Segar v. Ashcroft ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HENRY SEGAR, et al.,
Plaintiffs,
v. Civ. Action No. 77-0081 (EGS)
WILLIAM P. BARR,
as U.S. Attorney General,
Defendant.
MEMORANDUM OPINION
Several decades ago this Court concluded that the Drug
Enforcement Agency (“DEA”) discriminated against African-
American special agents in several areas of employment
including, but not limited to, its promotion practices. The
Court subsequently enjoined the DEA from discriminating against
these agents, and, among other things, required the DEA to
“insure that [its promotion practices] as operated have neither
a disparate impact on Black agents nor effectuate disparate
treatment of Black agents.” Segar v. Smith, Civ. Action No. 77-
civ-81, 1982 WL 214 at *1 (D.D.C. Feb. 17, 1982). Over the
course of several years, the parties have negotiated a series of
stipulations related to remedial measures in an attempt to
comply with the Court’s order.
Pending before the Court is plaintiffs’ motion for
compliance with this Court’s order for the DEA to craft a
nondiscriminatory promotion practice. After the parties narrowed
their disagreement to a few remaining issues, the motion was
referred to Magistrate Judge John M. Facciola for a Report and
Recommendation (“R&R”). The R&R recommends several remedial
measures designed to ensure that the DEA is in compliance with
the Court’s Order to cease discrimination in its promotion
practices. See R&R, ECF No. 395.
Defendant has objected to several of those remedial
measures. Upon consideration of the R&R, defendant’s objections,
plaintiffs’ response to those objections, and the relevant law,
the Court adopts in part the R&R.
I. Background
The Court will not restate the full factual background of
this case, which is set forth in the R&R and in the Court’s
opinion in Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981).
See R&R, ECF No. 395 at 1–5. 1 By way of general overview, this
case concerns promotion policies by the DEA that were found to
be discriminatory against African-American special agents. See
Civiletti, 508 F. Supp. at 693–95. A class of these agents,
alleging violations of Title VII, was certified by this Court.
Id. After a two-week trial, the Court concluded that the DEA
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF header page number, not the page number
of the filed document.
2
discriminated against the class across a range of employment
practices. Id. at 712–15. Relevant to this case, the Court found
that the DEA discriminated against African-American agents with
respect to promotions. Id. at 714–15. The Court enjoined the DEA
from engaging in any discriminatory practices in its promotions
and required the DEA to implement nondiscriminatory promotion
systems from promotion Grades 12 and above. 2 Id.
With the goal of complying with the Court’s order, the
parties agreed to create “the Working Group,” a panel of
professionals charged with developing and recommending promotion
systems in line with that order. R&R, ECF No. 395 at 2. The
Working Group was to be comprised of three members: (1) a
representative from the Office of Personnel Management (“OPM”);
(2) a private contractor retained by OPM; and (3) an expert
selected by plaintiffs. Id. In addition to establishing the
Working Group, the parties also submitted proposals for further
relief. Id.
After considering the parties’ proposals, the Court ruled
that the DEA needed to develop and implement effective,
nondiscriminatory promotion systems which “insure that the new
systems neither have a disparate impact on black agents nor
effectuate disparate treatment of black agents.” Segar v. Smith,
2 Promotions from GS-7 to GS-9 and from GS-9 to GS-11 were
effectively automatic. See Civiletti, 508 F. Supp. at 701.
3
No. 77-civ-81, 1982 WL 214 at *4 (D.D.C. Feb. 17, 1982).
Accordingly, the Court ordered the creation of the Equal
Employment Opportunity Monitoring Committee (EEOMC), a group
tasked with monitoring the DEA’s compliance with the Court’s
Order. Id. at *8–9.
The Court also held that plaintiffs claiming harm for
discriminatory promotion practices at the GS 7-9 levels were
entitled to individual hearings to determine backpay. Id. at *9.
For agents at Grade 11 and above, however, the Court held that
class-wide relief was the appropriate award. Id. at *2–5. The
Court of Appeals for the District of Columbia (“D.C. Circuit”)
affirmed the Court’s liability determination and the award for
class-wide backpay, but vacated portions of the order that are
not relevant to this case. Segar v. Smith, 738 F.2d 1249 (D.C.
