Breiterman v. U.S. Capitol Police

JODI BREITERMAN, Plaintiff, v. UNITED STATES CAPITOL POLICE, Defendant.

Civil Action No. 16-893 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 4, 2020

MEMORANDUM OPINION

United States Capitol Police employee Jodi Breiterman sued USCP, alleging that her suspension and demotion resulted from unlawful gender discrimination and retaliation in violation of the Congressional Accountability Act and the First Amendment. USCP tells a different story, asserting that it suspended Breiterman for remarking to fellow employees that women had to "sleep with someone" to get ahead there, and that it demoted her for leaking a picture of an unattended USCP firearm to the press. In response, Breiterman largely admits to the conduct attributed to her but still claims that USCP singled her out because of her gender and in retaliation for her protected activity. USCP has moved for summary judgment. For the reasons explained below, the Court will grant its motion.

I. Factual and Procedural Background

Breiterman is a private first class in the United States Capitol Police ("USCP"), where she has worked since 2002.¹ Defendant's Statement of Undisputed Facts ("Def's UF"), ECF No. 65-2 ¶¶ 73-74. At the time of the events underlying this suit, Breiterman was a sergeant, the lowest USCP rank considered management. Id. ¶¶ 8, 82.

In February 2014, Breiterman submitted her preference for an open position in the Protective Services Bureau ("PSB"), Investigations Division, Intelligence Section. Id. ¶ 111. Breiterman says that a lieutenant in the Investigations Division called her and told her that she would get the job. Id. ¶ 112. Deputy Chief Chad Thomas, head of the PSB, had in fact selected Breiterman as his top choice for the position, but he still had to meet with then-Assistant Chief Daniel Malloy and the other deputy chiefs before the selection could be completed. Id. ¶ 113. Assistant Chief Malloy, however, "vetoed" Breiterman's selection. Id. ¶¶ 113, 117. Ultimately, Deputy Chief Thomas offered the job to his second choice, Sergeant Joliana Cobbin, even though Sergeant Cobbin had not specifically requested the Intelligence Section position. Id. ¶ 117. Breiterman filed a Request for Counseling in May 2014, followed by a Request for Mediation in June 2014, with the USCP's Office of Compliance, alleging that she was not selected for the Intelligence Section job because of her race, in violation of the Congressional Accountability Act. Id. ¶¶ 124-25. Breiterman is white and Sergeant Cobbin and Assistant Chief Malloy are both African-American. Def's Ex. 2, Attach. 1, ECF No. 65-4 at 140:18-141:4. Breiterman chose not to pursue her claim further following mediation. Def's UF ¶ 130.

Also in May or June 2014, Breiterman, while talking with administrative staff and a sergeant, made a comment about a female private first class she believed was "transferred . . . to a specialty department due to her [romantic] relationship with [a] Deputy Chief." Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl's Opp."), ECF No. 66 at 18; Def's UF ¶¶ 133-34, 139. During that conversation, she said something to the effect of, "You have to sleep with someone to get ahead in the department." Pl's Opp. at 18; Def's UF ¶ 134. The private first class learned about Breiterman's comments and filed a complaint with theUSCP's Office of Professional Responsibility ("OPR"). Def's UF ¶¶ 138-39.² Then-Sergeant Mark Shutters investigated the complaint and interviewed Breiterman, the others present during her alleged remark, and the complainant. Id. ¶ 139. Breiterman admitted to commenting negatively on the complainant's transfer and to saying something like "in order to get ahead you got to sleep with someone around here" or "you have to sleep with someone to get ahead." Id. ¶ 141. At the end of the investigation, OPR sustained a charge of violating Rule C10 of the USCP Rules of Conduct, Improper Remarks, a rule which prohibits employees from making "malicious, harassing, untruthful, or frivolous remarks or rumors against, or about, other members of the Department or individuals in the workplace." Id. ¶ 146; Def's Ex. 2, Attach. 2, ECF No. 65-5, Ex. 3 at 6. Consistent with USCP policy, OPR forwarded its report to the assistant commander for review, who approved it and sent it on to the commander, who in turn approved it and sent it to a disciplinary review officer for legal sufficiency review and penalty assessment. Def's UF ¶¶ 41, 43, 46-47, 147. Deputy General Counsel ("DGC") Thomas DiBiase, head of the Disciplinary Review Office, recommended a two-day suspension without pay for Breiterman. Id. ¶¶ 48, 147; see Def's Ex. 2, Attach. 6, ECF No. 65-6 at 125:4-7. The recommendation was then sent to Deputy Chief Thomas, Breiterman's bureau commander, who USCP asserts approved it. Def's UF ¶¶ 151, 153.³

