Perez v. FBI

• Decision Date: 05 May 1989
• Docket Number: No. EP-87-CA-10.,EP-87-CA-10.
• Citation: 714 F. Supp. 1414
• Parties: Bernardo M. PEREZ v. FEDERAL BUREAU OF INVESTIGATION, et al.
• Court: U.S. District Court — Western District of Texas

714 F. Supp. 1414

Bernardo M. PEREZ v. FEDERAL BUREAU OF INVESTIGATION, et al.

No. EP-87-CA-10.

United States District Court, W.D. Texas, El Paso Division.

May 5, 1989.

Antonio V. Silva and Jose Angel Silva, Jr., El Paso, Tex., and Hugo A. Rodriguez, Coffey, Aragon, Martin & Burlington, P.A., Miami, Fla., for Bernard M. Perez.

Richard Greenberg and Herbert E. Forrest, Dept. of Justice, Federal Programs Branch, Civil Div., Joseph R. Davis, Legal Counsel Div., F.B.I., Washington, D.C., Mollie S. Crosby, U.S. Attorney's Office, El Paso, Tex., Lainie J. Simon, Civil Branch, Alan L. Ferber, Trial Atty., and Anne M. Gulyassy, Asst. Director, no Pro hac vice, Federal Programs Branch, Civil Div., U.S. Dept. of Justice, Felix A. Baxter and Steven L. Zelinger, no Pro hac vice, Dept. of Justice, Civil Div., Washington, D.C., for F.B.I., Edwin Meese, Atty. Gen., and William S. Sessions and William H. Webster, Directors, F.B.I.

Kathleen C. Anderson, Law Offices of Kathleen C. Anderson, and Richard P. Mesa, El Paso, Tex., for Thomas M. Kuker and Thomas A. Hughes, intervenors.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BIFURCATED TRIAL: DAMAGES STAGE

BUNTON, Chief Judge.

BEFORE THIS COURT came on for trial the Plaintiff class consisting of present or one-time Special Agents of the Federal Bureau of Investigation, alleging that the FBI violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2 discriminating against Hispanic agents on the basis of their National Origin.¹

On Motion of the parties, the litigation was bifurcated into a "liability" stage to determine whether the Defendant violated Title VII and a "recovery" stage to determine appropriate remedies under Title VII of the Civil Rights Act. In the recovery portion, the evidence related to two issues: (1) what, if any, institutional reforms would correct the patterns and practices the Court found which were violative of Title VII; and (2) whether individual class members were eligible for compensatory relief?

In summary, at the conclusion of the trial in 1988, the Court determined that the Plaintiff class prevailed on its allegation that there was a pattern and practice of discrimination relating to conditions of employment and promotions within the Bureau; the EEO program in the Bureau is in need of significant improvement; and named Plaintiff Perez was the victim of retaliation for protected activities related to this litigation and his EEO complaint.² By a separate opinion entered December 8, 1988, the Court found an additional incident of retaliation against Plaintiff Perez relating to the procurement of a Grand Jury subpoena and the use of Grand Jury materials in an administrative discipline procedure.

Prior to the commencement of the recovery portion of the trial, the Court detailed to the parties the matters within the purview of the Court. Inter alia, the Court stated that the parties should present evidence relevant to the development of appropriate equitable remedies. Section 706(g) of Title VII, 42 U.S.C. Sec. 2000e-5, does not authorize awards of punitive damages or compensatory damages. Awards of back pay, front pay, remedial seniority, injunctions and declaratory relief are among the equitable tools available to this Court to fashion relief.³ The Court welcomed testimony relating to FBI programs which are responsive to the findings of the Court on September 30, 1988.⁴ The parties were invited to present evidence by way of testimony or documents.⁵ Regarding back and front pay, the Court reminded the parties that on the basis of the findings in the liability portion of the trial, the burden would be on the Plaintiffs to demonstrate the appropriateness of an award of monetary relief.⁶ In addition, prior to the recovery stage trial, the Court invited testimony relevant to the fashioning of appropriate remedies for the retaliation against Bernardo Perez found by this Court.