Cir. 1984).
Relevant to this motion, the DEA later implemented the
Special Agent Promotion Process (“SAPP”), which was a new system
for promotions for Grade 14 and 15 agents. Opinion dated Sep.
27, 1999 (“Sept. 27, 1999 Opinion”), ECF No. 35 at 2 (hard
copy). Under SAPP, the agents who score the highest on the SAPP
evaluation system were included on a best qualified list (“BQ
list”). Id. Agents on the BQ list were all considered equally as
qualified for advancement to the vacant position. Id. The
Special Agent in Charge (“SAC”) for the division with the
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vacancy would submit a short list of recommended employees. Id.
The Career Board, aided with these short lists, then made the
final determination about who was selected for a vacancy. Id.
There was a “very high correlation between SAC short list
recommendations and Career Board selections.” Id. at 7.
Plaintiffs filed a motion for compliance with the Court’s
Order arguing that use of the SAC short list was a violation of
Title VII because it had a disparate impact on African-American
special agents. Id. at 1–4. The Court agreed. The Court reasoned
that although the SAPP program as a whole did not produce a
significant disparity between promotions amongst African-
American agents and other agents, the evidence showed that the
SAC short list method had adversely affected promotion
opportunities for African-American agents. Id. at 6–22. Because
these agents were discriminated against because of their race,
there was a violation of the Title VII and the Court’s Order,
regardless of whether the bottom-line number of employees
receiving promotions did not show the disparate impact. Id. at
6–7, 22. 3 Accordingly, the Court enjoined the DEA from use of the
3 Although African-American agents were underrepresented on the
short lists, the disparate impact was not always visible in
promotion numbers because “the Career Board tend[ed] to
‘overselect’ African-American agents when they appear on SAC
short lists, and also when the Career Board bypasses the SAC
short list." Sept. 27, 1999 Opinion, ECF No. 35 at 5 (hard
copy).
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SAC short list method. Id. at 22. The Court also directed the
parties to brief the issue “of fashioning individual relief” for
plaintiffs who were discriminated against by the use of the SAC
short list. Id.
The parties filed a joint stipulation recommending an
interim method of promotions for Grade 14 and 15 promotions
which the Court approved. See R&R, ECF No. 395 at 3–4. With
regard to the Grade 13 promotions, in 2004 the DEA changed the
promotion policy from a pre-2004 policy, which the Working Group
found could be validated, to a policy that the Working Group was
not aware of. Id. at 4. Accordingly, the new Grade 13 promotion
policy was not validated nor approved by the Working Group. Id.
Plaintiffs then filed the motion for compliance at issue in
this case, alleging that several of the DEA’s actions, including
the DEA’s changed policy for promotions to Grade 13, violated
the Court’s Orders. Pls.’ Mot. for Compliance, ECF No. 303 at 7.
Defendant filed a motion to vacate the motion for compliance,
arguing that it had fully complied with the Court’s orders. See
Mot. to Vacate, ECF Nos. 315 and 316. The motion was referred to
a magistrate judge for a R&R.
Magistrate Judge Facciola held a hearing in which the
parties presented expert testimony and other evidence in support
of their respective motions. Judge Facciola concluded that
plaintiffs were entitled to relief and outlined several measures
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that would bring defendant into compliance with the Court’s
order. The measures were as follows: (1) cease all promotions to
Grades 13, 14, and 15; (2) reconstitute the Working Group; (3)
appoint at third-party vendor capable of validating promotion
procedures; (4) reinstate the pre-2004 policy for promotions to
Grade 13; (5) implement a prior agreed upon procedure for
promotions to Grades 14 and 15 which was approved by the Working
Group; (6) continue oversight of DEA compliance with the Order;
(7) award relief for claims of backpay for DEA agents
discriminated against in promotions; and (8) award attorney’s
fees to plaintiffs. R&R, ECF No. 395 at 9–14.
