Stewart v. Rubin

Decision Date21 November 1996
Docket NumberCivil Action No. 90-2841 (RCL).
Citation948 F.Supp. 1077
PartiesLarry D. STEWART, et al., Plaintiffs, v. Robert E. RUBIN, Secretary Department of the Treasury, Defendant.
CourtU.S. District Court — District of Columbia

David J. Shaffer, James W. Morrison, Arter & Hadden, Washington, DC, for plaintiffs.

Roderick L. Thomas, Assistant U.S. Attorney, Washington, DC, for defendant.

Jose M. Herrera, Miami, FL, for movantAFT Hispanic Agents Association.

Thomas E. Clay, P.S.C., Louisville, KY, for classmember — Elsie K. Davenport.

Robeert E. Sanders, Washington, DC, for movantsJames L. Jorgensen, Vincent C. Noble, Leonora Magaletta, Michael S. Russell, Richard Issa, Frank Napoli.


LAMBERTH, District Judge.

A. Findings As to Fairness and Class Certification

1. This class action lawsuit was brought against the U.S. Department of Treasury's Bureau of Alcohol, Tobacco, and Firearms ("ATF"), under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e-16 et seq. Plaintiffs, fifteen (15) current and former African-American GS-1811 series Special Agents,1 allege class-wide racial discrimination and retaliation by ATF in a variety of personnel practices. Specifically, Plaintiffs allege that ATF discriminated on the basis of race in promotions, discipline, awards, assignments (including undercover assignments), special teams, Schedule A hiring,2 hostile work environment, terminations, employment performance evaluations, training assignments, and retaliated against them for their equal employment opportunity ("EEO") activities. Plaintiffs allege both a disparate impact and disparate treatment case. As relief, Plaintiffs seek widespread injunctive relief, retroactive promotions and tenure, back pay, compensatory damages and attorneys' fees and costs.

2. This case was filed in this Court in November of 1990 on behalf of two African-American ATF Special Agents, Larry D. Stewart and Mark Jones. Plaintiffs sought leave to file an Amended Complaint in January 1993, adding thirteen more named Plaintiffs and including additional alleged discriminatory acts and practices. This Court granted Plaintiffs' Motion to Amend. Extensive discovery was undertaken by the parties, including written discovery and the depositions of all fifteen named Plaintiffs, the then-current Director of ATF and the statistical experts. In July 1994, the Plaintiffs filed their Motion for Class Certification, which was supported by statistical analysis, expert reports and the affidavits of about fifty (50) African-American ATF Special Agents. The Defendants also filed a comprehensive opposition to Class Certification that was supported by expert reports and statistical analysis.

3. In August 1994, the Court referred the case to the District Court's Alternative Dispute Resolution program ("ADR"). Early in the mediation, ATF decided to hire an outside expert to assist the agency to revise ATF's Law Enforcement Career Development Plan. Information concerning the hiring of this expert, its impact on ATF's personnel systems, and the fact of the pendency of the mediation was disseminated by the Director of ATF to all employees throughout the agency by two teletypes.

4. Intensive settlement negotiations, through the mediation process, followed. The mediation included the participation of then-Undersecretary of the Treasury, Ronald Noble, other senior Treasury officials, the Director of ATF, defense counsel, Plaintiffs' counsel and class representatives. The parties, after numerous face-to-face meetings and teleconferences, substantial drafting, and intense negotiations for over one and one-half years, reached a proposed Settlement Agreement, which was submitted to the Court for preliminary review and approval.

5. By Order filed July 9, 1996, the Court granted preliminary approval of the parties' Settlement Agreement. Pursuant to that Order, ATF took steps designed to notify all class member and all current ATF Special Agents of the Settlement Agreement, the Court's Fairness Hearing and the deadline for filing objections. See Def.Resp. at Exhibit 1.

