MEMORANDUM OPINION
EMMET
G. SULLIVAN, UNITED STATES DISTRICT JUDGE
Several
decades ago this Court concluded that the Drug Enforcement
Agency (“DEA”) discriminated against
African-American special agents in several areas of
employment including, but not limited to, its promotion
practices. The Court subsequently enjoined the DEA from
discriminating against these agents, and, among other things,
required the DEA to “insure that [its promotion
practices] as operated have neither a disparate impact on
Black agents nor effectuate disparate treatment of Black
agents.” Segar v. Smith, Civ. Action No.
77-civ-81, 1982 WL 214 at *1 (D.D.C. Feb. 17, 1982). Over the
course of several years, the parties have negotiated a series
of stipulations related to remedial measures in an attempt to
comply with the Court's order.
Pending
before the Court is plaintiffs' motion for compliance
with this Court's order for the DEA to craft a
nondiscriminatory promotion practice. After the parties
narrowed their disagreement to a few remaining issues, the
motion was referred to Magistrate Judge John M. Facciola for
a Report and Recommendation (“R&R”). The
R&R recommends several remedial measures designed to
ensure that the DEA is in compliance with the Court's
Order to cease discrimination in its promotion practices.
See R&R, ECF No. 395.
Defendant
has objected to several of those remedial measures. Upon
consideration of the R&R, defendant's objections,
plaintiffs' response to those objections, and the
relevant law, the Court adopts in part the R&R.
I.
Background
The
Court will not restate the full factual background of this
case, which is set forth in the R&R and in the
Court's opinion in Segar v. Civiletti, 508
F.Supp. 690 (D.D.C. 1981). See R&R, ECF No. 395
at 1-5.[1] By way of general overview, this case
concerns promotion policies by the DEA that were found to be
discriminatory against African-American special agents.
See Civiletti, 508 F.Supp. at 693-95. A class of
these agents, alleging violations of Title VII, was certified
by this Court. Id. After a two-week trial, the Court
concluded that the DEA discriminated against the class across
a range of employment practices. Id. at 712-15.
Relevant to this case, the Court found that the DEA
discriminated against African-American agents with respect to
promotions. Id. at 714-15. The Court enjoined the
DEA from engaging in any discriminatory practices in its
promotions and required the DEA to implement
nondiscriminatory promotion systems from promotion Grades 12
and above.[2] Id.
With
the goal of complying with the Court's order, the parties
agreed to create “the Working Group, ” a panel of
professionals charged with developing and recommending
promotion systems in line with that order. R&R, ECF No.
395 at 2. The Working Group was to be comprised of three
members: (1) a representative from the Office of Personnel
Management (“OPM”); (2) a private contractor
retained by OPM; and (3) an expert selected by plaintiffs.
Id. In addition to establishing the Working Group,
the parties also submitted proposals for further relief.
Id.
After
considering the parties' proposals, the Court ruled that
the DEA needed to develop and implement effective,
nondiscriminatory promotion systems which “insure that
the new systems neither have a disparate impact on black
agents nor effectuate disparate treatment of black
agents.” Segar v. Smith, No. 77-civ-81, 1982
WL 214 at *4 (D.D.C. Feb. 17, 1982). Accordingly, the Court
ordered the creation of the Equal Employment Opportunity
Monitoring Committee (EEOMC), a group tasked with monitoring
the DEA's compliance with the Court's Order.
Id. at *8-9.
The
Court also held that plaintiffs claiming harm for
discriminatory promotion practices at the GS 7-9 levels were
entitled to individual hearings to determine backpay.
Id. at *9. For agents at Grade 11 and above,
however, the Court held that class-wide relief was the
appropriate award. Id. at *2-5. The Court of Appeals
for the District of Columbia (“D.C. Circuit”)
affirmed the Court's liability determination and the
award for class-wide backpay, but vacated portions of the
order that are not relevant to this case. Segar v.
Smith, 738 F.2d 1249 (D.C. Cir. 1984).
Relevant
to this motion, the DEA later implemented the Special Agent
Promotion Process (“SAPP”), which was a new
system for promotions for Grade 14 and 15 agents. Opinion
dated Sep. 27, 1999 (“Sept. 27, 1999 Opinion”),
ECF No. 35 at 2 (hard copy). Under SAPP, the agents who score
the highest on the SAPP evaluation system were included on a
best qualified list (“BQ list”). Id.
