The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
Memorandum Opinion & Order from 93-2420
Before the Court is a joint motion for final approval of the consent decree proposed by the parties to settle this class action lawsuit. Upon consideration of the positions of class counsel and the defendants, and after particular attention to the objections and comments submitted by claimants, class members, named plaintiffs, and other affected persons, the Court finds that the proposed consent decree is fair, adequate, and reasonable. Therefore, the Court will grant final approval of the consent decree.
Any evaluation of this proposed consent decree must begin with the reality of sexual harassment at the District of Columbia Department of Corrections (DCDC or Department) over the last three decades. *fn1 In this case alone, the allegations of the plaintiff class members have detailed a persistent and pervasive culture of implicit and explicit quid pro quo sexual harassment, as well as a work environment as sexually hostile as one can imagine. Claimants have alleged (and, in many cases, the Court's Special Master has confirmed) instances of coerced sexual relationships ending in unintended pregnancies, sexual assault, unwanted grabbing, rubbing, and other sexual touching, and what seems a constant stream of sexually suggestive and sometimes abusive comments. *fn2 Plaintiffs' allegations implicate not just a discrete employee or group of employees, but officers throughout the Department including the very highest levels.
Moreover, sexual harassment is only half of the story. Hand in hand with the growth and spread of sexual harassment at the DCDC has come a crescendo of retaliation against those employees who opposed sexual harassment at the Department. Employees, male and female, who opposed the harassment (and the Department's condonation of it) were variously subjected to transfers to unfavorable and occasionally dangerous assignments, false disciplinary charges, and constructive and outright terminations. In addition to the retaliatory employment actions, an atmosphere of violence and threatened violence seems to have underlain the Department's harassment. Plaintiffs allege incidents ranging from one-on-one physical confrontation to threatening phone calls to vandalism and destruction of property. *fn3
In November of 1993, Sharon Bonds filed this action against the DCDC and the District of Columbia seeking monetary and injunctive relief for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1983. In January of 1994, named plaintiffs Bessye Neal, Sharon Bonds, Vera Brummell, Barbara Carter, Essie Jones, Shivawn Newsome, Tyrone Posey, and Teresa Washington filed the First Amended Complaint and sought certification of a class action. Plaintiffs alleged a pattern and practice and an unwritten custom or policy of sexual harassment and retaliation by the defendants, where such practices had flourished despite a prior injunction issued by the Court to end these practices. *fn4 The goals of the plaintiff class were to enforce the existing injunction and obtain further injunctive relief, and also to obtain a measure of justice in the form of monetary damages for individuals who had been harmed by the pattern and practice of sexual harassment and retaliation at the Department.
On December 23, 1994, this Court granted Plaintiffs' motion for class certification. The class certified by the Court was defined as:
a. all current and former female employees who have been employed by the D.C. Department of Corrections between April 1, 1989 and the date of trial and who were adversely affected by the practices of sexual harassment; and
b. all current and former female and male employees who have been employed by the D.C. Department of Corrections between April 4, 1991 and the date of trial and who have suffered retaliation for opposing sexual harassment.
Following a long string of discovery misconduct by defendants, the Court found that the defendants had utterly failed to respond to an interrogatory propounded by plaintiffs concerning the identity of persons with knowledge regarding the matters alleged in the complaint, despite an extension of time that explicitly warned the defendants of the consequences of a failure to respond. As a discovery sanction, the Court barred defendants from calling at trial any fact witnesses.
A jury trial commenced on March 1, 1995, which resulted in a judgment and verdict for the plaintiff class and for seven of the eight named plaintiffs. A final judgment was entered on August 9, 1995. See Neal v. D.C. Dept. of Corrections, Civ. No. 93-2420, 1995 WL 517244, 517246, 517248, 517249 (D.D.C. Aug. 9, 1995). The jury awarded compensatory damages to six of the eight named plaintiffs, and the Court granted back and front pay and other equitable relief to seven of the eight named plaintiffs. *fn5 Further, the Court granted class-wide injunctive relief.
Defendants appealed the final judgment and, on August 23, 1996, the United States Court of Appeals for the District of Columbia Circuit ruled that the discovery sanction was overly harsh. The Court of Appeals vacated the judgment and remanded the case for a new trial. See Bonds, et al. v. District of Columbia, et al., 93 F.3d 801 (D.C. Cir. 1996). Plaintiffs' petition for certiorari was denied by the United States Supreme Court. After several months of additional discovery, a second trial was scheduled to begin in August of 1997.
Beginning in approximately November of 1996, the parties began to discuss settlement of this class action. The parties engaged in protracted negotiations that lasted approximately nine months before a preliminary settlement was reached. The negotiations between the parties were at arms length and vigorous. Much of the negotiations were mediated by two experienced practitioners who were appointed by the Court.
During the negotiations, class counsel for the plaintiffs consulted with the named plaintiffs and circulated drafts of the proposed agreement at various stages. Each of the named plaintiffs attended at least one of the mediation sessions.
The parties assert several factors that class counsel reasonably relied upon in deciding to recommend the settlement to the Court in August of 1997:
1. A substantial portion of the evidence had become dated in August of 1997, over two years after the first trial of this matter;
2. A plan was being formed to transfer control of the Department to the United States and to close several of the prison facilities, which could have affected the availability of injunctive relief;
3. The District of Columbia was suffering from severe financial difficulties and a lack of resources;
4. The parties wished to avoid the expense, delay, and inconvenience of further litigation; and
5. Many named plaintiffs and class members, for their own mental and physical health, wished to bring closure to the matter and to start the healing process after many years of suffering from the pattern and practice of sexual harassment and retaliation at the Department.
Overall, class counsel concluded that the terms of the settlement were and are favorable to the plaintiff class as a whole, including the named plaintiffs. Class counsel asserts that the settlement satisfies the dual goals that the plaintiffs set out to accomplish when they filed this action, by providing important injunctive relief as well as significant amounts in monetary damages. In August of 1997, the parties presented the proposed consent decree to the Court for preliminary approval, which the Court granted on August 28, 1997.
Following preliminary approval of the consent decree, the claims process began under the direction of the court-appointed Special Master. *fn6 All potential class members were notified that, in order to recover for any claims arising during the covered time period, they were required to submit a completed claim form to the Special Master by October 20, 1997. The Special Master then conducted a non-adversarial personal interview with each claimant, of approximately one half hour in length, at which the claimant had the opportunity to clarify and comment on the information submitted in his or her claim form; this interview process lasted until approximately June of 1998. During the subsequent several months, the Special Master investigated and evaluated the submitted claims in accordance with an innovative allocation method developed by him after a review of procedures used in other class actions, as well as consultation with accounting experts and experienced labor lawyers. The Recommendations of the Special Master Concerning Monetary and Equitable Relief, including a detailed Allocation of Relief, were filed on December 22, 1998.
