More than a decade ago, a group of U.S. Secret Service agents sued over allegations that agency officials denied promotions on the basis of race. Yesterday, a judge in Washington approved a class of 120 current and former agents, setting up the potential for a trial that would explore claims that discrimination has persisted at the agency.
The agents, who filed suit in 2000 in Washington federal district court, had asked three times before for class certification. In the latest round, lawyers for the plaintiffs narrowed claims to certain groups of African American agents whose promotion bids, for specific government service levels, were denied in the late 1990s and early 2000s.
Judge Richard Roberts of U.S. District for the District of Columbia concluded that the plaintiffs, through anecdotal evidence and an expert's statistical analysis, established sufficient commonality to allow the case to proceed as a class action.
The "interests of efficiency and uniformity support a finding that a class action is a superior method of adjudicating the plaintiffs’ claims," Roberts said in the ruling, published Tuesday.
Washington-based Hogan Lovells partner E. Desmond Hogan, whom Roberts named co-counsel for the class, said centralized decision-making in the promotion process at the Secret Service supported class certification.
Hogan Lovells, which is providing legal services pro bono, represents the class with a team from the civil rights firm Relman, Dane & Colfax.
"This case implicates a significant glass ceiling problem the Secret Service has," said Hogan, who practices in class action and commercial litigation. "A good-old-boy culture has unfortunately permeated the leadership of the Secret Service. It's time for the Secret Service to deal with the history of discrimination."
The plaintiffs' expert, Dr. Charles Mann, determined the promotion process had an adverse impact on African Americans. DOJ lawyers urged Roberts to exclude the testimony as unreliable and irrelevant.
In court papers, the government's legal team, including assistant U.S. attorney Marina Braswell, said the plaintiffs have no evidence of a policy of discrimination. "[T]o the contrary, the Secret Service's stated policy forbids discrimination," Braswell wrote.
The government argued that the U.S. Supreme Court decision in 2011 in Wal-Mart v. Dukes foreclosed class certification. In that case, the largest private discrimination case in history, the high court ruled against class certification based on disharmony among would-be class members.
DOJ lawyers said the plaintiffs "are complaining about thousands of separate promotion-related determinations made by hundreds of different participants, from 44 states, 18 foreign countries, and the District of Columbia, in a promotion process that allowed for considerable discretion, with absolutely no 'glue' holding all of these decisions together, as required by Wal-Mart."
The government also said in papers that "unrebutted evidence" in the case shows African American agents’ promotion scores were similar to non-black agents and that blacks received promotions faster—earlier in their careers—than their counterparts in the agency.
"This evidence conclusively refutes plaintiffs' overarching claim that the Secret Service has refused to eliminate racism from the fabric of its promotion process," DOJ lawyers said.
One plaintiff unsuccessfully bid on more than 180 positions from 1999 to 2002, the judge's ruling noted. The agent said he was eventually promoted only after a transfer to the Chicago office, filing an employment complaint and a lawsuit. Another plaintiff alleges an agency official told him he must bid outside of Washington, D.C. for a promotion.
Federal law caps compensatory damages at $300,000 per plaintiff, not including potential back-pay, Hogan said. "Our clients are most interested in getting in place a fair and equitable promotion system," he said. "The number one thing the class wants is a system that solves the problem the Secret Service has so future agents don’t face the same glass ceiling."
Representative Bennie Thompson (D-Miss.), ranking member of the House Committee on Homeland Security, said in a letter this month to Mark Sullivan, the outgoing Secret Service director, that his successor should "make every effort to bring about an amicable resolution" to the discrimination case.
"[T]his case was filed over a decade ago and continues to linger in federal court," Thompson wrote.