UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HENRY SEGAR, et al.,

Plaintiffs,

v. Civ. Action No. 77-0081 (EGS)

WILLIAM P. BARR, as U.S. Attorney General,

Defendant.

MEMORANDUM OPINION

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,

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,

(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.

After a two-week trial, the Court concluded that the DEA

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF header page number, not the page number of the filed document.

2 discriminated against the class across a range of employment

practices.

at 712–15. Relevant to this case, the Court found

that the DEA discriminated against African-American agents with

respect to promotions.

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

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.

In addition to establishing the

Working Group, the parties also submitted proposals for further

relief.

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,

2 Promotions from GS-7 to GS-9 and from GS-9 to GS-11 were effectively automatic. See Civiletti,

.

3 No. 77-civ-81,

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.

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,

(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”).

Agents on the BQ list were all considered equally as

qualified for advancement to the vacant position.

The

Special Agent in Charge (“SAC”) for the division with the

4 vacancy would submit a short list of recommended employees.

The Career Board, aided with these short lists, then made the

final determination about who was selected for a vacancy.

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

3 Although African-American agents were underrepresented on the short lists, the disparate impact was not always visible in promotion numbers because “the Career Board tend[ed] to ‘overselect’ African-American agents when they appear on SAC short lists, and also when the Career Board bypasses the SAC short list." Sept. 27, 1999 Opinion, ECF No. 35 at 5 (hard copy).

5 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

6 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

7 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,

(D.D.C. 2013)(quoting Morgan v. Astrue, Case No.

08–2133,

, 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,

, 539 n.3 (D.C. Cir. 1999).

III. Analysis

As stated above, the R&R provides several recommendations

as to what actions are necessary to bring the DEA into

compliance with the Court’s order to end discrimination in its

promotion practices. The recommendations are as follows: (1)

cease all promotions to Grades 13, 14, and 15; (2) reconstitute

the Working Group; (3) appoint a 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.

8 Plaintiffs agree with all the recommendations of the

Magistrate Judge. The defendant initially objected to the

majority of the recommendations, but has since agreed to comply

with several of them. See generally Joint Status Report (“JSR”),

ECF No. 416. The Court will first briefly discuss the

recommendations to which the parties agree; and then turn to the

contested issues in this case.

A. Resolved Objections

The parties agree that the objections to the R&R’s

recommendation to reconstitute the Working Group and for

continued oversight of DEA compliance have been resolved. The

Court additionally finds that the parties do not have a genuine

dispute about the process for awarding attorney’s fees in this

case. The Court will briefly explain the recommendations for

these resolved objections.

1. Reconstitute the Working Group

The R&R found that the Working Group was integral to the

“final resolution of the issues that separate the parties,” and

that it was no longer functioning. R&R, ECF No. 395 at 9–10. The

parties agree with the recommendation that the Working Group

should continue to function in its intended role. To that end,

this Court granted plaintiffs’ motion for Dr. Suzanne Tsacoumis

to serve as their representative on the Working Group. See

Minute Order of October 28, 2016 (granting motion to appoint Dr.

9 Tsacoumis to the Working Group). Furthermore, in August of 2017,

the parties moved to appoint Dr. Margaret Barton to the Working

Group. See ECF No. 418. In that motion, the parties explained

that with the addition of Dr. Barton, the Working Group would be

comprised of the required three members and would then be fully

operational. Id. at 2. The Court granted the motion and at this

time, to the Court’s knowledge, the Working Group is fully

functioning. In light of these developments the Court adopts the

R&R’s recommendation to reconstitute the Working Group.

2. Continued Oversight of DEA Compliance

The R&R recommends continued oversight and monitoring of

the DEA to ensure that it complies with the Court’s Order. R&R,

ECF No. 395 at 11. To that end, the R&R recommends annual

reports from the EEOC and continued monitoring of compliance

with the Court’s Order to cease discrimination. Id. Defendant

does not object to this recommendation and states that it has

continued to produce annual reports through the DEA’s EEO Office

and the EEOMC has monitored DEA’s compliance. See JSR, ECF No.

416 at 6. The Court will adopt this recommendation and order

oversight of the DEA’s compliance with the 1982 Order until a

further order of the Court.

