Moore, et al v. Napolitano
For over a decade, Relman, Dane & Colfax has represented a class of African-American United States Secret Service Special Agents who have dedicated their lives to protecting the President, Vice President, candidates and foreign dignitaries, but have faced a race-based glass ceiling. Instead of promoting Special Agents based on qualifications or merit, the Secret Service has employed a "good 'ol boy" network that favors white Agents and tolerates racial favoritism and overtly racist acts.
For example, lead Plaintiff Reginald "Ray" Moore had served in the Presidential Protective Division ("PPD") for approximately five years, held the highest GS-13 position of Number 1 Whip on the President's detail, received a perfect promotion evaluation score from his supervisors on PPD, and held the highest overall promotion score of any African-American GS-13 Special Agent. Yet, he was passed over for a less qualified white Special Agent who had never even served in the Presidential Protective Division. Plaintiff Moore was required to train the white Agent before he was transferred without promotion.
The Secret Service has a long history of racial discrimination. African-American Special Agents describe: African-American Agents being referred to as "nigger" by peers and supervisors; an African-American Agent receiving a phone message after he transferred to a new office stating "You little Nigger. You better leave Philly or you'll never leave alive;" a high-performing African-American Agent being referred to as "Super Nigger;" a swastika and the word "Niggers" being painted on the wall of a field office; and communications between African-American Agents being referred to as "nigger talk." The environment of racial discrimination and hostility continues today in the Secret Service. In April, 2008, a noose was found hanging in a secure building at the Secret Service's James J. Rowley Training Center in Beltsville, Maryland. That same month, the Secret Service produced a series of racist emails that were sent to and from Secret Service e-mail accounts in just the last few years and involve at least twenty current or former Secret Service supervisors.
The Plaintiffs have amassed extensive statistical evidence of race discrimination in the promotion process and presented more than sixty declarations of African-American Special Agents recounting their personal experiences of race discrimination by the Secret Service.
On February 25, 2013, United States District Judge Richard Roberts granted Plaintiffs’ motion for class certification. The class consists of: “all 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; 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, a Deputy Director, or the Director of the Secret Service during the class period.”
In the same opinion, the Court rejected Defendant’s challenge to Plaintiffs’ statistical expert’s testimony, finding the testimony both “relevant” and “reliable.”
The Defendant has been sanctioned for discovery misconduct four times.
On July 15, 2010, Judge Roberts upheld an evidentiary sanction imposed by United States Magistrate Judge Deborah Robinson on December 17, 2008. Judge Roberts held that the Secret Service is precluded from proffering any purported legitimate non-discriminatory reason why the eight named Plaintiffs were not selected for promotions in response to the individual Plaintiffs’ prima facie case. The Magistrate Judge had sanctioned the Secret Service for the Agency's willful noncompliance with discovery obligations and court orders, calling the Agency's "recalcitrance" in producing evidence "the most prominent feature of the record in this action." After a sixteen-day evidentiary hearing, during which it was revealed that the Secret Service failed to preserve, concealed, and even burned key evidence, Magistrate Judge Robinson announced that the Secret Service has "made a mockery" of federal discovery rules, court orders, and the evidentiary hearing held on this matter. In upholding the Magistrate Judge’s imposition of an evidentiary sanction, the District Judge noted that the Magistrate Judge had found the Secret Service’s “behavior regarding discovery obligations consistently over time to range from being lackluster to being recalcitrant and obdurate” and recounted that “the magistrate judge has had to enter against the defendant no fewer than nine orders compelling the defendant to provide discovery” before concluding that the Magistrate Judge’s conclusion that “enough is enough” was justified.