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Brewer v. Holder

United States District Court, D. Columbia

September 27, 2013

HERMAN BREWER, and FAYETTE REID, individually and on behalf of a class of all persons similarly situated, and JAMES BROOKS, individually, Plaintiffs,
ERIC H. HOLDER, United States Attorney General, Defendant

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For JAMES BROOKS, Individually, Plaintiff: David W. Sanford, LEAD ATTORNEY, Brandon Jamison, Thomas J. Henderson, SANFORD HEISLER, LLP, Washington, DC; Christine Dunn, SANFORD WITTELS & HEISLER, LLP, Washington, DC.

For HERMAN BREWER, FAYETTE REID, Plaintiffs: David W. Sanford, LEAD ATTORNEY, Brandon Jamison, Thomas J. Henderson, SANFORD HEISLER, LLP, Washington, DC.

For ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Defendant: Marsha Stelson Edney, LEAD ATTORNEY, Galen Nicholas Thorp, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; David W. Sanford, SANFORD HEISLER, LLP, Washington, DC; Joseph Wilfred Mead, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

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Granting in Part and Denying in Part Defendant's Motion for Partial Summary Judgment


Plaintiffs Herman Brewer and Fayette Reid, individually and on behalf of a class of similarly situated individuals, bring suit against their employer, the United States Marshals Service (" USMS" or " Defendant" ). Plaintiffs allege that Defendant engaged in a pattern or practice of racial discrimination against them and other African American Deputy United States Marshals in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq (" Title VII" ). Plaintiff, James Brooks, brings individual claims of racial discrimination, hostile work environment and retaliation under Title VII. [1] Defendant

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moves for partial summary judgment. For the following reasons, the Court grants in part and denies in part Defendant's motion.


Plaintiffs allege that USMS has failed to " revise[] its policies and practices" to " end the continuing pattern and practice of racial discrimination and remedy the effects of that discrimination," as " manifested by discriminatory employment practices with respect to promotions, transfers, assignments, training, awards, and the use of investigations." Am. Compl. ¶ ¶ 29, 34. Plaintiffs specifically challenge USMS's Merit Promotion System, alleging that the System's features impede the promotion of African American Deputy U.S. Marshals and favors the promotion of white Marshals over African American Marshals. Furthermore, Plaintiffs allege that " [t]he high degree of subjectivity in the assignment and lateral transfer process has a disparate impact on African American [Deputy U.S. Marshals]," affecting their ability " to secure promotions or career enhancing opportunities and experiences. Id. ¶ ¶ 55-56.

Plaintiffs also claim that they receive fewer career-enhancing training opportunities than their white counterparts because of " the high degree of subjectivity in how [Deputy U.S. Marshals] receive training." Id. ¶ 65. Similarly, Plaintiffs claim they have been discriminated against with respect to the distribution of awards. Id. ¶ 71. Finally, Plaintiffs allege that African American Deputy U.S. Marshals are " targeted by their white co-workers and supervisors for investigation by [the Office of Internal Investigation] based on frivolous allegations or for conduct that would not result in an investigation if committed by a white deputy." Id. ¶ 79.

Defendant has moved for summary judgment as to class claims that it discriminated against African-American Deputy Marshals in distributing awards, assignments, training, and promotions, and in conducting internal investigations. Def.'s Mot. at 1. Defendant also moves for summary judgment as to the individual claims asserted by Brooks for disparate treatment, hostile work environment, and retaliation. The Court first considers the parties' arguments and legal standards as to the class claims and will then turn to consider Brooks' individual claims. Further relevant facts are provided below as necessary.


A. Applicable Legal Standards

1. Summary Judgment

A motion for summary judgment should be granted only " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is " genuine" if " the evidence is such that a reasonable jury could return a verdict" for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if it could reasonably affect the outcome of the case. Id.

Where the movant does not bear the ultimate burden at trial, it need only satisfy the initial burden of demonstrating the absence of evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the movant bears the ultimate burden of persuasion, the movant must show the absence of a genuine issue of material fact by demonstrating each element of its claim or defense by sufficient, competent evidence. Id. at 331 (Brennan, J.,

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dissenting). Once the motion has been properly supported, the burden shifts to the nonmovant to show that " the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248.

The nonmoving party must go beyond the allegations in his pleading and provide " specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324. To satisfy the burden of providing specific facts, the nonmoving party must tender affidavits or other competent evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The factual record and inferences therefrom are generally viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, to be entitled to preferential review, the nonmoving party must respond with competent evidence and cannot support its arguments on the basis of conclusory, speculative, or inadmissible statements. [2] Celotex, 477 U.S. at 322 n.3. Further, the nonmoving party's evidence must be more than " mere reargument of its case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).

Finally, not every disputed factual issue is material in light of the substantive law that governs the case. " Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248-50 (noting that if the evidence is " merely colorable" or " not significantly probative," summary judgment may be granted).