After further consultation with the parties, and with the work of the Special Master having neared completion, the Court on January 8, 1999 issued a Notice and Order Regarding Hearing on the Fairness of the Settlement, setting forth procedures for the lodging of comments on and objections to the proposed consent decree, including the Special Master's Recommendations and Allocation of Relief. On February 22, 1999, the Court held a day-long fairness hearing at which class members and a number of other individuals spoke in favor of or against the proposed consent decree. Those comments and objections will be dealt with in detail below.
C. Proposed Consent Decree
A brief summary of the terms of the proposed consent decree goes far, in the Court's determination, toward establishing that the settlement is fair, adequate, and reasonable.
The proposed consent decree provides for the payment of $8 million, together with all interest earned due to the early payment of the $8 million into an escrow fund, for settlement of "all claims of sexual harassment against the District, its agents or employees that were brought or which could have been brought under any theory of liability for such claims by all female employees of the Department between April 1, 1989 and July 22, 1997," and for "all claims of retaliation for opposing sexual harassment against the District, its agents or employees that were brought or which could have been brought under any theory of liability for such claims by all employees of the Department between April 4, 1991 and July 22, 1997." Consent Decree at IV.A. The monetary relief is divided into three segments covering: attorneys' fees and costs, named plaintiffs, and class members. As set forth in Section IV.D.1 of the consent decree, the money will be divided as follows:
a. the eight named plaintiffs will receive $1,618,000;
b. 130 persons found by the Special Master to be class members will receive $4,350,000 plus all interest earned on the $8 million. The total interest earned to date is approximately $500,000. Thus, the total amount of money available to the class members is $4,850,000;
c. attorneys' fees and costs account for $2,032,000.
The individual allocations for the named plaintiffs are set forth in the consent decree. As to the individual claimants, the Recommendations of the Special Master Concerning Monetary and Equitable Relief (including the Allocation of Relief) states the various awards.
The class-wide injunctive relief set forth in section II of the consent decree is substantially similar to the relief that was ordered by this Court in August of 1995, following a trial and post-trial briefing from the parties. The consent decree establishes an independent, court-appointed Office of the Special Inspector within the DCDC. Under the settlement agreement, the authority that would ordinarily be vested in the Director of the Department regarding sexual harassment and retaliation will be vested in the Special Inspector (SI). This independent office is a central feature of the proposed settlement, because the Department has repeatedly failed to comply on its own with court orders and the laws prohibiting sexual harassment and related retaliation. The consent decree calls for the SI position to be filled by Alan Balaran, currently the court-appointed Special Master, if he should choose to accept it; if he does not, the position will be filled by agreement of the parties or, if the parties cannot agree, by the Court.
The scope of the injunctive relief is substantial, greater even than court-ordered relief in many cases, and will establish a "cutting-edge system" within the Department. Pursuant to the consent decree, the SI will have virtually identical authority as he would have had under the previous court orders. The SI will hire or contract with his own staff to conduct investigations and carry on other work of the office, thus establishing the necessary independence and permitting him to bring in people with the required expertise. The SI and his investigators will investigate all complaints of sexual harassment and retaliation for opposing sexual harassment in the Department of Corrections; the SI will issue findings; and the SI's office will have authority to discipline employees found to have engaged in sexual harassment or retaliation. The SI will also have authority to provide relief such as corrective personnel actions and back pay to prevailing complainants. Although the Office of the Special Inspector will be part of the District of Columbia government and will function within the ordinary budgetary parameters of that government, the consent decree aims to ensure that the SI will have the necessary funds to support this important work and maintain its independent status. The proposed consent decree also provides that if there is any disagreement between the SI and the District regarding budget or other perquisites of the office, this Court shall rule on the issue.
Pursuant to the consent decree, the SI will develop new policies and procedures related to sexual harassment for the Department. The SI will design a sexual harassment training program, select the materials to be used and instructors for training, and supervise the training, ensuring that proper records are kept of who receives training. The consent decree also provides for the creation of an Ombudsperson position, *fn7 the establishment of a sexual harassment advisory committee, and a hotline, all of which were elements of the August 1995 order of this court.
Finally, as amended on January 8, 1999, the consent decree provides that, upon final approval, all preliminary injunctive relief awarded to individuals by the Court shall become permanent relief as to the underlying claim addressed by the preliminary injunction.
In the Court's opinion, the breadth and depth of this equitable relief weighs heavily in favor of a finding that the proposed consent decree is fair, adequate, and reasonable. While the Court is keenly aware of the inherent limitations of monetary relief in compensating the victims of sexual harassment and retaliation, the Court finds that the objectives of the class plaintiffs are substantially met by the equitable relief, which in this Court's estimation offers the best hope yet of a real change in the DCDC's handling of sexual harassment issues.
D. Special Master's Recommendation Regarding Monetary and Equitable Relief
The Recommendations of the Special Master Concerning Monetary and Equitable Relief was filed with the Court on December 22, 1998, setting forth in some detail the Special Master's findings and recommendations for awards under the consent decree. An Amended Allocation of Relief was filed May 21, 1999, in which were incorporated several revisions made after the Special Master reviewed the comments and objections submitted to the Court. *fn8 Although the Court will not repeat all of the information contained in the Special Master's recommendations, a brief summary is helpful in understanding the full range of relief provided by the settlement agreement.
Nearly 250 individuals presented claims to the Special Master. Of those, the Special Master denied relief to over one hundred claimants, for reasons ranging from allegations of conduct occurring outside the covered time period to failure to adequately document their claims of sexual harassment or retaliation. See Amended Allocation of Relief, tab. 4.
The Special Master recommended monetary awards to 130 claimants. The smallest total award was less than $2,000; the largest total award was over $200,000; and the average total award was just over $35,000. *fn9 See id. tab. 16. Broken down into categories, sexual harassment awards ranged from less than $800 to almost $130,000; retaliation awards ranged from approximately $1,600 to over $100,000; and financial loss awards ranged from under $80 to over $130,000. See id. tab. 17.
The Special Master also recommended numerous equitable awards, pursuant to section V.B of the consent decree. Nine individuals will be promoted. Seven people will be rehired. One individual will be rehired and promoted. See id. tab. 2. In addition, the Special Master has decided that the files of nearly seventy individuals shall be purged of disciplinary actions. See id. tab. 3.
