A judge ruled the Secret Service "made a mockery" of the law to thwart black agents accusing it of bias and penalized the agency by barring it from introducing rebuttal evidence during the trial of their lawsuit.
The severe and rarely invoked penalty — just short of awarding victory to the agents — is the latest twist in an eight-year-old case that alleges the Secret Service denied minority agents promotion because of their race.
In a scalding 51-page opinion issued late Wednesday, U.S. Magistrate Judge Deborah A. Robinson concluded the Secret Service refused to provide documents requested by the plaintiffs during the discovery phase of the trial, ignored judicial rules and defied court orders so extensively that it damaged the agents' ability to present their case.
Robinson concluded that "no reasonable search for the documents responsive to plaintiff's requests ... was ever conducted" despite federal rules requiring it, 9 separate court orders by Robinson demanding it and three previous penalties imposed by Robinson. The agency's "substantial and prejudicial" stubbornness "virtually mandates a finding that defendant's noncompliance ... was willful," Robinson wrote.
The U.S. Attorney's office plans to appeal Robinson's decision, Secret Service spokesman Ed Donovan said, adding, "It's far from over."
The sanction does not mean the agency has been found guilty of discrimination, though government lawyers argued it was tantamount to that because it does prevent the agency from presenting evidence that particular promotion decisions were made for nondiscriminatory reasons and from presenting statistical evidence to rebut claims that bias affected an entire class of employees.
Lawyers for agents must still present evidence of discrimination at trial.
A discriminatory culture?
The lawsuit was filed in 2000. The plaintiffs say white colleagues and supervisors regularly use a racial epithet to refer to criminal suspects and black leaders of other countries. The lawsuit claims the Secret Service has always had a discriminatory culture — a claim the agency denies.
The agency not only has delayed providing evidence but also destroyed some evidence, said Melissa Henke, an attorney with Hogan & Hartson who has represented the agents without charge.
Donovan said the Secret Service paid an outside auditor more than $2 million to search 20 million e-mails and other electronic documents dating back 16 years, has turned over 22 million documents to the plaintiffs, reached out to nearly 300 former employees to see if they have documents and given 90 depositions. He added that agency statistics show black agents get promoted faster than other agents.
The Secret Service investigates counterfeiting cases and protects presidents, vice presidents, their family members and other dignitaries. The agency, previously part of the Treasury Department, became part of the Homeland Security Department in 2002.