Defendant has objected to several of those remedial
measures. Def.’s Obj., ECF No. 399. The objections are ripe for
review.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered a recommended disposition, a party
may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to,” and “may accept, reject, or
modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
Proper objections “shall specifically identify the portions of
the proposed findings and recommendations to which objection is
made and the basis for objection.” Local Civ. R. 72.3(b). “As
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numerous courts have held, objections which merely rehash an
argument presented and considered by the magistrate judge are
not ‘properly objected to’ and are therefore not entitled to de
novo review.” Shurtleff v. U.S. Envtl. Prot. Agency, 991 F.
Supp. 2d 1, 8 (D.D.C. 2013)(quoting Morgan v. Astrue, Case No.
08–2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)
(collecting cases)). Likewise, a court need not consider cursory
objections made only in a footnote. Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999).
III. Analysis
As stated above, the R&R provides several recommendations
as to what actions are necessary to bring the DEA into
compliance with the Court’s order to end discrimination in its
promotion practices. The recommendations are as follows: (1)
cease all promotions to Grades 13, 14, and 15; (2) reconstitute
the Working Group; (3) appoint a third-party vendor capable of
validating promotion procedures; (4) reinstate the pre-2004
policy for promotions to Grade 13; (5) implement a prior agreed
upon procedure for promotions to Grades 14 and 15 which was
approved by the Working Group; (6) continue oversight of DEA
compliance with the Order; (7) award relief for claims of
backpay for DEA agents discriminated against in promotions; and
(8) award attorney’s fees to plaintiffs. R&R, ECF No. 395 at 9–
14.
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Plaintiffs agree with all the recommendations of the
Magistrate Judge. The defendant initially objected to the
majority of the recommendations, but has since agreed to comply
with several of them. See generally Joint Status Report (“JSR”),
ECF No. 416. The Court will first briefly discuss the
recommendations to which the parties agree; and then turn to the
contested issues in this case.
A. Resolved Objections
The parties agree that the objections to the R&R’s
recommendation to reconstitute the Working Group and for
continued oversight of DEA compliance have been resolved. The
Court additionally finds that the parties do not have a genuine
dispute about the process for awarding attorney’s fees in this
case. The Court will briefly explain the recommendations for
these resolved objections.
1. Reconstitute the Working Group
The R&R found that the Working Group was integral to the
“final resolution of the issues that separate the parties,” and
that it was no longer functioning. R&R, ECF No. 395 at 9–10. The
parties agree with the recommendation that the Working Group
should continue to function in its intended role. To that end,
this Court granted plaintiffs’ motion for Dr. Suzanne Tsacoumis
to serve as their representative on the Working Group. See
Minute Order of October 28, 2016 (granting motion to appoint Dr.
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Tsacoumis to the Working Group). Furthermore, in August of 2017,
the parties moved to appoint Dr. Margaret Barton to the Working
Group. See ECF No. 418. In that motion, the parties explained
that with the addition of Dr. Barton, the Working Group would be
comprised of the required three members and would then be fully
operational. Id. at 2. The Court granted the motion and at this
time, to the Court’s knowledge, the Working Group is fully
functioning. In light of these developments the Court adopts the
R&R’s recommendation to reconstitute the Working Group.
2. Continued Oversight of DEA Compliance
The R&R recommends continued oversight and monitoring of
the DEA to ensure that it complies with the Court’s Order. R&R,
ECF No. 395 at 11. To that end, the R&R recommends annual
reports from the EEOC and continued monitoring of compliance
with the Court’s Order to cease discrimination. Id. Defendant
does not object to this recommendation and states that it has
continued to produce annual reports through the DEA’s EEO Office
and the EEOMC has monitored DEA’s compliance. See JSR, ECF No.
416 at 6. The Court will adopt this recommendation and order
oversight of the DEA’s compliance with the 1982 Order until a
further order of the Court.
3. Attorney’s Fees
The R&R recommends that the Court order plaintiffs to
provide a detailed request for attorney’s fees and costs
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incurred from June 1996 to present. R&R, ECF No. 395 at 13.
Defendant then will have the opportunity to either object to the
amount requested if the parties cannot reach an agreement on the
fee award. Id.