One final feature of the Special Master's authority under the consent decree should be explained. The Special Master has served a dual role in this litigation. The first aspect of the Special Master's duties stems from the injunctions entered by this Court in March and June of 1995 and February of 1996, which listed a number of persons who would be "protected" from retaliation by requiring that the defendants preclear any employment actions concerning them with the Special Master before acting. Pursuant to this authority, the Special Master has interceded on behalf of many individuals to ensure that employment actions proposed by the Department were legitimate, and to rectify improper actions. The Special Master took such action, in accordance with the terms of the injunction, because the individuals at issue were "protected persons," without regard to whether the employment action at issue was shown to be retaliation for opposing sexual harassment of female employees.
The second aspect of the Special Master's duties, and the one most squarely at issue today, stems from the proposed consent decree itself. Sections IV.E and V.B of the consent decree authorize the Special Master to allocate the monetary relief provided for in the settlement and to award limited non-monetary equitable relief to claimants, respectively. These provisions provide the authority for the Special Master's Recommendations Concerning Monetary and Equitable Relief described above and discussed in more detail below as they relate to particular individuals. The Special Master's authority in allocating relief under the consent decree is limited to compensating claimants who establish claims of sexual harassment (of female employees only) or retaliation for opposing the sexual harassment of female employees, along with claims of financial loss associated with such harassment and retaliation.
It must be clearly noted that the two authorities of the Special Master are not coextensive. The Special Master's actions under the first aspect have been based entirely on an individual's "protected" status, without regard to whether the particular employment action being challenged was shown to in fact be retaliation for opposition to sexual harassment. On the other hand, the Special Master's allocation of relief under the consent decree is based entirely on whether a claimant has demonstrated sexual harassment or retaliation for opposing sexual harassment, without regard to whether the person was included on the "protected list" created by this Court's injunctions. This subtle distinction has led to some confusion among class members, some of whom have been protected by the Special Master in his implementation of the injunction and were then surprised when the Special Master recommended that they not receive an award under the consent decree. It is clear, however, that the Special Master's interpretation of his dual authority is correct; while the two aspects of his authority practically overlap in some instances, they are not coextensive, and relief under one does not lead necessarily to relief under the other.
As a final factual matter, the Court will briefly address the attorneys' fees provided for in the settlement agreement. The consent decree provides for $2,320,000 in attorneys' fees to be paid to class counsel. Some class members have expressed a concern that these fees may have provided an improper impetus for class counsel to settle this action. However, while $2,032,000 is a substantial sum of money, the attorneys for the plaintiff class will in fact receive fees well below their ordinary billing rates, simply because of the tremendous number of hours worked on this case by a large number of lawyers. By way of illustration, the parties informed the Court at the time they requested preliminary approval of the consent decree in August of 1997 that the $2,032,000 provided in the consent decree represented substantially less than fifty percent of the legal fees actually billed by class counsel and the various attorneys representing individuals. Since that time, attorneys for the plaintiff class have accrued hundreds more hours in representing individual class members, as well as in connection with the fairness hearing held in February of this year; despite this additional legal work, there has been no increase in the amount of attorneys' fees provided for in the consent decree. Thus, the Court believes (and plaintiff class members should be aware) that class counsel stand to gain less financially from this settlement than from a trial, where a verdict in favor of the plaintiff class would likely result in a statutory award of attorneys' fees more closely in line with the fees actually billed. Any perception of a financial motivation for class counsel to settle this class action is, therefore, a misperception.
The narrow legal issue currently before the Court is whether or not to grant final approval to the proposed consent decree. The Court is well aware of the sensitivity and importance of the Court's supervisory role in this context. Unlike the settlement of ordinary civil actions, plaintiffs in class actions often have relatively little voice in settlement negotiations. See generally G. Donald Puckett, Note, Peering into a Black Box: Discovery and Adequate Attorney Representation for Class Action Settlements, 77 Tex. L. Rev. 1271 (1999). In large class actions, the best that the class can hope for is usually participation in settlement negotiations by the named plaintiffs. The better part of the initiative and compromise behind the negotiations, however, inevitably lies with class counsel. See id.
In light of this situation, the law provides that a district court shall not approve a settlement in the class action context absent a finding that the settlement as a whole is "fair, adequate, and reasonable." See, e.g., Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998). As the Court of Appeals has recently explained, "[t]he court's primary task is to evaluate the terms of the settlement in relation to the strength of the plaintiffs' case. The court should not reject a settlement merely because individual class members complain that they would have received more had they prevailed after a trial." Id. (citation omitted). Likewise, it is the court's duty to evaluate the proposed settlement with a view toward protecting the interests of the class as a whole. While the positions and interests of individual plaintiffs, named and unnamed, are a central consideration in the court's determination, a settlement that is fair, adequate, and reasonable for the class as a whole should be approved even though a substantial number of class members may object. See id. at 232; Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1074 (2d Cir. 1995); Reed v. General Motors Corp., 703 F.2d 170 (5th Cir. 1983).
It is with this legal standard in mind that the Court approaches the question of whether to grant final approval to the proposed consent decree. As an initial matter, the Court finds that the combination of over $8 million dollars in monetary relief and the broad and progressive equitable relief agreed to by the parties weighs heavily in favor of approval. This inclination is further supported by the ground-breaking and impressive method established by the Special Master for allocation of the monetary relief among the individual claimants, a method which this Court believes will be adopted in the future by other courts facing the formidable challenge of allocating settlement funds to a large number of claimants in employment discrimination cases.
Despite the many positive aspects of the proposed consent decree, however, a number of class members and other individuals exercised their right to lodge comments on and objections to the proposed consent decree before the February 22, 1999 fairness hearing and in person at the hearing itself. The vast majority of those comments were directed at individual allocation recommendations made by the Special Master, rather than objections to the settlement in general, although the Court did receive and hear several global objections which will be addressed below. Many of the objections received reflect misunderstandings of the Special Master's allocation method or of the definition of the plaintiff class. In other instances, legitimate objections to individual allocations have resulted in revisions by the Special Master.
Before addressing each individual objection, it is relevant to note that the proposed consent decree contains a fairly typical nonseverability clause providing that, if the agreement is not approved in its entirety, it will be null and void. See Consent Decree at VI.I. Therefore, should the Court find a flaw or inconsistency in the settlement agreement, it has just two options: (1) approve the consent decree despite the flaw or inconsistency, or (2) disapprove the agreement in whole, invalidating all those positive and proper provisions along with any flawed or inconsistent provision.
