By Darryl Fears
Washington Post Staff Writer
Thursday, May 29, 2008

After causing delays that have stalled a racial discrimination case for years, the Secret Service could be hit with a "default" judgment at a U.S. District Court hearing today in favor of the black agents who brought the suit.

The judge presiding over the case, Deborah A. Robinson, has already sanctioned the agency three times for dragging its feet in handing over racially charged e-mails shared by white Secret Service supervisors and for failing to search for documents as ordered by the court. She has also verbally reprimanded government lawyers after they revealed that a paralegal may have burned some documents that were ordered by the court.

Robinson could use stronger sanctions to punish the Secret Service at today's hearing, lawyers said. She could issue a summary judgment on behalf of the plaintiffs that would probably cost taxpayers millions of dollars, she could limit the amount of evidence the agency could use to defend itself against the allegations -- that supervisors routinely harassed black agents and refused to promote them to management positions -- or she could grant a request by the plaintiffs to try their case without any interference from the Secret Service's lawyers. The black agents sued the agency in 2000.

"In all the years I have been involved in big civil litigation," said Melissa N. Henke, one of the plaintiffs' attorneys, "I have never seen such egregious conduct by a party in the discovery phase of a case . . . to avoid providing the evidence that the other side is entitled to."

Robinson has been critical of some of the Secret Service's behavior, according to transcripts. During one court session, a government lawyer revealed that a paralegal had placed documents related to the case in a "burn bag" to be destroyed.

The lawyer was not certain which documents were burned.

"Isn't that something that she should have been asked?" Robinson asked. ". . . You have to be concerned that the witness . . . you offered as the person coordinating the production of documents pursuant to a court order, unbeknownst to you, burned the originals."

Eric Zahren, a spokesman for the Secret Service, said the plaintiffs requested an extraordinary amount of information, taxing the agency's ability to produce it.

"We have turned over 300,000 paper documents and 20 million electronic documents that span a 16-year period," Zahren said. "You have to think about what's a reasonable demand upon the agency. In very simple terms, they have asked us for a ridiculous thing, and the magistrate has asked us to get it back in a ridiculous period of time."

Secret Service supervisors took two years to produce e-mails that were due in the summer of 2006. And at one point in the proceedings, a Secret Service inspector revealed that he had not searched for relevant documents as the court had ordered, but simply tagged information as he came across it.

The e-mails, which were widely circulated inside the agency, were revealed earlier this year. They included jokes about black men's genitalia, a missile shooting down a plane bearing the Rev. Jesse Jackson and a "Harlem spelling bee" in which black people completed sentences using street slang and poor English. Most of the e-mails are too crude to be detailed in The Washington Post.

Black agents claim that white supervisors who distributed and read the e-mails created a "glass ceiling" that stunted their advancement. Ten agents are listed as representatives of a group of up to 250 plaintiffs, Henke said.

Agent Reginald Moore said he requested a promotion to management more than 200 times as white agents with less experience leaped ahead of him. Moore, who has worked at the Secret Service for nearly a quarter-century, said he finally advanced in 2002, after the lawsuit was filed.

Former agent Cheryl Tyler said she was never promoted to management despite decades of solid evaluations. She left the agency in 2003, joined the Transportation Security Administration at the Department of Homeland Security, and was immediately promoted to a management position. She retired in December.

Moore and Tyler said they worked with white agents who participated in the infamous "Good Ol' Boy Roundup," a whites-only party that took place annually in the 1980s and 1990s in eastern Tennessee. It included, at various times, law enforcement officers wearing Ku Klux Klan hoods, an effigy of O.J. Simpson hanging by the neck and T-shirts with racist images.

"Agents who were known participants in the Good Ol' Boy Roundup were promoted," Moore said. "Their argument constantly changed as to why I wasn't promoted."

Attorneys for the Secret Service said that Moore sent e-mails that could be viewed as offensive, including one making fun of an obese black woman. In a response, Moore did not dispute that he sent the e-mails, but said the filing by the Secret Service "does not change the fact that there is overwhelming evidence that racial discrimination at the agency" that kept black agents from being promoted.

In April, a black agent discovered a noose at the Secret Service training complex in Beltsville. During an investigation, the agency debated whether the rope was a traditional noose. Eventually, a white instructor was placed on leave after admitting to hanging the rope.

Zahren defended the agency, saying: "We're not perfect. We make mistakes like everyone else." He said African Americans have done "extremely well" in the service and offered statistics showing that black agents advance faster than white agents.

The plaintiffs' lawyers have disputed the figures.