3. Attorney’s Fees

The R&R recommends that the Court order plaintiffs to

provide a detailed request for attorney’s fees and costs

10 incurred from June 1996 to present. R&R, ECF No. 395 at 13.

Defendant then will have the opportunity to either object to the

amount requested if the parties cannot reach an agreement on the

fee award. Id.

Plaintiffs believe that this recommendation remains

contested, however the parties appear to be in a heated

agreement over this issue. Defendant has not argued that fees

are impermissible in this case; rather defendant has stated that

it does not object to an award of fees if plaintiffs are viewed

as prevailing parties. JSR, ECF No. 416 at 4. Defendant’s only

limitation is that “any such fee request would need to be

evaluated for reasonableness, proportionality and for other . .

. legal and equitable considerations.” Id. Accordingly,

defendant agrees with the recommendation that plaintiffs submit

a detailed fee request. Id. Therefore the Court adopts the

recommendation and orders plaintiffs to provide to defendant a

detailed request for attorney’s fees from the period of June

1996 to present. Defendant shall thereafter file an appropriate

response.

B. Contested Objections

The remaining issues in this case are the R&R’s

recommendations to (1) implement a prior agreed upon procedure

for promotions to Grades 14 and 15 which was approved by the

Working Group; (2) appoint a third-party vendor to validate any

11 proposed promotion practices; (3) determine the appropriate

method and award for backpay; and (4) to implement appropriate

enforcement mechanisms (i.e., freezing all promotions until

compliance and imposing a $10,000 per day fine). The Court

addresses the contested issues in this case in turn.

1. The Proper Policy for Promotions to Grades 14 and 15

The R&R recommends that the parties implement the agreed

upon promotion practices approved by the Working Group in 2008

(“2008 Plan”) that were found to be validated and non-

discriminatory. R&R, ECF No. 395 at 10–11. Defendant argues that

this recommendation is erroneous for two principal reasons. The

first reason is that the R&R is mistaken because the 2008 Plan

was not a plan to which the parties agreed, but rather a

counter-proposal by plaintiffs that the DEA did not accept.

Def.’s Obj., ECF No. 399 at 13–14. Defendant argues that the

appropriate promotion policy, the one that they did agree to, is

the October 2003 plan that was developed and validated by Elaine

Pulakos (“Pulakos Plan”) a third-party vendor. Id. at 14–15.

Defendant’s second argument is that the 2008 Plan cannot be

reliably shown to be the plan that the Working Group approved.

Id. at 19–20. Because the 2008 plan was never validated or

approved by the Working Group, the defendant argues, using that

plan would be a violation of the R&R’s own recommendation for a

promotion process approved by the Working Group. See R&R, ECF

12 No. 395 at 10–11. Accordingly, defendant argues it would be

reversible error to adopt a recommendation based on a clearly

erroneous assessment of the evidence. Def.’s Obj., ECF No. 399

at 16.

Plaintiffs counter that an agreement on the plan is not a

requirement of the Court’s Order for defendant to adopt hiring

plans that are non-discriminatory and validated. Pls.’ Resp.,

ECF 401 at 5. Plaintiffs further note that although the Pulakos

and 2008 plans are “substantially the same with respect to the

essential elements of the promotion process,” the Pulakos Plan

fails to outline the criteria used to rate candidates for

promotions, and does not include specific time-frames or

deadlines for the different steps in the promotion process. Id.

at 6.

The Court declines to adopt the R&R’s recommendation of

implementing the 2008 Plan. The R&R refers to the 2008 Plan as

one that was agreed upon by the parties and the Working Group,

and validated, presumably by a third party, but the Court can

discern no evidence in the record that the parties came to an

agreement on the plan or that it was ever validated. Although an

agreement on the particulars of a plan is not a requirement of

the Court’s Order, the R&R’s recommendation that the defendant

implement a validated plan that the parties agreed to is a sound

one. More important to the Court’s decision is that the Court

13 does not see any evidence that the 2008 plan was validated. This

Court has previously ordered that defendant instill a non-

discriminatory process that is validated, and to the extent the

parties agree on a plan that meets that requirement, the Court

is inclined to allow the implementation of that plan.

