Segar v. Smith, s. 82-1541

Decision Date26 June 1984
Docket Number82-1590,Nos. 82-1541,s. 82-1541
Parties35 Fair Empl.Prac.Cas. 31, 34 Empl. Prac. Dec. P 34,488, 238 U.S.App.D.C. 103 Henry W. SEGAR, et al. v. William French SMITH, Attorney General, et al., Appellants. Henry W. SEGAR et al., Cross-Appellants v. William French SMITH, Attorney General, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Robert C. Seldon, Asst. U.S. Atty., and Charles Cooper, Deputy Asst. Atty. Gen., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the briefs were filed, and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants in No. 82-1541 and cross-appellants in No. 82-1590.

William T. Lake, Washington, D.C., with whom Thomas J. Sugrue and Stephen W. Kidder, Washington, D.C., were on the brief, for appellees in No. 82-1541 and cross-appellants in No. 82-1590.

Before WRIGHT, WALD, and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

J. SKELLY WRIGHT, Circuit Judge:

Title VII of the Civil Rights Act of 1964 1 proclaims one of this nation's most fundamental, if yet unrealized, principles: a person shall not be denied full equality of employment opportunity on account of race, color, religion, sex, or national origin. Title VII bars both intentional discrimination and artificial, arbitrary, or unnecessary barriers to equal opportunity. 2 In this case we review a decision of the United States District Court for the District of Columbia, Segar v. Civiletti, 508 F.Supp. 690 (D.D.C.1981), holding that the federal Drug Enforcement Agency (DEA) had engaged in a pattern or practice of discrimination against its black agents in violation of Title VII. A class comprising black agents initiated this suit in 1977 and the case came to trial in 1979. Finding that DEA had discriminated against black agents in salary, promotions, initial (GS) grade assignments, work assignments, supervisory evaluations, and imposition of discipline, 508 F.Supp. at 711-715, the District Court ordered a comprehensive remedial scheme consisting of a class-wide backpay award, promotion goals and timetables to ensure that qualified black agents received promotions to the upper levels of DEA, and a class-wide frontpay award to compensate such qualified agents while they awaited the promotions they deserved. In the course of the proceedings the court also denied plaintiffs' request for prejudgment interest and issued a preliminary injunction barring transfer or demotion of Carl Jackson (the Jackson injunction), a black agent who was the subject of adverse employment decisions immediately after his testimony for plaintiffs in this lawsuit.

On appeal DEA challenges the liability determination, the remedial scheme, and the Jackson injunction. Plaintiffs cross-appeal the denial of prejudgment interest. As to the liability determination, DEA urges that the trial court erred in finding that plaintiffs had presented sufficient probative evidence to support any inference of discrimination at DEA, and urges that DEA had in any event effectively rebutted plaintiffs' showing. As to the remedial scheme, DEA argues that class-wide relief was inappropriate and that imposition of promotion goals and timetables both exceeded the court's remedial authority under Title VII and violated the equal protection component of the Fifth Amendment Due Process Clause. DEA also argues that Carl Jackson did not make a showing of retaliation sufficient to justify the preliminary injunction.

To resolve this appeal we have had to plumb some of the deepest complexities of Title VII adjudication. After careful review, we affirm the District Court's liability determination in its entirety. We also affirm the trial court's decision to use a class-wide backpay remedy, but we vacate the backpay formula imposed and remand for reformulation of the particular backpay award. We also vacate the part of the District Court's remedy that mandates promotion goals and timetables. We do not hold that such remedies exceed a court's remedial authority under Title VII. Nor do we hold that such remedies violate the Constitution. Nonetheless, we find that the District Court's particular order of goals and timetables was not appropriate on the current factual record. Because the frontpay remedy was specifically linked to the promotion goals and timetables, we vacate that part of the remedial order as well, and remand to the District Court for further consideration of appropriate remedies. 3 We affirm the preliminary injunction against demotion or transfer of Carl Jackson and we expect the District Court to undertake resolution of the status of the Jackson injunction on remand. We affirm the trial court's denial of prejudgment interest.