In this regard, each individual comment or objection carries its own weight, and if it raises a flaw in the settlement so egregious as to render the agreement unfair, inadequate, or unreasonable, then the Court must and will disapprove the entire proposed consent decree. At the same time, each comment or objection's weight, even if insufficient in isolation to render the settlement unapprovable, must be considered in its cumulative aspect; if the Court finds the total weight of all submitted comments and objections to render the settlement agreement unfair, inadequate, or unreasonable, then the Court must and will disapprove the consent decree. That said, the Court will turn to an examination of the various general and particular comments and objections submitted for its consideration.
A. Comments and Objections of Named Plaintiffs
Four of the eight named plaintiffs in this class action (Sharon Bonds, Essie Jones, Tyrone Posey, and Teresa Washington) have objected to the proposed consent decree. While it is well settled that the objections of several or even a majority of named plaintiffs does not prohibit a court from approving a consent decree, see, e.g., Maywalt, 67 F.3d at 1074, such objections clearly warrant careful consideration before a decision on approval or disapproval is made.
1. General Comments and Objections
The objecting named plaintiffs' first objection is to the consent decree's proposed allocation of monetary relief among the named plaintiffs. By agreement of the parties, the consent decree distributes the $1,618,000 allocated to the named plaintiffs in proportion to the awards received by the named plaintiffs at trial in 1995. The objecting named plaintiffs correctly point out that the vacated 1995 judgment has no precedential value. However, the 1995 awards were made by juries after full trials on liability and damages. The Court cannot say that the parties were unreasonable in their conclusion that the awards from the 1995 trial provide a more equitable basis for distribution of the funds allocated to the named plaintiffs than a rigid pro rata division. In any event, the primary concern is that the parties agreed to such distribution of relief, and to that extent the distribution is on equal footing with any other that the parties might agree to. The simple fact that it reflects an earlier jury verdict which was subsequently vacated does not render the parties' otherwise reasonable agreement less reasonable.
At the fairness hearing, named plaintiffs Shirley Jones and Theresa Washington both expressed the related objection that the $8 million provided for in the settlement agreement was simply insufficient to compensate the victims. The Court, however, finds that the monetary relief is reasonable when viewed in conjunction with the broad equitable relief provided for in the consent decree.
In conjunction with their objection to the allocation of monetary relief among the named plaintiffs, the objecting named plaintiffs argue that, should the Court reject their objection, they should be permitted to opt out of the class action and pursue their claims in a separate action. The Court, however, has already addressed the issue of opt-outs in this litigation. See Robinson v. Williams, Civil Action 96-555 (Jan. 27, 1999); Bostick v. Moore, Civil Action 98-2177 (Jan. 27, 1999). Like the plaintiffs in those two cases, the objecting named plaintiffs have failed to show that their claims are unique or sufficiently distinct from the claims of the class as a whole to warrant an opt-out from this Rule 23(b)(2) class action. Therefore, the objecting named plaintiffs will not be authorized to opt out of the action.
The objecting named plaintiffs' final general objection is that class counsel had a potential conflict of interest in representing class members who objected to the proposed settlement as well as class members who supported it. The Court agrees with class counsel, however, that this objection reflects a misunderstanding of the role and duties of class counsel. As the United States Court of Appeals for the Second Circuit has correctly noted:
Class counsel's duty to the class as a whole frequently diverges from the opinion of either the named plaintiffs or other objectors. . . . [T]he compelling obligation of class counsel in class action litigation is to the group which makes up the class. . . . To that end, Class Counsel must act in a way which best represents the interests of the entire class and is not dependent on the special desires of the named plaintiffs.
Maywalt, 67 F.3d at 1076 (quoting Maywalt .v Parker & Parsley Petroleum Co., 155 F.R.D. 494, 496 (S.D.N.Y. 1994) (internal citations omitted)); see also Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir. 1981) (noting that "'client' in a class action consists of numerous unnamed class members as well as the class representatives" and that this can force class counsel to "act in what she or he perceives to be in the best interests of the class as a whole" (internal citation omitted)). While the objections of some plaintiffs to a proposed settlement advocated by class counsel is a consideration for the court in deciding whether to approve the settlement, the conflicting wishes of class members need not constitute a disqualifying conflict of interest for class counsel, whose primary obligations are to the class as a whole.
In contraposition to the foregoing objections, named plaintiff Bessye Neal spoke forecfully and eloquently at the fairness hearing in favor of the consent decree, urging the Court to grant final approval. Although Ms. Neal stated that retaliation at the Department continues to be a problem, and that the consent decree is imperfect, she stated her belief that the consent decree (and particularly the equitable relief that it provides) will establish the framework for positive change at DCDC. The Court agrees.
Named plaintiff Vera Brummell also submitted a comment asking that the Court approve the settlement, stating that the goals and purposes of the class action had been addressed. At the fairness hearing, she asked the Court to carefully consider all objections raised, and then to approve the settlement. Today's ruling will satisfy both of those requests.
2. Individual Comments and Objections
In addition to their collective general objections, two of the objecting named plaintiffs raised individual objections to the proposed consent decree.
Tyrone Posey objected to a particular provision of the consent decree, arguing that 524 hours of "absent without leave" (AWOL) charges against him should be compensated (as provided in the 1995 judgment following trial) rather than merely credited toward his time in grade, because he has now retired from the DCDC. At the fairness hearing, counsel for Mr. Posey represented that the defendants had agreed to compensate Mr. Posey for the 524 hours, as he requested.
Plaintiff Teresa Washington objected to the consent decree's failure to award her the equitable relief granted by this Court following the 1995 trial. In particular, she objects to the consent decree's failure to provide for the accrual of benefits while she continues on "leave without pay" (LWOP) status. While the Court does not find plaintiff Washington's request to be unreasonable, neither does the Court find that its omission from the consent decree renders that document unfair. The proposed consent decree, like any settlement agreement, reflects a compromise position between the parties in this case. The failure of class counsel to secure a particular provision cannot be seen to undermine the agreement in general. *fn10
The Court finds that the objections raised by the objecting named plaintiffs do not uncover any fatal flaw in the settlement agreement embodied in the proposed consent decree. While the Court will consider each objection both individually and in cumulation with the comments and objections discussed below, the Court finds that in neither light do the objecting named plaintiff's comments and objections require a rejection of the consent decree. This position is fortified by the support for the consent decree exhibited by the other four named plaintiffs, most vocally Bessye Neal.
