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Segar v. Barr

United States District Court, District of Columbia

June 25, 2019

HENRY SEGAR, et al., Plaintiffs,
v.
WILLIAM P. BARR, as U.S. Attorney General, Defendant.

          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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