Plaintiffs believe that this recommendation remains
contested, however the parties appear to be in a heated
agreement over this issue. Defendant has not argued that fees
are impermissible in this case; rather defendant has stated that
it does not object to an award of fees if plaintiffs are viewed
as prevailing parties. JSR, ECF No. 416 at 4. Defendant’s only
limitation is that “any such fee request would need to be
evaluated for reasonableness, proportionality and for other . .
. legal and equitable considerations.” Id. Accordingly,
defendant agrees with the recommendation that plaintiffs submit
a detailed fee request. Id. Therefore the Court adopts the
recommendation and orders plaintiffs to provide to defendant a
detailed request for attorney’s fees from the period of June
1996 to present. Defendant shall thereafter file an appropriate
response.
B. Contested Objections
The remaining issues in this case are the R&R’s
recommendations to (1) implement a prior agreed upon procedure
for promotions to Grades 14 and 15 which was approved by the
Working Group; (2) appoint a third-party vendor to validate any
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proposed promotion practices; (3) determine the appropriate
method and award for backpay; and (4) to implement appropriate
enforcement mechanisms (i.e., freezing all promotions until
compliance and imposing a $10,000 per day fine). The Court
addresses the contested issues in this case in turn.
1. The Proper Policy for Promotions to Grades 14 and 15
The R&R recommends that the parties implement the agreed
upon promotion practices approved by the Working Group in 2008
(“2008 Plan”) that were found to be validated and non-
discriminatory. R&R, ECF No. 395 at 10–11. Defendant argues that
this recommendation is erroneous for two principal reasons. The
first reason is that the R&R is mistaken because the 2008 Plan
was not a plan to which the parties agreed, but rather a
counter-proposal by plaintiffs that the DEA did not accept.
Def.’s Obj., ECF No. 399 at 13–14. Defendant argues that the
appropriate promotion policy, the one that they did agree to, is
the October 2003 plan that was developed and validated by Elaine
Pulakos (“Pulakos Plan”) a third-party vendor. Id. at 14–15.
Defendant’s second argument is that the 2008 Plan cannot be
reliably shown to be the plan that the Working Group approved.
Id. at 19–20. Because the 2008 plan was never validated or
approved by the Working Group, the defendant argues, using that
plan would be a violation of the R&R’s own recommendation for a
promotion process approved by the Working Group. See R&R, ECF
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No. 395 at 10–11. Accordingly, defendant argues it would be
reversible error to adopt a recommendation based on a clearly
erroneous assessment of the evidence. Def.’s Obj., ECF No. 399
at 16.
Plaintiffs counter that an agreement on the plan is not a
requirement of the Court’s Order for defendant to adopt hiring
plans that are non-discriminatory and validated. Pls.’ Resp.,
ECF 401 at 5. Plaintiffs further note that although the Pulakos
and 2008 plans are “substantially the same with respect to the
essential elements of the promotion process,” the Pulakos Plan
fails to outline the criteria used to rate candidates for
promotions, and does not include specific time-frames or
deadlines for the different steps in the promotion process. Id.
at 6.
The Court declines to adopt the R&R’s recommendation of
implementing the 2008 Plan. The R&R refers to the 2008 Plan as
one that was agreed upon by the parties and the Working Group,
and validated, presumably by a third party, but the Court can
discern no evidence in the record that the parties came to an
agreement on the plan or that it was ever validated. Although an
agreement on the particulars of a plan is not a requirement of
the Court’s Order, the R&R’s recommendation that the defendant
implement a validated plan that the parties agreed to is a sound
one. More important to the Court’s decision is that the Court
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does not see any evidence that the 2008 plan was validated. This
Court has previously ordered that defendant instill a non-
discriminatory process that is validated, and to the extent the
parties agree on a plan that meets that requirement, the Court
is inclined to allow the implementation of that plan.