B. Objections of Individual Class Members and Other Individuals
Of the more than sixty sets of comments and objections submitted for the Court's consideration by persons other than the named plaintiffs, nine individuals lodged global objections to the proposed consent decree. *fn11
Brenda Beeton, Dennis Beeton, and James Derr submitted essentially identical global objections to the settlement agreement. In their submissions, the claimants identify approximately a dozen discrete objections:
1. The first objection is that the consent decree's definition of its effective date provides the class members with inadequate notice of relevant deadlines, etc. This objection is without merit, as the Court has issued adequate notice of each of the deadlines in this action, and the Special Master and class counsel have taken care to inform class members of their rights and obligations. The Court presumes that this practice will continue after the Court approves the settlement, with a communication either from the Special Master, class counsel, or both, explaining the extent to which class members and other individuals may appeal the Court's decision and the applicable deadlines.
2. The objectors request the express inclusion in the consent decree's definition of "adverse employment action" the denial of promotion based on participation in a protected activity and the Neal litigation. The language in the consent decree is clear, however, and any perceived lack of specificity certainly does not warrant rejection of the settlement. Denial of promotion is clearly contemplated by the consent decree as adverse action.
3. Third, claimants object to the Special Inspector position being part of the DCDC, suggesting instead that the Court maintain exclusive control over the Special Inspector's office as it has overseen the Special Master. This Court is not inclined, however, to serve perpetually as a microadministrator of the Department of Corrections. The substantial equitable relief provided in the consent decree, most notably in the creation of the Office of the Special Inspector, is a reasonable way to protect against sexual harassment and retaliation at the Department while also returning control of the agency to its proper place.
4. Claimants also object to the Special Inspector's investigators being employees of the DCDC. Plaintiffs would prefer that the Department management bear responsibility for disciplining employees, *fn12 subject to prosecution or contempt findings. Like the position of Special Inspector, the investigators should be DCDC employees (although with some greater degree of independence) mindful of their responsibility for upholding the law. Again, it is not for this Court to perpetually oversee the Department of Corrections. *fn13 5. Claimants next suggest that the Special Inspector's investigators should be explicitly made subject to subpoena "for the purposes of any civil action arising out of this Consent Decree." The Court is satisfied that the ordinary rules governing the subpoena of agency investigators will apply equally and adequately to the SI's investigators. Furthermore, it is unclear to the Court what the claimants mean when referring to civil actions "arising" from this consent decree, which actually precludes separate actions arising during the covered time period.
6. Claimants assert that the Special Inspector should be chosen by the Court on recommendation of the parties, rather than by the parties alone. This, however, is a settlement between the parties, and the Court is satisfied that the parties together can be trusted to pick a trustworthy Special Inspector. *fn14 If they should fail to agree, the consent decree provides that the Court will choose from candidates proposed by the parties, as plaintiffs suggest. The objection, therefore, carries little weight.
7. Claimants object to the maintenance of any sexual harassment training records within the Department, asserting that it should be the Special Inspector's duty to prevent tampering with files. The Special Inspector will adequately ensure the integrity of training files whether they are stored in the physical confines of the OSI or at the Training Academy.
8. The claimants also object to the dissolution of the Court's existing injunctions following the going into effect of the consent decree. However, as the Court has noted above, this settlement agreement properly returns primary responsibility for the prevention of sexual harassment and retaliation to the DCDC, ending the prolonged judicial oversight by this Court. Dissolution of the existing injunctions is a proper and appropriate term of the agreement.
9. Referring to section III.A of the consent decree, plaintiffs object that claimants are left without relief in the event that the Special Inspector should fail to remedy a claim. While the plaintiffs' reference to section III.A is somewhat unclear, the Court is satisfied that the determinations of the Special Inspector will be subject both to administrative appeal and, if necessary and where appropriate, to review in the local or federal courts.
10. Tenth, the claimants object that "$8 million could not possibly compensate the plaintiffs or individually named claimants in this action." Although the Court understands that monetary compensation can seldom perfectly remedy the harm resulting from sexual harassment or retaliation, the Court finds that $8 million is a reasonable sum and that, taken in conjunction with the broad equitable relief provided by the settlement, the monetary relief is adequate consideration for satisfaction of the class claims. Also, as the Court has noted, settlement necessarily involves compromise, and the parties must be allowed to consider the savings in legal costs and other expenses that would be associated with continued litigation, as well as less tangible benefits to the parties from resolving this dispute now, rather than after another lengthy trial and lengthy appeals process.
11. Claimants' next contention is that the Special Master should not be permitted to make any recommendation on monetary relief without the approval of the claimant. Such a procedure would, of course, be entirely unworkable. The consent decree provides a limited amount of funds to be distributed to claimants, and the Special Master has done an admirable job of allocating those funds equitably and efficiently. Allowing any claimant to veto the Special Master's decisions would disrupt the entire process.
12. Claimants object to the consent decree's limitations on the equitable relief available to individuals. However, the Court concludes that the equitable relief provided for is reasonable in light of the broad class-wide equitable relief mandated by the consent decree. While plaintiffs rightly complain that some deserving plaintiffs may not be made one hundred percent whole under the settlement agreement, there would of course be no guarantee that the plaintiffs would receive as much as they seek (or as much as they in fact receive under the consent decree) were the case to go to a second trial (and appeal). Under the circumstances, while the Court considers this a legitimate objection, in isolation it does not come close to undermining the fairness of the agreement as a whole. *fn15
13. Finally, claimants object that the deadline for submitting a claim form to the Special Master was too short. The Court is satisfied that a period of forty-five days was sufficient to allow class members to file a claim, and no revision to the deadline is necessary or appropriate.
Another claimant to file objections with some general applicability was James Clark. Claimant Clark filed literally hundreds of pages of documents with the Court over the course of this litigation, most of which related to specific objections to the Special Master's handling of Clark's claims. In that regard, claimant Clark objects to the proposed consent decree insofar as it precludes him from pursuing his claims in a separate lawsuit before a jury. More specifically, Clark objects strenuously and repeatedly to the Special Master having any involvement with his claim, as he believes that the Special Master is biased against him. As this Court has already held in a memorandum order filed May 25, 1999, Clark's objections to the conduct of the Special Master are entirely baseless and form no legitimate foundation for disturbing the settlement agreement. Likewise, as in the case of the objecting named plaintiffs, claimant Clark may not opt out of this Rule 23(b)(2) class action to pursue his claims separately. Claimant Clark's objections are rejected.