2. Teamsters framework

Disparate treatment claims may involve " an isolated incident of discrimination against a single individual, or . . . allegations of a 'pattern or practice' of discrimination affecting an entire class of individuals." Aliotta v. Bair, 614 F.3d 556, 562, 392 U.S.App.D.C. 239 (D.C. Cir. 2010). Plaintiffs here allege a pattern or practice of discrimination. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), the Supreme Court set forth a specific framework for pattern or practice cases. The D.C. Circuit succinctly described the " liability" phase of the Teamsters framework as follows:

In the initial, or 'liability,' phase of a pattern or practice lawsuit, the analysis focuses on whether the unlawful discrimination has been the employer's regular or 'systemwide' pattern or practice. In order to make out a prima facie case, the plaintiffs must . . . establish by a preponderance of the evidence that discrimination was the company's standard operating procedure--the regular rather than the unusual practice. In this phase, the plaintiffs need not show each individual member of the class was a victim of the employer's discriminatory policy, since proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory

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policy was in force, was made in pursuit of that policy.

Aliotta v. Bair, 614 F.3d at 562-63.

" Once a prima facie case is established, the burden shifts to the employer to rebut the inference of discrimination by showing the employees' proof is either inaccurate or insignificant." Id. at 563. " [T]he employer's defense must counter the [plaintiffs'] showing of a discriminatory pattern rather than simply point out that the employer did not discriminate against certain individuals, for the question is whether a pattern or practice exists, not whether specific employees were subject to discrimination." EEOC v. Intn'l Profit Assocs., No. 01-C-4427, at *24 (N.D.Ill. March 16, 2007); see also Teamsters, 431 U.S. at 360 n.46 (" The employer's defense must, of course, be designed to meet the prima facie case of the [plaintiffs] . . . The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking." ).

If an employer fails to rebut the inference that arises from the plaintiffs' prima facie case, the district court may conclude that discrimination occurred. " [A] court's finding of a pattern or practice justifies an award of prospective relief," such as an injunction or court monitoring. Teamsters, 431 U.S. at 361 (internal quotations omitted).

If plaintiffs seek individual relief for the victims of discriminatory practice, the litigation proceeds to the " remedial stage where each class member must show individual harm." Aliotta v. Bair, 614 F.3d at 563. During this stage, " a district court must usually conduct additional proceedings . . . to determine the scope of the individual relief." Teamsters, 431 U.S. at 361. By this point in a pattern-or-practice case, the plaintiff would have already proved that the employer followed an employment policy of unlawful discrimination. Id. Therefore, the plaintiff need only show that he or she was " a potential victim of the proved discrimination," and the burden then shifts to the defendant " to demonstrate that the individual [class member] was denied an employment opportunity for lawful reasons" and " not based on its policy of discrimination." Id. at 363. " Any nondiscriminatory justification offered by the company will be subject to further evidence by the [plaintiffs] that the purported reason for the [adverse employment action] was in fact a pretext for unlawful discrimination." Id. at 362 n.50.

2. Class Certification -- Adequate Representation Requirement

" [A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Falcon, 457 U.S. at 161. Under Rule 23, " a class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting East Tex. Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)). The Rule 23 requirement that a class representative be an " adequate" representative often overlaps with the Court's inquiry into a party's standing since a putative class member who did not suffer the same injury as the putative class lacks standing to bring the class claim. Arnold v. Postmaster General, 667 F.Supp. 6, 20 (D.C. Cir. 1987).

In employment discrimination class actions, " the mere fact that a complaint

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alleges racial . . . discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination." Rodriguez, 431 U.S. at 405. " Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Falcon, 457 U.S. at 160.

" A party seeking class certification must affirmatively demonstrate his compliance with [] Rule [23]," by presenting the court with facts that he meets the Rule's requirements. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2552. Therefore, a preliminary inquiry into the merits of a pattern-or-practice suit is sometimes necessary to determine whether Rule 23 requirements are satisfied. Id. Indeed, the Advisory Committee recognized that the district court may need to allow for " discovery in aid of the certification decision," even though such discovery might overlap with the " merits discovery." See Rule 23, Notes of Advisory Committee on 2003 amendments; see also Rodriguez, 431 U.S. at 405 n.12 (stating that " the decision whether the named plaintiffs should represent a class is appropriately made on the full record" ).

If a specific plaintiff has not suffered the injury as a result of the alleged discriminatory practice, then he or she is " simply not eligible to represent a class of persons who did allegedly suffer injury." Rodriguez, 431 U.S. at 405. This is because " [o]ne whose own claim is a loser from the start knows that he has nothing to gain from the victory of the class, and so he has little incentive to assist or cooperate in the litigation; the case is then a pure class action lawyer's suit." Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999). " The point is not that a plaintiff is disqualified as class representative if he may fail to prove his case or if the defendant may have a good defense. . . . But if [a ...

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