The question remains as to the appropriate plan for

promotions to Grades 14 and 15. Several factors militate towards

using the Pulakos Plan. First, the Pulakos Plan has gone through

the validation process whereas there is no evidence that the

2008 Plan has been validated. Second, the Pulakos Plan was

created with the input of plaintiffs, the Working Group, and DEA

management. Def.’s Obj., ECF No. 399 at 6. Plaintiffs concede

that the Pulakos Plan is a “significant improvement over the

status quo” and that the Pulakos Plan and 2008 Plan “are

substantially the same with respect to the essential elements of

the promotion process.” Pls.’ Resp., ECF 401 at 4, 6.

Because the Pulakos Plan is the only plan that meets the

requirements of a validated non-discriminatory plan, the Court

is inclined to order the use of that Plan with a few

modifications. There are several deficiencies in the plan such

as its lack of specific time frames and deadlines. Accordingly,

the Court orders that defendant submit a modified plan to

plaintiffs and the Working Group which includes specific time

frames and deadlines for the various steps in the promotion

14 process, and rating criteria to evaluate promotion candidates’

accomplishments. 4 If plaintiffs and the Working Group concur with

the modified plan, the parties shall request implementation of

the plan for future promotion practices, subject to a decision

by the parties as to whether the plan requires further

validation.

2. Appointing a Third-Party Vendor for Validation

Defendant agrees that if changes are made to the Pulakos

Plan that would require separate validation, defendant is

agreeable to working with plaintiffs “to identify a mutually

acceptable third-party vendor to validate the plan.” JSR, ECF

No. 416 at 6. Therefore, after the modifications to the Pulakos

Plan are completed, the parties and the Working Group are

directed to meet and confer to determine if the modified plan

should be re-validated. The Court notes that the fact that the

Pulakos Plan was validated at its development does not end the

issue. As plaintiffs point out, a plan that was validated at one

point needs to be periodically reviewed to determine whether it

continues to be valid, as is customary with other validated

plans. Pls.’ Resp., ECF No. 401 at 16.

4 Defendant has already made undefined changes to the Pulakos Plan in order to “(1) bring the plan more in line with technological advances . . . and (2) enhance the fairness of process through added transparency and objectivity.” JSR, ECF No. 416 at 5. This Memorandum Opinion and accompanying Order is not intended to supplant those modifications.

15 3. Individual Relief

The R&R recommends individual relief for plaintiffs Grades

11 and below, and class-wide relief for Grades 14 and 15 for

backpay owed due to discrimination. The parties agree that any

individuals who claimed discrimination at Grades 11 and below

have already stipulated to procedures for their compensation.

Pls.’ Resp., ECF No. 401 at 7 n.6. Therefore, this Court will

not adopt the R&R’s recommendation to provide a hearing on the

issue of individual relief for such plaintiffs.

The parties disagree about the scope of relief, if any, for

employees claiming discrimination in promotions to Grades 14 and

15. The R&R recommends that plaintiffs submit a proposed damages

model and calculation for these plaintiffs, that defendant

respond to that model, and a discovery period be held for 30

days. R&R, ECF No. 395 at 12–13. If the parties cannot reach an

agreement on the damages model, the R&R recommends the Court

hold a hearing on the issue. Id.

Defendant argues that the issue of damages for employees

claiming violations at the GS-14 and GS-15 levels is premature

because, according to defendant, there has been no finding of

liability on that issue. Def.’s Obj., ECF No. 399 at 21–22.

Specifically, defendant argues that because the Court only found

a disparate impact in the use of SAC short list recommendations

16 to select employees, but not in the actual selection of

employees as a group, therefore there is no real violation of

Title VII or need for individual relief. Id. Absent such a

finding of discrimination, defendant argues, the Court should

not allow discovery or calculation of damages. Id.

