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February 6, 1981

Henry W. SEGAR et al., Plaintiffs
Benjamin R. CIVILETTI et al., Defendants

The opinion of the court was delivered by: ROBINSON


This is a class action brought against the Drug Enforcement Administration (DEA) alleging racial discrimination against Black special agents of the DEA in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e, et seq. The Plaintiff class is composed of "all Blacks who currently serve as special agents, who have been discharged from special agent positions, who have unsuccessfully applied for special agent positions, and who in the future will apply for special agent positions in DEA (or in any predecessor or successor organization)." The two individual Plaintiffs are Henry W. Segar and Morris H. Davis.

 Plaintiffs allege that DEA engaged in racially discriminatory practices against Black special agents and special agent applicants in all aspects of the employment process, to wit: (a) recruitment and hiring, (b) initial grade assignments, (c) type of appointment, (d) type of work performed, (e) training, (f) discipline, (g) supervisory evaluations, (h) awards and promotions, and (i) salary. Plaintiffs' recruitment and hiring claims were settled prior to trial, and the procedures of Rule 23 of the Federal Rules of Civil Procedure are being implemented for those claims. Trial on the remaining claims was bifurcated, and the liability issues were tried beginning on April 9, 1979, and concluding on April 24, 1979.


 A. Background

 1. Defendant DEA is the agency of the Department of Justice responsible for the enforcement of federal criminal laws concerning the illegal sale, distribution, and use of drugs, and the regulation of the legal trade in controlled drugs. The history and structure of DEA may be summarized as follows:

 a. Prior to 1968, the enforcement of Federal criminal laws against traffic in illegal controlled substances and the diversion of legally produced controlled substances to the illicit market was the task of the Federal Bureau of Narcotics (FBN) in the Department of Treasury and the Bureau of Drug Abuse Control (BDAC) in the Department of Health, Education, and Welfare. In 1968 the Bureau of Narcotics and Dangerous Drugs (BNDD) was formed and placed in the Department of Justice. The creation of the BNDD was, in effect, a merger of the FBN and BDAC.

 b. In 1973 the BNDD was abolished, and its functions, manpower, and budget were transferred to the newly created DEA. From its inception until August 1, 1977, DEA had 13 domestic and six foreign regional offices. On August 1, 1977, one domestic and two foreign offices were abolished. On October 1, 1978, the number of domestic offices was reduced from twelve to five.

 c. Criminal investigators in DEA are known as "special agents." They conduct surveillance of suspected narcotics dealers and do related undercover work; transact "buys" of illegal drugs as evidence for prosecution; develop cases for prosecution by United States Attorneys and supervise the work of other special agents. As of October 21, 1978, DEA employed approximately 1,967 special agents, of whom 138 (7%) were Black.

 d. DEA has one Administrator, one Deputy Administrator, and seven Assistant Administrators based at Headquarters. These are supergrade positions.

 e. The highest official in each DEA region is the Regional Director (RD), which is a GS-17 position. Each region has a regional office headed by the RD, and one or more district and resident offices. Each district office is headed by a Special Agent-in-Charge (SAIC) and each resident office is headed by a Resident Agent-in-Charge (RAIC). SAIC's are GS-14, GS-15, and GS-16 positions. RAIC's are GS-13 and GS-14 positions.

 f. In the field offices, most agents are assigned to operating groups of approximately fourteen persons. Most groups are designated as enforcement groups, but some, such as intelligence and conspiracy groups, are assigned specific kinds of work. Each group is headed by a supervisor. The Group Supervisor supervises the day-to-day work of group members, evaluates the members' performance once a year, and has authority to recommend them for promotions, awards, and special training. Group Supervisors are GS-14 positions. Non-supervisory special agents positions are at the GS-7 to GS-13 levels.