Several global objections were also submitted by claimant Thyra Griffin. First, claimant Griffin objects to the lack of participation in settlement negotiations available to her and the other plaintiff class members, both named and unnamed. As alluded to above, the Court understands and is sympathetic to claimant's concerns about plaintiff participation in the settlement negotiations, but the Court also notes again that the level of plaintiff participation in this settlement process was not unusually low. To the contrary, class counsel for the plaintiffs did make an effort to include the plaintiff class in its negotiating and decisionmaking process. It is simply a characteristic of class actions (perhaps one that should be evaluated by the drafters of the Federal Rules of Civil Procedure) that settlement negotiations are conducted primarily by class counsel with relatively little direct participation by the class members. Because the Court finds that class counsel has been conscious of this and has acted on behalf of the class as a whole, the Court declines to disapprove the settlement on this basis.
Claimant Griffin's second objection is that, in her perception, the named plaintiffs received more attention, better representation, and greater monetary awards than she and other unnamed class members received. Without addressing with particularity the extent to which the named plaintiffs receive disparate treatment under the terms of the consent decree, the Court notes that named plaintiffs may be entitled to different, even preferential, treatment compared to unnamed class members. Cf. Cook v. Niedert, 142 F.3d 1004, 1016 (7 th Cir. 1998). Undoubtedly, this allowance is based on a recognition that named plaintiffs bear additional burdens as a consequence of their visibility and symbolic status. This is particularly true in cases such as this one, where the case itself has engendered a tremendous amount of hostility, including retaliation in the form of physical threats and violence and adverse employment actions. The Court feels that, under the circumstances, the consent decree's treatment of the named plaintiffs separately from the other class members is appropriate. While the named plaintiffs were involved more directly in settlement negotiations by class counsel, for example, and have received specifically negotiated awards (as opposed to filing claims with the Special Master), the Court holds that this distinct treatment does not bely any unfairness, inadequacy, or unreasonableness in the settlement agreement.
Claimant Griffin's third and fourth objections were also raised by the Beetons and James Derr. Claimant objects to the Special Master becoming a DCDC employee as Special Inspector, an objection which the Court addressed above. Ms. Griffin also objects to the size of the monetary settlement, arguing that $8 million is inadequate to compensate the class and should have been rejected, even if that meant proceeding to trial. As the Court has stated above, settlements are a product of compromise, and this agreement is no exception. In the Court's opinion, this consent decree embodies a reasonable combination of monetary relief and extensive equitable relief. It is understandable that some class members might have preferred to proceed to trial with the hope of recovering more than that awarded under the consent decree. Such a strategy, however, would necessarily involve the significant risk of recovering less than that provided for here, along with the considerable expense of further litigation. Under the circumstances, the Court cannot say that the $8 million, in conjunction with the extensive equitable relief awarded, is unfair, inadequate, or unreasonable.
Finally, claimant Griffin objects to the lack of punitive damages in the settlement. In addition to the fact that punitive damages are seldom if ever included in settlement agreements, the defendants have assumed responsibility for the actions of individual DCDC employees in this action. Punitive damages are therefore not available against individual perpetrators.
Claimant Angelia Henderson submitted a number of objections, at least two of which are generally applicable. First, claimant objects to the lack of punitive damages against individual harassers; however, as just stated, the District of Columbia has assumed the liability of its employees in this action, who therefore may not be subject to individual findings of liability such as punitive damages. Second, claimant objects to the method used for allocating monies among the claimants. As the Court has noted above, the allocation method developed by the Special Master is innovative, efficient, and in the Court's estimation very fair. It will likely serve as a model for other courts in similar cases. At least in the absence of some more specific objection by claimant, the Court is not inclined to invalidate the settlement on this ground.
Claimant Deborah Jones submitted several objections, a number of which are global in nature. First, she argues that the awards made by the Special Master appear too large for some plaintiffs and too small for others. More particularly, she asserts that those female employees who stayed at DCDC, rather than take leave or otherwise remove themselves from the Department, should have been better compensated for the continuous harassment that they faced. The Court finds that the Special Master's method of allocation properly accounts for this insofar as the frequency and severity multipliers account for differing levels of continuing harassment within the covered time period. Second, claimant objects to the procedure by which the Special Master allocated equitable awards in the form of promotions. However, the Court is satisfied with the Special Master's decisions in this regard, and it appears that he in fact gave due consideration to all complaints regarding denial of promotions. Third, claimant objects to the fact that the defendant has not admitted liability in the settlement agreement, and claims that the Department is therefore still getting away with improper actions. However, refusals to admit liability are typical of settlement agreements, and DCDC's refusal to admit liability is not unusual under the circumstances. As for claimant's related allegations, however, the Court certainly hopes that the Department is making efforts to mend its ways (although the Court is not naive in this respect). To the extent that the Department continues to fail in its obligations to its employees in preventing and punishing harassment and retaliation, the Special Master's protection must suffice until the Office of the Special Inspector is operational. That office, once underway, represents the most realistic possibility of genuine reform in the DCDC. Finally, to the extent that claimant has other less specific objections or questions about the Special Master's allocation methods, suffice it to say that the Court is impressed with the Special Master's efforts and has confidence in the fairness and efficiency of the Special Master's allocation method.
Claimant Edna McManus raised several global objections similar to those raised by others. Like Thyra Griffin, Ms. McManus objected to the lack of participation that she was permitted by class counsel throughout the litigation and particularly in the negotiations of the consent decree, as well as objecting to the different treatment of the named plaintiffs. As discussed above, the Court finds these objections understandable but ultimately unpersuasive. The generally diminished role of class members is a general feature of class litigation, and the coincident prominence of the named plaintiffs is a logical consequence of this system. Ms. McManus also raised the related objection (raised first by the named plaintiffs) that the consent decree should not be approved because the named plaintiffs did not all agree to it. As noted above, the objections of one, several, or even all named plaintiffs cannot require the Court to disapprove a settlement agreement that is otherwise fair, adequate, and reasonable.
Like plaintiff Griffin and the Beetons, Ms. McManus also objects to the Special Inspector being a DCDC employee. This objection has already been addressed. Finally, Ms. McManus objects to the Special Master's performance. In this regard, the Court will say once again that the Special Master's conduct has been at all times above reproach. Ms. McManus raises no reason to question the Special Master's integrity or the technical execution of his duties.
Finally, claimant Andra Parker also objects to the Special Master's performance. The Court does not credit claimant's general comments that the Special Master has somehow failed to diligently or competently execute his responsibilities; to the contrary, the Court has on several occasions expressed its satisfaction with the Special Master's performance.