For the reasons set out below, the Court finds that certain institutional reforms are appropriate and by mandatory injunction will direct the implementation of the Court's findings. `Rightful place seniority' is an appropriate remedy for members of Plaintiff's class who achieved the rank of GS 13 (with one year experience) or above by the date of this opinion. The Court will detail procedures for the accomplishment of individual hearings for Plaintiff class members to determine their entitlement to this relief in an appendix to this opinion.

To implement the awards, the Court will appoint three persons as Special Masters, hereinafter called "Panel," set a limitations period for the accomplishment of hearings, and provide a several stage appeal process: first to the Director of the FBI, second to United States Magistrate Janet Reusch, Western District of Texas, El Paso Division, hereinafter called "Magistrate," and third to this Court.⁷ No back pay monetary remedy will be made to members of the Plaintiff class. However, should the finding of the Panel require a rightful place promotion, within 45 days from the date of the Panel finding to the date the Special Agent actually attains the rightful place position, The Special Agent will be compensated at the rate of the correlative promotional position. This Court will fashion a remedy for Bernardo Perez. Finally, by separate opinion, the Court will fashion an award of attorney's fees for counsel for the Plaintiff class.

Whether Promotion Quotas are Appropriate?

Plaintiffs argued that pursuant to Section 706(g) of Title VII, injunctive relief should take the form of so called "affirmative action" such as preferential treatment for members of the Hispanic protected classification. On occasion, the law authorizes the use of preferential racial, ethnic or other minority classifications for specific or identifiable past discriminatory practices. Regents of University of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). However, unless there are specific findings of past discrimination, based upon racial, ethnic or other minority group classifications, preferential remedies on a class wide basis are generally considered inappropriate. Regents of University of Cal. v. Bakke, Id.; Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957.

In this cause, the Government resists the imposition of quotas or a system of preferential promotions.⁸ Three arguments are advanced by the Bureau: (1) Hispanics are not the victims of discrimination; (2) the "needs of the Bureau" require the appointment of the most qualified person, without respect to membership in a protected class, to fill supervisory positions; and (3) this Court did not find classwide incidents of promotional discrimination. The Court's findings demonstrate that in fact the Bureau does not have in place the means to properly determine the most qualified person for promotion. Consequently, members of the Plaintiff class have been prevented from gaining the professional experience and training that non-Hispanics have been afforded. The Court admits that this finding does not translate directly into a classwide "failure to promote" finding. Further, the imposition of quotas or preferential promotion are drastic remedies which should be Ordered only upon a showing that the discriminating employer has resisted less intrusive reforms.

The circumstances before this Court are unique both with regard to the nature of the employer and the nature of the violation of Title VII identified by this Court. Without reaching the legal issue of whether Title VII permits this Court to set quotas, the Court finds that such a remedy would unduly intrude on the power of the Executive to implement the mission of the FBI. This conclusion in no way detracts from the firm conviction of this Court that the Bureau violated Title VII of the Civil Rights Act. However, the Court is of the opinion that improvements can be accomplished by other means.

Similarly, the Court does not find that a classwide award of seniority is appropriate. The policy behind section 706(g) of Title VII is to provide make-whole relief only to persons who have been the actual victims of discrimination. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). Mere membership in the disadvantaged class is insufficient to warrant a seniority award. The classmembers must demonstrate that the discriminatory practice had an impact on them. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) on remand 659 F.2d 690 (5th Cir. 1981). Even where a classmember demonstrates entitlement to rightful place seniority, the Court will not require a non-minority employee displaced to make room for the Special Agent. Accordingly, though seniority, in principle, is an appropriate remedy for some members of Plaintiff class, it will not be awarded to every member of the class.

Whether Compensation For Extra Duty Can Be Awarded?

This Court found discrimination in the conditions of employment which had a significant effect on promotional opportunities for members of Plaintiff Class in violation of Title VII. This is a two-pronged finding. Without waiving their objection to this Court's findings, Defendant sharply contests whether a compensation differential is the appropriate remedy for the disparate conditions of employment found by the Court. Defendant argues that persons outside of the protected class are required to perform extra duties, harder duties, and unrecognized duties, for which they do not receive extra compensation. The Court agrees in principle that Bureau Special Agents do not receive compensation on any basis other than their promotional grade. The evidence demonstrated that the Bureau does not utilize pay differentials within grades to compensate persons who perform more work or even more valuable work than their counterparts.⁹ Nonetheless, the evidence firmly establishes that...