 g. The minimum requirements for a GS-7 entry level investigative position include three years of general and one year of specialized experience. For a GS-9 entry level investigative position, three years of general and two years of specialized experience are required. The general experience must have involved progressively responsible experience which has required (1) ability to work or deal effectively with individuals or groups, (2) skill in assembling and collecting pertinent facts, (3) ability to prepare clear and concise reports, and (4) ability and willingness to accept responsibility. Successful completion of one year of college credit may be substituted for nine months of general experience; successful completion of a four year college degree program may be substituted for the three year general experience requirement. The specialized experience must have involved progressively responsible experience which demonstrated (1) initiative, ingenuity, resourcefulness, and judgment required to collect, assemble, and develop facts, (2) ability to think logically and arrive at sound conclusions, (3) skill in the writing and presentation of investigative findings, and (4) tact, discretion, and capacity for obtaining the cooperation and confidence of others. For the criminal investigator or special agent positions, an applicant must have at least one year specialized experience in criminal investigations or comparable experience.

 h. DEA can hire an applicant who meets the GS-9 or above minimum requirements at the GS-7 level. Prior to 1978, the decision whether to hire an applicant for special agent above the GS-7 level was made by the RD in the region where the applicant applied. In 1978 hiring authority was transferred to Headquarters; consequently, initial grade assignments for post 1978 applicants are made there.

 i. DEA has the authority to make 154 appointments for the special agent position under Civil Service Regulation 213.2110(c) (Schedule A authority). These appointments are conditional; and applicant becomes "excepted" upon satisfactory completion of a one year trial period. Schedule A authority was created to recruit persons with unique combinations of background (e.g. race and ethnicity) and skills (e.g. knowledge of a particular occupation such as pilot, seaman, or musician). While the selection process for Schedule A employees is the same as that for other agents, those employees do not have appeal rights to the Civil Service Commission and cannot be appointed to supervisory positions. A Schedule A employee can, however, convert to regular Civil Service upon certification by the Civil Service Commission. To become certified, the Schedule A employee must pass one of two examinations.

 2. Special agents carry out the enforcement activities of the DEA. These activities range from administrative and supervisory duties to the duties of the "street agent." A street agent's duties range from conducting surveillance of suspected narcotics dealers and doing related undercover work to developing cases for prosecution by United States Attorneys. The work procedures of special agents may be summarized as follows:

 a. Race and ethnicity influence the location of the assignment of an agent. All other factors being equal, DEA will send a Spanish speaking agent for work in Mexico and a Black agent for work in Detroit (where the majority of violators are Black).

 b. This relation of race to location has not resulted in heavy concentration by race in particular areas. The most recent study found that the New York region has 9% Black agents in its workforce; the Miami region has 12% Black agents; Black agents comprise 7% of DEA's special agent workforce.

 c. DEA's enforcement focus has changed substantially in the past several years. The agency is now aiming its efforts at network elimination rather than individual elimination. With this change of focus there has been a corresponding reduction in the amount of time agents spend working undercover on the streets.

 d. While special agents work in groups, the group supervisor does not always make work assignments. Junior agents receive more supervision than senior agents and, accordingly, have less control over cases. Undercover work is both assigned to agents and developed by agents on their own initiative.

 e. While it is difficult to ascertain exactly how much time is spent by each agent performing undercover work, DEA has a form on which estimated undercover time is placed. Form 371 is not highly probative because the form does not define undercover work, and there is no requirement that the form, which is filled in by the supervisor, be verified. Nevertheless, Form 371 provides the Court with objective evidence indicating how much time each agent spends undercover.

 f. Because DEA has chosen to infiltrate drug networks primarily from the bottom up, and because DEA assumes that race and ethnic homogeneity are extremely helpful for this type of infiltration, Black agents perform a greater degree of undercover work than white agents.

 3. Special agent promotions from GS-7 to GS-9, GS-9 to GS-11, and GS-11 to GS-12 are non-competitive. To receive such a promotion, an agent must serve one year in grade, be recommended by his group supervisor, receive concurrence in this recommendation by a second level supervisor, and have the recommendation approved by the Regional Director. Prior to October 1, 1978, promotions from GS-12 to non-supervisory GS-13 positions were made on a regionally competitive basis. To receive such a promotion, an agent was normally required to serve at least two years in grade, be placed on a best qualified list by a regional career board, and be selected by the regional director. Since 1978, those promotions are considered by the Headquarters GS-13 promotion board.