Claimant Parker raises two specific objections, however, with which the Court generally agrees. First, claimant objects to the Special Master's failure to provide a more detailed explanation for the denial of relief in his Allocation of Relief and accompanying report and recommendations. Although given the magnitude of the Special Master's task he can hardly be faulted for focusing his energies as much as possible on those claimants who he found to in fact be entitled to relief, in retrospect the Court recognizes that the denial of relief is (for the claimants involved) an equally important determination. While in many cases a simple and brief explanation such as "claim outside time period" or "missed deadline for filing" is sufficient, in other cases a conclusory statement is not adequate to inform the particular claimant of the reasons for the Special Master's determination. Hopefully, the Special Master's response, filed March 19, 1999, and this opinion should clarify the remaining questions of most claimants.
Claimant Parker also objects to the Special Master's denial of claims by claimant name, instead of by number; claimant states that this unduly impinged on his privacy. Here again, while the Special Master cannot be justly faulted for preferring simpler methods of identification where available, the Court is not unsympathetic to claimant's concerns. In retrospect, it may have been preferable to assign new claimant numbers to those denied relief, as well as to those awarded relief, to protect claimants' privacy as fully as possible. In any event, however, neither this shortcoming nor the failure to more fully explain the reasons for denial are of such a nature as to call into question the fundamental fairness or reasonableness of the settlement agreement. Consequently, the Court will not disapprove the consent decree on either basis.
Finally, the Court will address each of the particular comments and objections raised by individual class members and other interested persons. The Court would note initially that it is unlikely that any single objection could reveal so fundamental an inequity that the Court would be inclined to reject the entire consent decree as unfair, inadequate, or unreasonable. However, the Court feels that objection-by-objection consideration is appropriate here for at least two reasons. First, the Court wants to reassure all those who submitted oral or written comments and objections that they have been given thorough and deliberate consideration by the Court. Second, as the Court has indicated, each comment or objection is important not only independently but also as it contributes to the cumulative weight of the objections to the consent decree. With these motivations in mind, the Court will now turn to a seriatim review of the comments and objections timely filed, proceeding by the individual's last name in alphabetical order.
Carol Adams objected to the denial of relief in her case, alleging that she was sexually harassed when another employee made a lewd and unwelcome sexual advance. Although the Court agrees that the conduct alleged by Ms. Adams is offensive and grossly inappropriate, the Court agrees with the Special Master's conclusion (set forth in his responses filed March 19, 1999) that one incident of unwelcome sexual advance does not rise to the level of a hostile work environment. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998). The Special Master correctly denied Ms. Adams relief.
Oliver Amaechi alleges conduct that was both retaliation for opposition to sexual harassment and also race discrimination.
His claims based on conduct prior to March 1, 1995 were dismissed by this Court, however, on July 9, 1996; as a result, he may only recover for retaliation occurring between March 1, 1995 and the class cut-off date of July 22, 1997. Although it is practically impossible to discern from claimant's submission and his comments at the fairness hearing whether he can document instances of retaliation occurring within this time frame, claimant argues forcefully that the documentation supporting his claims is already in the possession of the Special Master. In any event, based on the Special Master's March 19, 1999 responses, and phrased in the terminology of the Allocation of Relief, the denial of relief to claimant Amaechi reflects a determination by the Special Master that Amaechi failed to establish a nexus between Opposition to Sexual Harassment and Retaliation of greater than zero percent. The Special Master concluded that any adverse action endured by claimant was a result of national origin discrimination or, at most, a result of claimant's status as a "protected person" in this litigation. The latter entitles claimant to the ongoing protection of the Special Master from unlawful adverse action, but it does not entitle claimant to relief under the consent decree--a documented and established opposition to sexual harassment is required.
Zina Anderson objects that the monetary relief allocated to her by the Special Master will be insufficient to cover her medical and living expenses should she be terminated, as proposed by the DCDC. The Court agrees with the Special Master's response that this objection is at the moment too speculative to warrant a revision. Furthermore, claimant's claim is based in large part upon a sexual assault by an inmate in 1991 and the resulting medical expenses and inability to perform some aspects of her employment; because this class action covers only sexual harassment perpetrated by DCDC employees, not inmates, these claims cannot be compensated from this settlement fund. Thus clarified, the Court finds that the Special Master's allocation of relief is just and reasonable compensation for the unwelcome sexual advances and subsequent retaliatory transfer claimant has suffered at the Department.
Claimant Senora Atakula submitted a comment on February 5, 1999 commending the Special Master for his integrity; she also spoke at the fairness hearing. However, it appears from subsequent (untimely) filings that claimant's initial good will may have been based at least in part on a mistaken perception that she had received a monetary award. Although claimant's subsequent submissions were untimely and may not be considered by the Court, the Court does wish to apologize for any confusion arising from the Special Master's assignment of new claimant numbers for the final allocation of relief. This was done to protect the important privacy interests of those claimants receiving awards, as alluded to above, and was not intended to confuse or mislead anyone.
Claimant Ella Baskin submitted an objection not to the Special Master's monetary award, but solely to the failure to expunge from her records all references to "termination." Upon review, the Special Master agreed with claimant and revised his Report and Recommendation to provide the equitable relief requested by claimant.
Claimant Brenda Beeton, in addition to the global objections discussed above, also claims that she was wrongfully denied monetary relief for sexual harassment and retaliation. After a review of claimant's objections and attachments thereto, the Court finds no basis for questioning the Special Master's determination, as further explained in his March 19, 1999 response to her objections. The Court is satisfied that claimant received an adequate interview, that the Special Master reviewed her submitted documentation thoroughly, and that the Special Master was reasonable in determining that any adverse actions taken by the DCDC over the years have been in response to unrelated matters and not to any claimed opposition to sexual harassment. Likewise, claimant has not demonstrated that she was subject to sexual harassment within the covered time period. The Court finds that her claim was properly denied.
Dennis Beeton also submitted individual objections in addition to the global objections discussed above. However, claimant makes no allegations of retaliation occurring during the covered time period, and the Court therefore accepts the Special Master's denial of relief. *fn16
Claimant LaVern Bess submitted objections arguing that the Special Master had assigned an incorrect severity multiplier for her harm. She also spoke at the fairness hearing. Upon review, the Special Master agreed with claimant and revised his allocation of relief to include the increased severity multiplier.
Claimant Cora Black spoke at the fairness hearing and requested that the Court award her at least ninety days of compensated leave time. However, this claim should have been presented to the Special Master within the applicable time period. That time having passed, claimant must now seek the assistance of the Special Master or, shortly, that of the Special Inspector, separately from this action.
