Moore v. Summers
| Decision Date | 08 September 2000 |
| Docket Number | No. CIV.A. 00-0953(RWR).,CIV.A. 00-0953(RWR). |
| Citation | 113 F.Supp.2d 5 |
| Parties | Reginald G. MOORE, et al., Plaintiffs, v. Lawrence SUMMERS, Secretary U.S. Department of the Treasury, Defendant. |
| Court | U.S. District Court — District of Columbia |
John Peter Relman, Christine R. Ladd, Relman & Associates, David James Shaffer, Karen Rapaport Esser, Ron Schmidt, Susan Tahernia, Thelen, Reid & Priest, LLP, Washington, D.C., for Plaintiff.
Brian J. Sonfield, United States Attorney's Office, Washington, D.C., for Defendant.
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, plaintiffs 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.
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.
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. Inj. ( ) 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.)
The Second-Level evaluation begins in October. It is based on the following three elements: (1) two written qualifications statements drafted by the candidate regarding "core competencies"; (2) the comments that the candidate's supervisor made in the First-Level evaluation; (3) the Peer Panel evaluation results. The written statements regarding core competencies are broken down into "leadership" and "influence and decision making." The evaluators, a panel of representatives from the office of each of the Secret Service's Assistant Directors, then compare the candidate's written statements to another list of benchmark skills. These benchmarks include responding to and assuming command during emergency situations, coordinating large-scale efforts with other organizations, and supervising other agents. After comparing the candidate's written statements with the benchmarks, the panel rates the candidate on a scale of one to seven in each of the two areas. (Burgess Decl. at ¶ 9; Moore Decl. at ¶ 17.)
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.)
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 ...
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