 4. Promotions from GS-13 to GS-14, from GS-14 to GS-15, and, since October 1, 1978, from GS-12 to GS-13 are competitive agency-wide. All Headquarters and overseas positions are likewise competitive agency-wide. To receive such a promotion or assignment, an agent must satisfy the minimum in-grade requirement, be placed on the best qualified list by the appropriate rating and ranking board, and be selected by the appropriate selecting official. In making its determinations, the rating and ranking boards rely primarily on the agent's most recent performance appraisal, information on disciplinary action within the last two years, and the applicant's application and profile sheet. Agents are then ranked numerically. When the numerical rating system was first implemented in 1976, point values were identified and assigned as follows: length of experience (20), breadth of experience (30), performance evaluation (40) and education and training (10). DEA modified this rating system in 1977 by replacing length of experience with diversity of experience. In 1978 the rating system was again modified, and 45 points were assigned to breadth of experience, 45 points for performance evaluation, and 10 points for training. Breadth of experience contains the following subcategories: supervisory experience (8), complex investigation experience (6), internal security experience (7) diverse domestic (6) and foreign (7) experience, and special skills (4). Performance evaluation contains the following subcategories: most recent annual rating (25) supervisor's comments (15) and awards (5). Rating and ranking boards are not provided any guidance for assigning points; attaching point value to an agent's application is done on the basis of judgment. Appointments at the GS-16 level and above are made at the discretion of the Administrator.

 5. DEA also has procedures for dealing with allegations of agent misconduct. The DEA investigates such allegations if they are made against agents by bona fide individuals and the alleged violation falls within the jurisdiction of the DEA. After a thorough investigation, the investigating official decides whether a disciplinary action should be brought. In 1977, about 30% of the allegations giving rise to an investigation came from within the DEA; 70% came from other sources. In 1977 and 1978 between 60% and 70% of the allegations have proven to be unfounded.

 B. Statistical Evidence

 6. Plaintiffs produced statistical evidence and testimony of Drs. Barbara Bergmann and Mahlon Straszheim, two economists from the University of Maryland. Both have Ph.D's in Economics and have done scholarly work in the field of discrimination. Plaintiffs also introduced the testimony of James Outtz, Ph.D., an industrial psychologist who is an expert in the employment discrimination area. Defendants produced the statistical evidence and testimony of Drs. Martin Kurke, J. Wanzer Drane, and B. C. Spradlin. Dr. Kurke has a Ph.D in engineering psychology and social psychology. Drs. Drane and Spradlin are experts in statistics. All of the above individuals are experts within the meaning of Article VII of the Federal Rules of Evidence; the evidence presented by them is not diminuted due to defects in their expertise.

 7. The average salary of Black DEA agents has been and is substantially below that of white agents. As of January 1, 1975, Blacks earned on average $ 17,637, while whites earned $ 20,604. As of October 1978 Blacks earned on average $ 26,232, while Whites earned $ 29,490. The differentials are $ 2,967 and $ 3,258 respectively. The statistical evidence presented by Plaintiffs regarding the disparity in salaries may be summarized as follows:

 a. Plaintiffs' experts ran regression analyses to test the legitimacy of the salary disparity. The variables in the analyses, entered simultaneously, were (a) years of federal experience, (b) years of nonfederal experience, (c) level of educational attainment, and (d) race. These are the only variables contained in the JUNIPER system (JUNIPER is the Department of Justice's computerized data system). b. The results of these analyses are, with respect to race: DATE RACE COEFFICIENT T.-RATIO 1/1/75 -- $ 1,628 4.65 1/1/76 -- $ 1,744 5.37 1/1/77 -- $ 1,706 5.15 1/1/78 -- $ 1,934 5.15 10/1/78 -- $ 1,026 2.30


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