Defendant’s arguments are identical to the arguments

rejected by this Court in its September 27, 1999 Opinion. See

Sept. 21, 1999 Opinion, ECF No. 35 (hard copy). As the Court

stated nearly 20 years ago, “[t]he fact that there may be no

ultimate disparate impact on the group of African-American

agents eligible for promotion is irrelevant if Plaintiffs can

show that individual African-American agents have been denied

promotion opportunities by an unlawful selection device, i.e.

reliance on SAC short lists.” Id. at 6 (emphasis added)(citing

Connecticut v. Teal,

(1982)). In other words,

once plaintiffs have shown that defendant has engaged in an

unlawful selection device, it is no defense that defendant,

through some counteracting measure, has compensated for this

illegal method by “hiring or promoting a sufficient number of

black employees to reach a nondiscriminatory ‘bottom line.’”

Teal,

.

Connecticut v. Teal is the seminal case on this issue.

Teal concerned a selection process for supervisory positions

which required a written examination that was not shown to be

17 related to job performance.

. Although the

written examination caused a disparate impact on African-

American candidates the defendant applied an “affirmative

action” program before final decisions were made which

compensated for that disparate impact and was implemented “in

order to ensure a significant number of minority supervisors”

were selected.

. Defendant argued that, despite the

alleged discriminatory practice--requiring a test that has not

been shown to be job-related--the general promotion process did

not have an adverse impact on African-American candidates as a

group, and therefore there could not be a violation of Title VII

because their “bottom-line” promotion numbers were not

discriminatory.

The Court rejected this “bottom-line result” theory. After

holding that the practice at issue, an exam that bars a

disparate number of black employees from consideration for

promotion that has not been shown to be job related, presents a

claim for a violation of Title VII, the Court explained that any

“bottom-line” defense was unworkable because the Supreme Court

had never read Title VII “as requiring the focus to be placed .

. . on the overall number of minority or female applicants

actually hired or promoted.”

. Rather, the focus of

the Act is on “employment and promotion requirements that create

a discriminatory bar to opportunities.”

In other words,

18 because the “principal focus of the statute is the protection of

the individual employee, rather than the protection of the

minority group as a whole,” an employer is still liable for a

Title VII violation if it uses an unlawful selection device

which affects individual employees, notwithstanding the fact

that there may be some counteracting process on the back end

that protects the group as a whole. See

In this case, the Court has already found that the use of

the SAC short list had a disparate impact on African-American

agents and thereby violated Title VII and the Court’s remedial

order. Sept. 27, 1999 Opinion, ECF No. 35 at 22 (hard copy).

Relying on Teal, the Court held that plaintiffs had shown that

the use of the SAC short list had a disparate impact on African-

American agents, and therefore there was a violation of Title

VII notwithstanding the fact that the Career Board that

ultimately made the decisions tried to counteract the

discrimination by favoring the few African-American employees

who actually made it on the list. See

Thus the Court found a

violation of Title VII and its remedial order and directed the

parties to brief the issue of individual relief.

The

defendant’s claim that there has been no liability finding in

the Court’s September 1999 Opinion, is either a fundamental

misunderstanding of the Court’s Memorandum Opinion, the law

supporting the Opinion, or both.

19 Accordingly, Court will adopt the R&R’s recommendation on

this issue and will order plaintiffs to state with certainty the

damage model they propose, and allow defendant to either concede

the validity of the model or file an opposition. If defendant

does file an opposition, the Court will order a discovery period

including depositions of experts. If there is no agreement after

the discovery period, the damages issue shall be resolved by the

Court.

4. Appropriate Enforcement Mechanisms

The R&R recommends several measures as appropriate to

ensure enforcement with the procedures outlined above. The

measures are to freeze promotions to Grades 13, 14, and 15,

immediately until the validated procedures have been put in

place; and a civil penalty of $10,000 per day if defendant fails

to comply with the Court’s Order. R&R, ECF No. 395 at 7.

In light of the fact that defendant has reinstated the pre-

2004 promotion system for promotions to Grade 13, and has taken

steps to implement the validated Pulakos Plan as to Grades 14

and 15, no civil monetary penalty or an order freezing

promotions is warranted at this time. Indeed, plaintiffs agree

that such sanctions would be unnecessary if defendant

implemented those measures. Pls.’ Resp., ECF No. 401 at 12.

IV. Conclusion

For the foregoing reasons the court adopts in part the R&R.

20 An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 25, 2019

21