53).) An African-American, Moore bid for and was not selected for more than 180 GS-14 positions from 1999 to 2002, and at one point was assigned to train a white selectee for a position on which he had formerly bid. ( Id. at 34-35.) Moore eventually was promoted to a GS-14 and a GS-15 position, but he alleges that his promotions came only after being transferred to a Chicago field office, serving as an agent for 18 years, and filing an EEO complaint and a lawsuit. ( Id. at 35-36.)

B. Luther Ivery

Luther Ivery is an African-American former agent who became eligible to bid on GS-14 positions in 1993, but was not selected for more than 130 GS-14 positions.

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For several positions, " his MPP score was not high enough to place him on the [BQL]." ( Id. at 37.) Ivery alleges that even once he made the BQL, " he was passed over for scores of promotions[.]" ( Id. ) Ivery was promoted to a GS-14 position in 2002, but alleges that his promotion came only as a result of his having filed suit. ( Id. at 39.) Ivery retired from the Secret Service in 2004, but asserts that " he would have reached the GS-15 ... level before retirement" had he not experienced the Secret Service's discriminatory practices. ( Id. )

C. John Turner

John Turner is an African-American former SA who bid for more than 80 GS-14 positions for which he was not selected. ( Id. at 40.) Originally his MPP score was not high enough to place him on the BQL, but once it was, he was " nevertheless denied dozens of GS-14 positions on which he bid." ( Id. ) Turner alleges that he was promoted " six years after he first became eligible" and only after filing an EEO complaint and a lawsuit. ( Id. at 41.)

D. Cheryl Tyler

Cheryl Tyler is a former SA who was employed by the Secret Service from 1984 to 1999.( Id. ) Tyler alleges that she became eligible to bid for a GS-14 promotion in 1993, but deferred bidding until 1996 because her MPP scores were not competitive enough. ( Id. at 42-43.) Tyler was the only African-American female SA in the Atlanta Field Office and that, " [a]t the time she resigned, and ... the filing of this lawsuit, there were no African-American female Agents in a GS-14 position." ( Id. at 41-42.) Another agent was " troubled ... by ... Tyler's experience in the Secret Service's Office of Training" because Tyler had " worked in every possible assignment and/or position within the Office, yet she was continually passed over for promotion." ( Id. at 43 (quoting 7/28/00 Webb Decl. ¶ 36).) Tyler asserts that she resigned in 1999 " because she could not reach the GS-14 level as a result of discrimination" and that the Agency told her that it " was not ready for an African-American female supervisor." ( Id. at 44 (citing C. Tyler Decl. ¶¶ 36, 34).)

E. Yvette Summerour

Yvette Summerour claims that she experienced discrimination by the Secret Service even before it hired her because it delayed her hiring by five years and that, after being hired, from 1998 through 2001, she " applied for and was denied promotion to almost 70 GS-14 positions." ( Id. at 44-45.) In the " calendar year before this lawsuit was filed ..., [she] applied for and was denied promotion to twelve GS-14 positions." ( Id. at 45.) Summerour also alleges that she was " passed over for promotion in favor of a white (male) Agent who had previously been transferred" as a result of sexually harassing her. ( Id. at 45-46.) Summerour claims further that she was " denied dozens of promotions for which she made the [BQL]" and that it was only as a result of this lawsuit that she " was finally promoted to a GS-14 position[.]" ( Id. at 46.) Summerour " and another African-American female [agent] ... were the first GS-14 African-American female [SAs] in the history of the Secret Service." ( Id. )

F. Kenneth Rooks

Kenneth Rooks is an African-American SA who joined the Secret Service in 1995 and has been a GS-13 since approximately

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2000. ( Id. at 47.) Rooks asserts that he has " bid for over 160 GS-14 positions, but has not been promoted" and that, even though he received a high score from his supervisor, he " was kept off the [BQL] or ranked low on the [BQL], and thus was effectively disqualified from promotions." ( Id. at 47-48.)

G. Andrew Harris

Andrew Harris was hired by the Secret Service in 1987 and alleges that due to the Secret Service's discriminatory practices against African-Americans, he " had to file EEO complaints in order to be (1) hired, (2) promoted to GS-14, and (3) promoted to GS-15." ( Id. at 49.) Harris alleges that he " bid on and was denied more than 20 GS-14 positions, despite his qualifications, due to the discriminatory promotions process." ( Id. (citing Ex. 80).) Harris alleges that the Secret Service told him that he must " bid outside of D.C. to be promoted" even though the requirement to bid outside of the District of Columbia " is not written in the MPP, and is not imposed on white Agents; instead, it only serves as a barrier to the promotion of African-American Agents." ( Id. at 51.) For support, Harris compiled a list of " thirty-two non-African-American Agents who were promoted from GS-13 to GS-14, and from GS-14 to GS-15, without ever leaving the Washington, D.C. area." ( Id. at 51-52 (citing Ex. 85).)

H. Leroy Hendrix

Leroy Hendrix alleges that " [b]ecause of the Secret Service's discriminatory promotions process, [he] was forced to bid for more than 230 different GS-14 positions prior to finally being promoted, even though he was qualified for each and every position." ( Id. at 52 (citing Ex. 87).) Hendrix, an African-American, further alleges that he was not selected for a position " when his score was ten points higher than the selectee's score." ( Id. at 53 (citing Ex. 88 at 455).) Hendrix " bid on and was not selected for over forty GS-15 positions" and claims that, although he was " the most qualified choice" for a Special Services Division/White House Mail position, he was not selected and was " forced to vacate his office to make room for the white selectee, and ... train that Agent." ( Id. at 53-54.) Hendrix states that he " was finally promoted to a GS-15 Assistant Special Agent in Charge position in the Los Angeles Field Office" but that " he was required to accept a cross-country move to be promoted[.]" ( Id. at 54.)
Moore III, 269 F.R.D. at 24-27.

The plaintiffs have moved for class certification three times before. The plaintiffs' third motion for class certification was considered in Moore III. There, the plaintiffs moved to certify a class

on behalf of all current and former African-American Agents who were employed as Criminal Investigators (GS/GM-1811) and who had the required time-in-grade to seek promotion to competitive positions at the GS-14 level at any time during the years 1995 to 2004, and/or who had the required time-in-grade to seek promotion to competitive positions at the GS-15 level at any time during the years 1995 to 2005.

Id. at 27 (internal quotation marks and citation omitted). Although the plaintiffs' proposed class satisfied the numerosity and commonality prongs, the plaintiffs' motion for class certification was denied without prejudice because the class representatives' claims were not typical of the class members' claims and there were conflicts

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of interest within the class. Id. at 24, 35.

The plaintiffs have again moved for class certification. In an effort to cure the defects in the proposed class denied certification in Moore III, the plaintiffs have narrowed their proposed class. The plaintiffs now move to certify a class on behalf of

[a]ll current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995-2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995-2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, Deputy Director, or the Director of the Secret Service during the class period.

Pls.' Mot. for Class Cert. at 2.

In support of their motion for class certification, the plaintiffs offer the report of statistician Dr. Charles Mann, which concludes that the MPP process had an adverse impact on African-American SAs applying for promotion to GS-14 and GS-15 positions during the class period (i.e., 1995 to 2004 for promotions to GS-14 positions and 1995 to 2005 for promotions to GS-15 positions) and a four-year background period (i.e., 1991 to 1994). The defendant moves to exclude Dr. Mann's testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), arguing that Dr. Mann's expert opinions are unreliable and irrelevant.

DISCUSSION

I. MOTION TO EXCLUDE EXPERT TESTIMONY [2]

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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