The question remains as to the appropriate plan for
promotions to Grades 14 and 15. Several factors militate towards
using the Pulakos Plan. First, the Pulakos Plan has gone through
the validation process whereas there is no evidence that the
2008 Plan has been validated. Second, the Pulakos Plan was
created with the input of plaintiffs, the Working Group, and DEA
management. Def.’s Obj., ECF No. 399 at 6. Plaintiffs concede
that the Pulakos Plan is a “significant improvement over the
status quo” and that the Pulakos Plan and 2008 Plan “are
substantially the same with respect to the essential elements of
the promotion process.” Pls.’ Resp., ECF 401 at 4, 6.
Because the Pulakos Plan is the only plan that meets the
requirements of a validated non-discriminatory plan, the Court
is inclined to order the use of that Plan with a few
modifications. There are several deficiencies in the plan such
as its lack of specific time frames and deadlines. Accordingly,
the Court orders that defendant submit a modified plan to
plaintiffs and the Working Group which includes specific time
frames and deadlines for the various steps in the promotion
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process, and rating criteria to evaluate promotion candidates’
accomplishments. 4 If plaintiffs and the Working Group concur with
the modified plan, the parties shall request implementation of
the plan for future promotion practices, subject to a decision
by the parties as to whether the plan requires further
validation.
2. Appointing a Third-Party Vendor for Validation
Defendant agrees that if changes are made to the Pulakos
Plan that would require separate validation, defendant is
agreeable to working with plaintiffs “to identify a mutually
acceptable third-party vendor to validate the plan.” JSR, ECF
No. 416 at 6. Therefore, after the modifications to the Pulakos
Plan are completed, the parties and the Working Group are
directed to meet and confer to determine if the modified plan
should be re-validated. The Court notes that the fact that the
Pulakos Plan was validated at its development does not end the
issue. As plaintiffs point out, a plan that was validated at one
point needs to be periodically reviewed to determine whether it
continues to be valid, as is customary with other validated
plans. Pls.’ Resp., ECF No. 401 at 16.
4 Defendant has already made undefined changes to the Pulakos
Plan in order to “(1) bring the plan more in line with
technological advances . . . and (2) enhance the fairness of
process through added transparency and objectivity.” JSR, ECF
No. 416 at 5. This Memorandum Opinion and accompanying Order is
not intended to supplant those modifications.
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3. Individual Relief
The R&R recommends individual relief for plaintiffs Grades
11 and below, and class-wide relief for Grades 14 and 15 for
backpay owed due to discrimination. The parties agree that any
individuals who claimed discrimination at Grades 11 and below
have already stipulated to procedures for their compensation.
Pls.’ Resp., ECF No. 401 at 7 n.6. Therefore, this Court will
not adopt the R&R’s recommendation to provide a hearing on the
issue of individual relief for such plaintiffs.
The parties disagree about the scope of relief, if any, for
employees claiming discrimination in promotions to Grades 14 and
15. The R&R recommends that plaintiffs submit a proposed damages
model and calculation for these plaintiffs, that defendant
respond to that model, and a discovery period be held for 30
days. R&R, ECF No. 395 at 12–13. If the parties cannot reach an
agreement on the damages model, the R&R recommends the Court
hold a hearing on the issue. Id.
Defendant argues that the issue of damages for employees
claiming violations at the GS-14 and GS-15 levels is premature
because, according to defendant, there has been no finding of
liability on that issue. Def.’s Obj., ECF No. 399 at 21–22.
Specifically, defendant argues that because the Court only found
a disparate impact in the use of SAC short list recommendations
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to select employees, but not in the actual selection of
employees as a group, therefore there is no real violation of
Title VII or need for individual relief. Id. Absent such a
finding of discrimination, defendant argues, the Court should
not allow discovery or calculation of damages. Id.
Defendant’s arguments are identical to the arguments
rejected by this Court in its September 27, 1999 Opinion. See
Sept. 21, 1999 Opinion, ECF No. 35 (hard copy). As the Court
stated nearly 20 years ago, “[t]he fact that there may be no
ultimate disparate impact on the group of African-American
agents eligible for promotion is irrelevant if Plaintiffs can
show that individual African-American agents have been denied
promotion opportunities by an unlawful selection device, i.e.
reliance on SAC short lists.” Id. at 6 (emphasis added)(citing
Connecticut v. Teal, 457 U.S. 440, 451 (1982)). In other words,
once plaintiffs have shown that defendant has engaged in an
unlawful selection device, it is no defense that defendant,
through some counteracting measure, has compensated for this
illegal method by “hiring or promoting a sufficient number of
black employees to reach a nondiscriminatory ‘bottom line.’”