Although Breiterman admitted to saying what she was accused of, she felt that the discipline proposed was too harsh because what she said was true—that is to say, female officers do have to sleep with male officers to get ahead—and no one ever investigated her statement's truthfulness. Pl's Opp. at 18-19; Plaintiff's Statement of Disputed Material Facts ("Pl's DF"), ECF No. 66-2 at 54-55. As a result, she appealed her suspension to then-Deputy Chief Matthew Verderosa, who was commander of the Disciplinary Review Task Force, as too harsh and inconsistent with progressive discipline. Pl's Opp. at 19; Def's UF ¶¶ 155, 158. Her appeal was denied, as was a second appeal to then-Chief Kim Dine, and Breiterman ultimately served her two-day suspension on September 27 and 28, 2015. Pl's Opp. at 19; Def's UF ¶¶ 155, 159, 170, 172.

Even before Breiterman served her suspension, though, the events leading to her demotion were already underway. On January 29, 2015, she responded to a call that a congressional staffer had found an unsecured firearm in a men's bathroom in an area of the Capitol Visitor Center restricted to authorized personnel. Def's UF ¶¶ 173-74. Breiterman, along with several other USCP employees, reported to the scene and began investigating. Id. ¶¶ 175-76. While doing so, Breiterman photographed the firearm on her work phone and determined that the firearm was USCP-issued. Id. ¶¶ 177-78. She secured it, and the USCP officer to whom it belonged was allowed to retrieve it. Id. ¶ 179. According to Breiterman, she saw the officer with it a few days later, which she thought was inappropriate because in her view, he had created a serious safety risk that merited a disciplinary investigation. See Pl's Opp. at 20; Def's UF ¶¶ 181-83. But USCP did undertake such an investigation, and the agent was ultimately suspended for six days without pay. See Pl's Opp. at 8, 20; Pl's Ex. 2, ECF No. 66-4 at 42:3-43:1.

What came next, though, was what landed Breiterman in more trouble. A few months later, on May 1, 2015, Roll Call reporter Hannah Hess published an article titled "Capitol Police Left Guns in Bathrooms," with the picture Breiterman had taken reprinted prominently under the headline. See Pl's Opp. at 21; Def's UF ¶ 192. The article was critical of USCP. It discussed the January incident as well as two similar incidents, including one in which a seven- or eight-year-old child allegedly found a loaded firearm in a bathroom of the suite belonging to the Speaker of the House of Representatives. Def's Ex. 6, ECF No. 65-10. The article stated that no one knew how often such incidents occur because USCP does not disclose them, and reported that the "Jan[uary] 29 incident went out over the radio system, but the other two have been kept quiet, based on conversations with nine Capitol Police employees from various divisions, who spoke on the condition of anonymity to discuss internal issues. None seem surprised, and two offered other examples of officers who were investigated for leaving their guns unsecured or unattended." Id. The article also reported that OPR recommended a six-day suspension of the officer at fault in the January 29 incident, and that the other two were still under investigation. Id. Later that day, Hess published a follow-up piece titled "Do Capitol Police Problems Go Beyond the Bathroom?" which similarly featured the photo Breiterman had taken and was again critical of USCP. Def's Ex. 7, ECF No. 65-11; Def's UF ¶ 197. According to USCP, the articles created a "media frenzy" in which "the Department, its leaders, and its officers were the subject of intense public scrutiny and negative media coverage," including several critical national and international news articles, a congressional hearing, and even a skit on Jimmy Kimmel Live! titled "Potty Training." Def's UF ¶¶ 199-201; Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Def's Br."), ECF No. 65-1 at 2.

USCP investigated who leaked the photo of the firearm, and quickly determined that it was probably Breiterman. Def's UF ¶¶ 206, 209. The next month, Sergeant Shutters interviewed Breiterman in connection with this investigation; the interview lasted for about two hours and fifteen minutes. Id. ¶ 211; Def's Ex. 3, Declaration of Mark S. Shutters ("Shutters Decl."), ECF No. 65-7 ¶ 22. The parties' accounts of this interview differ somewhat. According to USCP, Breiterman was not forthcoming about having sent the photo to Hess, and she twice denied having sent it to anyone outside USCP, only to turn around and admit to it after being confronted with evidence implicating her and threatened with a polygraph. Def's UF ¶¶ 213-17; Shutters Decl. ¶¶ 15-16. Breiterman agrees that she "admitted" sending the photo to Hess, but she does not think she first denied doing so. Pl's DF at 65; Pl's Ex. 6, ECF No. 66-8 at 219:20-220:4; Def's Ex. 2, Attach. 1 at 236:3-237:20. In any event, the parties agree that Breiterman also admitted to speaking with Hess about the circumstances of the January 29 incident. Def's UF ¶¶ 218-20.

The parties also dispute...