6. The Settlement Agreement resolves all of Plaintiffs' claims, including attorneys' fees and costs. The Settlement Agreement provides individual monetary payments, sets forth a procedure for providing individualized non-monetary equitable relief, provides for the development of a new promotion assessment system, and provides for additional equitable relief in the areas of performance appraisals, training, transfers, awards, bonuses, discipline, and assignments to special teams. The essential features of the agreement as summarized by Defendant are as follows:

A. A total of $4.7 million will be awarded to the class as a whole, which may be awardable to each individual as determined according to two formulas. One formula is designed to provide the plaintiffs compensation for, among other things, backpay and front pay. Accordingly, $675,000 of the $4.7 million will be placed by plaintiffs' counsel into a fund ("The Backpay Fund") to satisfy those claims. The second formula is designed to take into account, among other things, claims for compensatory damages based upon emotional distress, mental anguish, and pain and suffering. The remaining $4.025 million of the $4.7 million accordingly will be placed by plaintiffs' counsel into a "Compensatory Damages Fund." See Settlement Agreement, at 7-9; Appendices B, C, G, H.

B. Plaintiffs will receive reimbursement of $1.2 million in documented attorneys' fees and expenses. In addition, plaintiffs will receive up to a maximum total of $150,000 for reasonable attorneys' fees plus expenses and costs incurred after Entry of Judgment in the District Court until the expiration of the Settlement Agreement. See Settlement Agreement, at 37-38, Appendix D.

C. The Settlement Agreement also provides a mechanism for granting individualized, non-monetary relief to plaintiffs. Any member of the plaintiff class who has a claim not yet resolved or dismissed between December 25, 1981 and the Entry of Judgment in the District Court on grounds of discrimination on the basis of race in promotions, discipline, awards, assignments (including undercover assignments), details, terminations, performance evaluations, or training may submit a claim under the procedures set forth in the Settlement Agreement. No monetary relief may be granted under this procedure, which has elaborate safeguards, including the participation of a Recommending Official that is selected by mutual agreement of the parties. The Director of ATF is the final decision-maker on these claims, which are not further reviewable by any court or any other quasi-judicial or administrative body. See Settlement Agreement, at 9-14, Appendix G.

D. ATF will retain a qualified individual approved by the plaintiffs (currently, Dr. Irwin Goldstein) to assist the agency in writing a work statement to be used in connection with the procurement of a new promotion assessment system. That system will be developed in accordance with the Uniform Guidelines issued by the U.S Equal Employment Opportunity Commission, codified at 29 C.F.R. Part 1607, or other professional standards, and any applicable federal laws and regulations and shall, inter alia, minimize adverse impact on African-Americans who are GS-1811 series Special Agents employed by ATF. See Settlement Agreement, at 20-25.

The Request For Proposals ("RFP")/solicitation will be designed to select a contractor to develop a promotion assessment system to replace the existing Career Development Plan for the Office of Criminal Enforcement. The contract would also provide for a job analysis that would not only provide the basis for developing the new promotion assessment center, but it would provide the basis for developing other equitable relief in the areas of performance appraisals, training, transfers, awards and bonuses, and assignment to special teams. See Settlement Agreement, at 20-25, 27-33.

E. ATF would convert to career conditional status all Special Agents who, on the Effective Date of this Settlement Agreement, are qualified for such conversion and are still in Schedule A status. See Settlement Agreement, at 18-19. Currently, there are three Special Agents remaining in Schedule A status.

F. Plaintiffs' counsel will be provided with information sufficient to monitor whether ATF is complying with the terms of the Settlement Agreement. To assist the parties in monitoring compliance, ATF will establish and maintain a computerized database containing relevant statistical data. An expert mutually acceptable to the parties will produce a report that analyzes the employment data to determine whether the employment practices or personnel systems at issue have had an adverse impact upon African-American Special Agents in the GS-1811 series during the previous data gathering period as well as cumulatively from the Entry of Judgment in the District Court. See Settlement Agreement, at 14-18.

Def.Resp. at 3-6.

7. There has been overwhelming class support for the proposed settlement. There are approximately 245 members of the class. Yet, only one class member, Special Agent Davenport, has objected to the Settlement Agreement. Special Agent Davenport seeks to "opt out" of the Settlement Agreement and argues that class certification is inappropriate. The Settlement Agreement, however, states:

No class member may opt-out of this Settlement Agreement, but any class members may elect not to accept the relief or any portion of the relief, provided under this Settlement Agreement. So doing, will not, however, revive or preserve any individual rights on the part of that class member.

Settlement Agreement, at 6-7.

8. The remaining objections to the Settlement Agreement were...

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