I. BACKGROUND

DEA, an agency formed in 1973 within the Justice Department, enforces this nation's federal criminal laws concerning the illegal sale, distribution, and use of drugs. Establishing DEA, the federal government sought to consolidate drug enforcement efforts that had theretofore been spread among several agencies. "Special agents" carry on the bulk of DEA's criminal investigative work. DEA employs about 2,000 such agents, and as of 1978 seven percent were black. Special agents perform surveillance of suspected drug dealers, transact "buys" of drugs as evidence for prosecutions, do related undercover work, develop cases for prosecution by United States Attorneys, and, depending on their rank, supervise other special agents. Findings of Fact (Findings) paragraphs 1-2, 508 F.Supp. at 693-695.

The District Court made extensive findings of fact concerning DEA's employment practices. See Findings paragraphs 1-51, 508 F.Supp. at 692-711. Though we need not rehash the factual context of this case in its entirety, we will review the facts particularly pertinent to the issues on appeal.

A. DEA's Personnel Requirements

Hiring. The Civil Service Commission Handbook establishes the minimum entry level requirements for special agents. Depending on qualifications, special agents will enter at either GS-7 or GS-9. The requirements for entry at GS-7 are three years of general experience and one year of specialized experience. The requirements for GS-9 are three years of general experience and two years of specialized experience. 4 In addition, special agents are Work Assignments. Special agents carry out the variety of assignments described above. Race influences the location of an agent's assignment. All other things being equal, DEA will assign black agents to areas where a large percentage of the suspected violators are black. Race also influences the type of work agents receive. Black agents tend to perform a disproportionately large amount of undercover work. DEA generally infiltrates drug networks from the bottom up, and operates on the assumption that black agents will be more readily able to infiltrate organizations consisting primarily of blacks. The nature of an agent's work assignments will have an important bearing on the agent's prospects for promotion. Though some undercover work is desirable, a surfeit of such work injures an agent's promotion opportunities because the agent is unable to obtain the breadth of experience needed for promotions. Findings p 23, 508 F.Supp. at 705.

defined as criminal investigators, and this classification requires that one year of their prior specialized experience be in law enforcement or comparable work. 5

Promotions. At DEA promotions from GS-7 to GS-9, from GS-9 to GS-11, and from GS-11 to GS-12 are noncompetitive. A special agent receives a promotion upon completion of one year of service in grade, recommendation by the agent's group supervisor, concurrence by a second level supervisor, and approval by a DEA regional director.

Promotions from GS-12 up through GS-18, the highest GS level at DEA, are competitive agency-wide. To receive such a promotion an agent must satisfy the minimum in-grade requirement, be placed on the "best qualified" list by the appropriate rating and ranking board, and be selected by the appropriate selecting official. In making determinations the rating and ranking boards rely primarily on the agent's most recent performance appraisal, information on disciplinary action within the last two years, and the agent's application and profile sheet. Those agents chosen for the best qualified list are then ranked numerically on a series of performance factors. 6 Rating and ranking boards have not been provided with any particular guidance for assigning numerical values to various aspects of an agent's performance. Findings p 4, 508 F.Supp. at 695.

B. This Lawsuit

In January 1977 two black special agents of DEA, and an association representing all black special agents, brought suit alleging that DEA had engaged in a pattern or practice of racial discrimination against black special agents in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. Sec. 2000e-16 (1976 & Supp. V 1981). These agents alleged discrimination in recruitment, hiring, initial grade assignments, salary, work assignments, evaluations, discipline, and promotions. See Complaint, Joint Appendix (JA) 22.

On September 9, 1977 the trial court, pursuant to Federal Rule of Civil Procedure 23(b)(2), certified the class of all blacks who then served or had had been discharged as special agents at DEA, and who had applied for positions or would in 1. The plaintiffs' case. The plaintiffs presented a range of statistical and anecdotal evidence of discrimination. The statistical evidence included several...

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