Agents on the BQ list were all considered equally as
qualified for advancement to the vacant position.
Id. The Special Agent in Charge (“SAC”)
for the division with the vacancy would submit a short list
of recommended employees. Id. The Career Board,
aided with these short lists, then made the final
determination about who was selected for a vacancy.
Id. There was a “very high correlation between
SAC short list recommendations and Career Board
selections.” Id. at 7.
Plaintiffs
filed a motion for compliance with the Court's Order
arguing that use of the SAC short list was a violation of
Title VII because it had a disparate impact on
African-American special agents. Id. at 1-4. The
Court agreed. The Court reasoned that although the SAPP
program as a whole did not produce a significant disparity
between promotions amongst African-American agents and other
agents, the evidence showed that the SAC short list method
had adversely affected promotion opportunities for
African-American agents. Id. at 6-22. Because these
agents were discriminated against because of their race,
there was a violation of the Title VII and the Court's
Order, regardless of whether the bottom-line number of
employees receiving promotions did not show the disparate
impact. Id. at 6-7, 22.[3] Accordingly, the Court
enjoined the DEA from use of the SAC short list method.
Id. at 22. The Court also directed the parties to
brief the issue “of fashioning individual relief”
for plaintiffs who were discriminated against by the use of
the SAC short list. Id.
The
parties filed a joint stipulation recommending an interim
method of promotions for Grade 14 and 15 promotions which the
Court approved. See R&R, ECF No. 395 at 3-4.
With regard to the Grade 13 promotions, in 2004 the DEA
changed the promotion policy from a pre-2004 policy, which
the Working Group found could be validated, to a policy that
the Working Group was not aware of. Id. at 4.
Accordingly, the new Grade 13 promotion policy was not
validated nor approved by the Working Group. Id.
Plaintiffs
then filed the motion for compliance at issue in this case,
alleging that several of the DEA's actions, including the
DEA's changed policy for promotions to Grade 13, violated
the Court's Orders. Pls.' Mot. for Compliance, ECF
No. 303 at 7. Defendant filed a motion to vacate the motion
for compliance, arguing that it had fully complied with the
Court's orders. See Mot. to Vacate, ECF Nos. 315
and 316. The motion was referred to a magistrate judge for a
R&R.
Magistrate
Judge Facciola held a hearing in which the parties presented
expert testimony and other evidence in support of their
respective motions. Judge Facciola concluded that plaintiffs
were entitled to relief and outlined several measures that
would bring defendant into compliance with the Court's
order. The measures were as follows: (1) cease all promotions
to Grades 13, 14, and 15; (2) reconstitute the Working Group;
(3) appoint at third-party vendor capable of validating
promotion procedures; (4) reinstate the pre-2004 policy for
promotions to Grade 13; (5) implement a prior agreed upon
procedure for promotions to Grades 14 and 15 which was
approved by the Working Group; (6) continue oversight of DEA
compliance with the Order; (7) award relief for claims of
backpay for DEA agents discriminated against in promotions;
and (8) award attorney's fees to plaintiffs. R&R, ECF
No. 395 at 9-14.
Defendant
has objected to several of those remedial measures.
Def.'s Obj., ECF No. 399. The objections are ripe for
review.
II.
Standard of Review
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered a recommended disposition, a
party may file specific written objections. The district
court “must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to, ” and “may accept, reject, or modify
the recommended disposition.” Fed.R.Civ.P. 72(b)(3).
Proper objections “shall specifically identify the
portions of the proposed findings and recommendations to
which objection is made and the basis for objection.”
Local Civ. R. 72.3(b). “As numerous courts have held,
objections which merely rehash an argument presented and
considered by the magistrate judge are not ‘properly
objected to' and are therefore not entitled to de novo
review.” Shurtleff v. U.S. Envtl. Prot.
Agency, 991 F.Supp.2d 1, 8 (D.D.C. 2013)(quoting
Morgan v. Astrue, No. 08-2133, 2009 WL 3541001, at
*3 (E.D. Pa. Oct. 30, 2009) (collecting cases)). Likewise, a
court need not consider cursory objections made only in a
footnote. Hutchins v. District of Columbia, 188 F.3d
531, 539 n.3 (D.C. Cir. 1999).
III.
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