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Thursday, January 10, 2008

Judge postpones ruling on Secret Service sanctions, hears testimony

By Rebecca Carr | Thursday, January 10, 2008, 06:40 PM

U.S. Magistrate Judge Deborah A. Robinson Thursday postponed a decision on whether to issue additional sanctions against the U.S. Secret Service for failing to turn over documents and providing “uncredible” testimony in a long-running lawsuit alleging that African American agents have been discriminated against over the past two decades.

robinson.jpgRobinson, who has already sanctioned the service three times and issued 22 rulings against the government during the discovery process, said she did not want to rush her decision because of the serious nature of the case.

At issue is whether African American agents were forced to work in a “racially hostile” environment, one where they allegedly were forced to endure the use of the word “nigger” and allegedly were routinely bypassed for promotions by white agents who scored lower on hiring exams.

But the merits of the 8-year-old case have never been heard in large part because of delays in obtaining key documents about promotions and hiring, according to interviews with the plaintiffs lawyers and Robinson’s own assessment given in December.

A team of Justice Department lawyers, representing the service, filed a motion Thursday asking U.S. District Judge Richard Roberts, the judge overseeing the case, to reverse Robinson’s earlier sanction.

The government alleges that Robinson’s most recent sanction was “erroneous and contrary to law to the extent that it requires defendant to produce documents that are not within his possession, custody or control.” Roberts assigned Robinson to oversee the discovery process.

Robinson did not address the government’s motion. She set a hearing for January 18 to give the government an opportunity to cross-examine Arthur L. Kuhn, a Secret Service inspector, who conducted a search for all paper records maintained by current employees.

Under questioning today by E. Desmond Hogan, part of the legal team at Hogan & Hartson and Relman & Dane representing the plaintiffs for free, Kuhn admitted that he did not know what documents the plaintiffs wanted prior to asking the service’s highest ranking agents to respond to a records search—meaning he did not ask for the specific records sought by the plaintiffs.

Kuhn said he based his inquiry on what the Secret Service’s legal counsel told him to ask. And he testified that he did not ask a whole subset of officials with knowledge about promotions-deputy special agents in charge or assistant special agents in charge-to look for responsive documents even though they are often the ones who make recommendations on promotions.

In addition, Kuhn testified that there was regular e-mail correspondence about hiring and promotions. Yet to date, the plaintiffs have yet to receive those e-mails. He told the court he did not know how the officials conducted their search or even if they had searched offices where they used to work.

Kuhn also testified that one of the documents submitted to the court was not the same document he gave to counsel to submit.

Eric P. Zahren, special agent in charge of the office of government and public affairs, issued an e-mail Thursday night contesting the heart of the discrimination case.

In preparation for the case, Zahren said the Justice Department hired an independent statistical expert named Paul F. White, Ph.D. to analyze Secret Service promotion data.

The report was not provided to Cox Newspapers for review. But Zahren said it shows that it takes less time for African American agents to be promoted than for non-African American agents.

“Most importantly, in layman’s terms, the report fails to find a single year between 1991 and 2005 when African-American special agents were discriminated against in seeking promotion to the GS-14 or the GS-15 level,” Zahren wrote.

“The Secret Service has not and will not tolerate discrimination of any kind,” Zahren wrote. “We are extremely proud of the contributions of our diverse work force and we will continue to promote the most qualified people.”

But nearly 60 African American service agents have signed sworn declarations stating otherwise.

Lawyers for the plaintiffs also hired a statistical expert to analyze promotion trends at the agency.

“It is in stark contrast to defendants statements,” said Jennifer I. Klar, one of the attorneys representing the plaintiffs. “Our expert found over a period of a decade that the Secret Service promotions process had an adverse impact on African American agents.”

In addition, Klar said, the government’s statistical analysis is “misleading and has major methodological flaws.”

“For example, the government expert’s time-to-promotion analysis excludes African American agents like plaintiff Cheryl L. Tyler who resigned without being promoted because of race discrimination and only considers agents who were able to be promoted despite the discriminatory practices,” Klar said.

Reginald Moore, the lead plaintiff in the lawsuit, was promoted after he filed his lawsuit, Klar noted.

The delays in the case have frustrated the plaintiffs who say a “good ol’ boy network” prevails at the agency.

Tyler, a former agent, said the Atlanta office was known as the “chocolate office” during the 1980s because 8 out of 75 agents were black.

Tyler shared an office with a white agent who called his child “dumb nigger” in her presence, according to her sworn statement.

And white agents in the office openly talked about attending an annual whites-only “Good Ol’ Boy Round Up” where law enforcement agents retreated to a rural spot in Tennessee to watch mock lynchings of blacks while eating their barbecue, Tyler said.

“Racism is embedded in our society and it’s embedded in one of the most highly respected agencies in the world,” said Tyler, who ended up leaving the service because of the discrimination. “You don’t do that to the people who will give their life to protect the leader of the free world.”

Zahern contends the delays in the case are caused by “plaintiffs’ numerous requests for vast additional discovery.”

The Secret Service has provided over 300,000 documents in response to numerous requests from plaintiffs’ attorneys and has produced numerous current and former employees for depositions, Zahern said.

But those documents have been unresponsive, according to plaintiffs attorneys.

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