Alzeta Bostick failed to file a timely claim, and the Special Master was therefore correct in refusing to consider her claim, even though it may have merit. The Court is keenly aware of the harshness of this result for Ms. Bostick. However, fairness and efficiency require that the Court enforce the deadlines established by court order. Ms. Bostick may have a remedy against her former counsel, who claims to have mailed Ms. Bostick's claim on the deadline date but alleges that the postal service failed to properly collect mail at his building that day. While the Court offers no opinion on whether Ms. Bostick can prove liability, these are precisely the types of circumstances that typically lead to legal malpractice actions, and such recourse may represent Ms. Bostick's only possibility of recovering the relief to which she may have been entitled in this action had she timely filed a claim.
Claimant Dennis Brummel submitted a poetic request that the Court approve the consent decree.
Claimant Lysandra Burnside objected to the Special Master's denial of relief, alleging that she was the victim of sexual harassment between 1984 and 1992. However, Ms. Burnside failed to file a claim in 1995; her pre-1995 claims are therefore barred, and the Special Master correctly denied her relief.
Claimant Henry Bush, in a written submission and at the fairness hearing, objected to the denial of relief in his case, alleging that in addition to age discrimination he was a victim of sexual harassment. However, neither the age discrimination nor the sexual harassment claim falls within the scope of this class action, which covers sexual harassment of women but not of men, as explained below with regard to claimant Carlton Butler. The Special Master, therefore, was correct in denying Mr. Bush relief.
Claimant Carlton Butler articulates a strong case that he was himself a victim of sexual harassment and that he was retaliated against for his opposition to that harassment. While the Court is sympathetic to Mr. Butler's claims, the scope of this class action as intended and understood by the Court from the beginning has been to cover sexual harassment of women and retaliation against those who opposed the sexual harassment of women. This case simply is not about sexual harassment of men or retaliation against those who oppose such harassment. The original class, as certified by the Court, did not include such claims, and they cannot be included now. Claimant Butler and those others in similar situations may have actionable claims that can be brought separately either in federal court or in the local courts through ordinary procedures. Sexual harassment and related retaliation, be they against men or against women, are illegal and victims should not go without a remedy. However, it is a feature of the judicial system that cases are limited in scope, and one case must resolve the issues in that case, and not attempt to resolve all possible injustices. That said, the Special Master correctly determined that claimant Butler and others similarly situated cannot receive relief in this class action.
Claimant Sylvia Cephas alleges both sexual harassment and retaliation (as well as discrimination based on sexual preference, which is not covered by this class action). The Court finds the Special Master's allocation for sexual harassment to be fair compensation for the comments and one instance of unwanted sexual touching endured by claimant. Although it is more difficult to determine based on the evidence before the Court, the Court also finds that the Special Master did not err in denying claimant relief for retaliation based on her own statement that the negative treatment that she suffered was due solely to discrimination on the basis of her sexual orientation. Although the claimant now takes issue with this characterization, the proper basis for the Special Master's determinations is the information made available to him in the claim summaries and during the claim interviews. While the Court might be inclined to consider evidence newly discovered since that time if relevant to a claim, a mere changing of story does not warrant a second look from the Special Master or an independent investigation by the Court. The Special Master's determination, therefore, is adopted.
Claimant Patricia Clark objected to the amount of her monetary award, claiming that she should have received more. However, the Court agrees with the Special Master that the unwelcome kisses on the cheek received by claimant were properly considered non-sexual touching, rather than sexual touching, and the Court is satisfied that the Special Master correctly calculated claimant's relief.
Claimant James Clark raised a number of objections in his several written submissions and orally at the fairness hearing, many of which were nearly incomprehensible. Although the Court has had great difficulty in identifying each of claimant's objections, several are apparent. In essence, claimant objects to the Special Master's allocation of relief as inadequate. He claims retaliation including denial of promotion, retaliatory placement on administrative leave, a proposed termination, and a transfer to a less favorable assignment, as well as placing him in dangerous situations while on the job. Significantly, as discussed briefly above in conjunction with claimant's global objections, claimant alleges that the Special Master has been part and parcel of the retaliation against him, an accusation which the Court finds to be wholly unwarranted and unsubstantiated. Because most of the factual allegations raised by claimant have been considered by this Court many times before in separate filings, and because it is apparent that the Special Master also has considered these allegations thoroughly and thoughtfully, the Court finds no reason to question the Special Master's allocation of monetary relief to claimant.
Although his submission is not entirely clear on this point, claimant James Coley objects to the denial of relief to him for what he alleges was sexual harassment of himself through the promotion of another employee based on that employee's submission to sexual advances. This claim is at most a claim of sexual harassment of a male employee, which as the Court has stated is not covered by the consent decree. Therefore, the Special Master correctly denied claimant monetary relief. *fn17
In response to a filing by the defendant, claimant Patricia Commer submitted comments requesting that the Court approve the consent decree and the Special Master's allocation to her.
Because the Court finds that the defendant has no standing to object to the Special Master's allocation of relief under the terms of the consent decree, *fn18 and having no reason to question the Special Master's determination, the allocation is adopted.
Claimant Shirlene Countee submitted a request for clarification of the Special Master's allocation as it related to her. Unfortunately, it appears that claimant has mistakenly interpreted the allocation as awarding her substantial monetary relief. This misunderstanding results from the assignment of new claimant numbers for the final allocation of relief, a reassignment which was done to protect the privacy interests of the claimants but which has caused some confusion among the class. Ms. Countee was not awarded relief by the Special Master because he correctly determined that, under the controlling case law, the one incident alleged by Ms. Countee does not rise to the level of a hostile work environment constituting sexual harassment.
Claimant Sidney Davis alleged in his written objections and at the fairness hearing that he was the victim of sexual harassment and retaliation for opposing that harassment. As the Court explained above in relation to Carlton Butler, while the treatment alleged by Mr. Davis may well be unlawful, it is simply not covered by this particular class action, which is limited to sexual harassment of women and retaliation for opposing the sexual harassment of women. Mr. Davis may seek adjudication of his claims in a separate action or seek relief within the Department (including the Office of the Special Inspector when it is operational), but he may not recover under the terms of this settlement.
Claimant James Derr, in addition to his global objections, submitted a number of individual objections to the Special Master's allocation of relief to him. He also spoke at the February fairness hearing. The Court is satisfied with the Special Master's representation in his March 19, 1999 response that he thoroughly reviewed claimant's submitted documentation and conducted a non-adversarial interview as provided for in the consent decree, *fn19 as well as returned claimant's documentation. The Court is further persuaded that, as the Special Master determined, any retaliation suffered by claimant was in response ...