Teal, 457 U.S. at 453.
Connecticut v. Teal is the seminal case on this issue. Id.
Teal concerned a selection process for supervisory positions
which required a written examination that was not shown to be
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related to job performance. 457 U.S. at 443. Although the
written examination caused a disparate impact on African-
American candidates the defendant applied an “affirmative
action” program before final decisions were made which
compensated for that disparate impact and was implemented “in
order to ensure a significant number of minority supervisors”
were selected. Id. at 444. Defendant argued that, despite the
alleged discriminatory practice--requiring a test that has not
been shown to be job-related--the general promotion process did
not have an adverse impact on African-American candidates as a
group, and therefore there could not be a violation of Title VII
because their “bottom-line” promotion numbers were not
discriminatory. Id.
The Court rejected this “bottom-line result” theory. After
holding that the practice at issue, an exam that bars a
disparate number of black employees from consideration for
promotion that has not been shown to be job related, presents a
claim for a violation of Title VII, the Court explained that any
“bottom-line” defense was unworkable because the Supreme Court
had never read Title VII “as requiring the focus to be placed .
. . on the overall number of minority or female applicants
actually hired or promoted.” Id. at 450. Rather, the focus of
the Act is on “employment and promotion requirements that create
a discriminatory bar to opportunities.” Id. In other words,
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because the “principal focus of the statute is the protection of
the individual employee, rather than the protection of the
minority group as a whole,” an employer is still liable for a
Title VII violation if it uses an unlawful selection device
which affects individual employees, notwithstanding the fact
that there may be some counteracting process on the back end
that protects the group as a whole. See id.
In this case, the Court has already found that the use of
the SAC short list had a disparate impact on African-American
agents and thereby violated Title VII and the Court’s remedial
order. Sept. 27, 1999 Opinion, ECF No. 35 at 22 (hard copy).
Relying on Teal, the Court held that plaintiffs had shown that
the use of the SAC short list had a disparate impact on African-
American agents, and therefore there was a violation of Title
VII notwithstanding the fact that the Career Board that
ultimately made the decisions tried to counteract the
discrimination by favoring the few African-American employees
who actually made it on the list. See Id. Thus the Court found a
violation of Title VII and its remedial order and directed the
parties to brief the issue of individual relief. Id. The
defendant’s claim that there has been no liability finding in
the Court’s September 1999 Opinion, is either a fundamental
misunderstanding of the Court’s Memorandum Opinion, the law
supporting the Opinion, or both.
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Accordingly, Court will adopt the R&R’s recommendation on
this issue and will order plaintiffs to state with certainty the
damage model they propose, and allow defendant to either concede
the validity of the model or file an opposition. If defendant
does file an opposition, the Court will order a discovery period
including depositions of experts. If there is no agreement after
the discovery period, the damages issue shall be resolved by the
Court.
4. Appropriate Enforcement Mechanisms
The R&R recommends several measures as appropriate to
ensure enforcement with the procedures outlined above. The
measures are to freeze promotions to Grades 13, 14, and 15,
immediately until the validated procedures have been put in
place; and a civil penalty of $10,000 per day if defendant fails
to comply with the Court’s Order. R&R, ECF No. 395 at 7.
In light of the fact that defendant has reinstated the pre-
2004 promotion system for promotions to Grade 13, and has taken
steps to implement the validated Pulakos Plan as to Grades 14
and 15, no civil monetary penalty or an order freezing
promotions is warranted at this time. Indeed, plaintiffs agree
that such sanctions would be unnecessary if defendant
implemented those measures. Pls.’ Resp., ECF No. 401 at 12.
IV. Conclusion
For the foregoing reasons the court adopts in part the R&R.
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An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 25, 2019
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