Perez v. FBI

• Citation: 707 F. Supp. 891
• Decision Date: 07 February 1989
• Docket Number: No. EP-87-CA-10.,EP-87-CA-10.
• Parties: Bernardo M. PEREZ v. FEDERAL BUREAU OF INVESTIGATION et al.
• Court: U.S. District Court — Western District of Texas

707 F. Supp. 891

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.

September 30, 1988.

On Issues Relative to Grand Jury Subpoena December 2, 1988.

As Amended December 8, 1988.

On Motion for Protective Order February 7, 1989.

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Antonio V. Silva, Silva, Silva & Herrera, P.C., Jose Angel Silva, Jr., El Paso, Tex., Hugo A. Rodriguez, Behlers & Davis, Albuquerque, N.M., for plaintiff.

Richard Greenberg, 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. Attys. Office, El Paso, Tex., Lainie J. Simon, Civ. Branch, Alan L. Ferber, Trial Atty., Anne M. Gulyassy, Asst. Director, Federal Programs Branch, Civ. Div., U.S. Dept. of Justice, Felix A. Baxter, Steven L. Zelinger, Dept. of Justice, Civ. Div., Washington, D.C., for F.B.I., et al.

FINDINGS OF FACT AND CONCLUSIONS OF LAW BIFURCATED TRIAL: LIABILITY STAGE

BUNTON, Chief Judge.

BEFORE THIS COURT on August 15, 1988 came for trial the Plaintiff class consisting of 310 persons, 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 has violated Title VII and a "recovery" stage to determine the eligibility of individual class members for compensatory relief.

DOES TITLE VII APPLY TO THE FBI?

The Federal Bureau of Investigation is the arm of the United States Department of Justice that is responsible for investigating violations of Federal law.² Within its purview are foreign counterintelligence, terrorism, organized crime, drug interdiction (together with the Drug Enforcement administration), commercial currency crimes, and abductions. Among the FBI employees are approximately 9400 Special Agents; all of whom are members of the "excepted service."³ However, the Congress has made clear that employees of executive branch agencies are subject to the requirements of Title VII:

"All personnel actions affecting employees or applicants for employment ... in executive agencies ... (including employees and applicants for employment who are paid from non-appropriated funds) ..., shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-16(a).⁴

Accordingly, the FBI is subject to the full reach of Title VII. Congress has demonstrated no intent to preclude judicial review of constitutional claims brought against the Bureau.⁵ Elsewhere within Title VII of the Civil Rights Act Congress gives more detail as to what actions may be considered among "all personnel actions" of Section 717. Section 703 of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2, provides:

"(a) It shall be an unlawful employment practice for an employer —

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

With the exception of hiring practices, the Plaintiffs brought to this Court allegations which relate to every other element under the heading of unlawful employment practices; compensation, terms, conditions, or privileges of employment. In addition, Plaintiffs point to practices which limit, segregate, or classify employees which tend to deprive them of employment opportunities or otherwise adversely affect them.

The Court exercised control over the discovery process attempting to balance the Plaintiff's classmember's need for access to proof in support of their claims against the significant needs of the FBI and Justice Department for confidentiality and the protection of its methods, sources, and mission.⁶

PLAINTIFF'S ALLEGATIONS

The Members of the Plaintiff Class (hereafter, "Plaintiffs") allege that practices of the FBI result in the selection of non-Hispanic agents for promotion, transfer, and other employment privileges in a manner which results in significant differences as compared to Hispanic agents. In particular, the plaintiff class alleges that impermissible considerations of ethnic heritage disfavor Hispanics for promotion, distribute temporary and permanent hardship assignments in a discriminatory manner, and apply disciplinary actions in unjustified proportions on Hispanic agents. Plaintiffs attribute the discriminatory effects to "disparate treatment" and "disparate impact" discrimination; that is, intentionally discriminatory acts and facially neutral policies and procedures of the Bureau which have adverse impact on members of a protected group. Anticipating the Defendant's defense, the Plaintiffs allege that the policies and practices of the Bureau are not justified by the business necessity defense. They further say that any proffered legitimate reason is but a pretext for impermissible considerations.

The Plaintiffs point to a promotion system which contains excessive subjective elements without procedures to evaluate the decisions for compliance with EEO guidelines. Similarly, the Plaintiffs claim that other employment decisions such as transfers, temporary duty assignments and discipline are excessively subjective and thereby capricious.

Plaintiffs also complain that members of the Bureau engage in "religious discrimination" against Hispanic agents for certain events not directly related to this action. In particular, the Plaintiffs allege that agents that are members of the Church of Latter Day Saints, colloquially termed "Mormons", engage in religious discrimination.

Further, at the time of trial, Plaintiffs complained of incidents of retaliation visited upon members of the class for their activities in support of the class.

Named Plaintiff Bernardo Perez, as an individual, claims that he suffered discriminatory treatment on the basis of his religious affiliation and national origin. In addition, he alleges that he was subjected to retaliation by the FBI for bringing a grievance under the Bureau Equal Employment Opportunity process.

DEFENDANT'S CLAIMS

The Defendants deny the Plaintiff's claims and state that all assignments, promotions, transfers and failures to promote members of the Plaintiff Class were justified by business necessity in accordance with the mission of the FBI as a law enforcement entity. Defendants deny that any job related action suffered by Plaintiffs related to this litigation constituted reprisal or retaliation; rather, that disciplinary actions taken against Plaintiffs were motivated entirely by job-related factors.

Both Plaintiffs and Defendants agree that hiring practices of the FBI are not in issue in this action; that is, if the FBI violated Title VII of the civil rights act, its hiring practice would not be a direct legal cause of the violation. Thus, a person who claims that he was not hired by the FBI because of national origin discrimination could not be a member of the class in this suit.

TWO PATHS CONVERGE

The Supreme Court distinguished two kinds of discrimination for the purpose of analyzing the evidentiary standards which trial courts are to apply to determine whether employment practices result in prohibited distinctions which harm employees. In "disparate treatment" cases, the plaintiff must prove that the defendant had a discriminatory intent or motive. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 8, 101 S.Ct. 1089, 1094-95, n. 8, 67 L.Ed.2d 207 (1981). The evidentiary burden shifts between the employee and the employer to determine whether, if discriminatory intent has been implicated, the employer can demonstrate that a legitimate nondiscriminatory reason motivated the adverse employment decision. The Supreme Court made clear at the close of its latest term that the burden shifting pattern is "only to aid courts and litigants in arranging the presentation of evidence: `The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff.'" Watson v. Fort Worth Bank & Trust, ___ U.S. ___, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988), citing Texas Department of Community Affairs, and United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

In a second group of cases, the Supreme Court and Circuit Appellate Courts found a violation of Title VII without proof of "intentional" discrimination. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In these cases, facially neutral employment practices may be held to adversely impact on protected groups. The Court need not find that the employment practices were adopted by the employer with a discriminatory intent. These cases have been called "disparate impact" cases wherein the trial court is often treated to dueling experts who demonstrate statistical disparities rather than specific incidents of discrimination. In these cases, the distinction between "positive" and "normative" studies blurs; statisticians put on the hats of philosophers, economists, psychologists, and sociologists as they justify the underlying assumptions of their economic models, and their choice of...