Jodi Breiterman v. United States Capitol Police

Washington, DC - Employment Law lawyer represented plaintiff challenging three adverse disciplinary actions by her employer charge.

Congress established the Capitol Police to ensure the

safety and security of the Capitol's facilities and to allow

Congress to "fulfill its constitutional and legislative

responsibilities in a safe, secure, and open environment.”

Breiterman served in the Capitol Police as a private first class

for about eight years before being promoted to sergeant. As a

sergeant, Breiterman's supervisory responsibilities included

overseeing, evaluating, and disciplining officers;

communicating information up the chain of command; and

interacting with reporters to provide scheduling information.

Although Breiterman competently fulfilled these

responsibilities and received praise for her dependability, she

had been disciplined on several occasions before the events

giving rise to this lawsuit. Breiterman also had previously

raised a claim of race discrimination when she was denied

reassignment to the Intelligence Section. Breiterman, a white

woman, claimed she was discriminated against when an

African-American supervisor filled the position with an

African-American woman. Breiterman ultimately decided not

to pursue the claim beyond mediation.

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Breiterman's lawsuit challenges the discipline arising

from two later events. The first occurred in 2014, when, in a

conversation with subordinate officers and administrative staff,

Breiterman speculated that a female officer was transferred to

a favorable posting because of her "romantic relationship with

a Deputy Chief.” Breiterman added something like, "[y]ou

have to sleep with someone to get ahead in the department.”

The officer learned of Breiterman's remarks and lodged a

complaint with the Capitol Police's Office of Professional

Responsibility ("OPR”). Sergeant Mark Shutters investigated

the complaint, and Breiterman admitted making the negative

remarks. OPR concluded Breiterman violated the Capitol

Police's Rule of Conduct against "improper remarks” because

she made "malicious, harassing, untruthful, or frivolous

remarks or rumors against, or about, other members of the

Department or individuals in the workplace.”

OPR's report was sent to the Disciplinary Review Office,

which recommends discipline for misconduct after considering

the nature and seriousness of the offense, the officer's

employment history, mitigating factors, and penalties issued in

cases involving similar circumstances. The Office

recommended a two-day suspension without pay, which

Breiterman's bureau commander approved, specifically citing

her supervisory role as a reason for doing so. Breiterman's

discipline was sustained on appeal by the Deputy Chief and

Chief.

The second disciplinary event occurred shortly thereafter.

On January 29, 2015, a radio call reported an unsecured firearm

in a men's bathroom in a restricted area of the Capitol Visitor

Center. Breiterman and other members of the Capitol Police

responded and secured the firearm. Breiterman photographed

the firearm on her work phone and sent the pictures to her

supervising officer. She also concluded—based on the

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firearm's markings—that it was issued by the Capitol Police.

The officer who left the firearm unattended was suspended for

six days without pay.

About three months later, Roll Call reporter Hannah Hess

published an article, "Capitol Police Left Guns in Bathrooms.”

The photo Breiterman had taken was printed directly beneath

the headline. The article scrutinized the January 29 incident and

two other incidents involving unattended Capitol Police

firearms in the Capitol. Later that day, Roll Call published a

follow-up article, "Do Capitol Police Problems Go Beyond the

Bathroom?”, which also featured Breiterman's photo. The

articles generated a "media frenzy.”

The Capitol Police's media policy prohibits "sworn

employees” from "speak[ing] publicly or releas[ing] any

information related to employee cases or administrative cases,

[or] investigations.” As part of an OPR investigation, Sergeant

Shutters discovered that the photo printed in the news articles

was Breiterman's and that she sent it to her personal email

account several days before the first Roll Call article was

published. Sergeant Shutters concluded Breiterman had

probably leaked the photo.

During her interviews, Breiterman ultimately admitted

sending the photo to Hess and telling her about the January 29

incident. According to the Capitol Police, Breiterman told

Sergeant Shutters that she "did not know why” she sent the

photo to Hess and admitted that doing so violated policy and

exceeded her authority. Several months later, Breiterman sent

a letter to the Inspector General of the Capitol Police, claiming

she had spoken about "a matter of public concern,” namely that

a loaded firearm had been left unattended in a bathroom by a

Capitol Police officer. She claimed to be concerned about the

"repeated instances” of unattended firearms in the Capitol.

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Breiterman admits, however, that until she spoke with Hess,

she was unaware of other incidents involving unattended

firearms. Breiterman was placed on paid administrative leave

during the investigation.

OPR charged Breiterman for "conduct unbecoming.”

Based on Breiterman's supervisory status, disciplinary history,

and the disruption resulting from her leak to the media, the

Disciplinary Review Office recommended demoting

Breiterman from her supervisory rank of sergeant to the nonsupervisory rank of private first class. Although Breiterman's

bureau commander disagreed with the discipline, the Assistant

Chief thought demotion was appropriate because Breiterman

leaked information about a pending investigation, which may

have undermined the trust of her subordinates. The Assistant

Chief also noted that Breiterman failed to provide a

"legitimate ... explanation” for her actions. After an

unsuccessful administrative appeal, Breiterman was demoted.

Breiterman sued the Capitol Police in federal district court.

She alleged her two-day suspension for "improper remarks”

was in fact sex discrimination and retaliation in violation of the

Congressional Accountability Act ("CAA”), Pub. L. No. 104-

1, 109 Stat. 3 (1995) (codified as amended at 2 U.S.C. § 1301

et seq.). Additionally, she alleged her paid administrative leave

and eventual demotion in the wake of the media leak were due

to sex discrimination and retaliation in violation of the CAA as

well as retaliation for speech protected by the First

Amendment. The district court granted the Capitol Police's

motion for summary judgment. Breiterman timely appealed.

II.

This court reviews de novo the district court's grant of

summary judgment. Holcomb v. Powell, 433 F.3d 889, 895

(D.C. Cir. 2006). "The court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). "Summary judgment is

appropriately granted when, viewing the evidence in the light

most favorable to the non-movant and drawing all reasonable

inferences accordingly, no reasonable jury could reach a

verdict in her favor.” Wheeler v. Georgetown Univ. Hosp., 812

F.3d 1109, 1113 (D.C. Cir. 2016).

Breiterman first alleges discrimination and retaliation in

violation of the CAA, which extends the protections of Title

VII of the Civil Rights Act of 1964 to covered employees of

the federal legislative branch, including members of the

Capitol Police. 2 U.S.C. §§ 1301(a)(3)(D), 1302(a)(2);

Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 701

(D.C. Cir. 2009). The CAA mandates that "[a]ll personnel

actions affecting covered employees shall be made free from

any discrimination based on ... race, color, religion, sex, or

national origin.” 2 U.S.C. § 1311(a). Like Title VII, the CAA

forbids an employer from retaliating against an employee

because of protected activity. 2 U.S.C. § 1317(a); Iyoha v.

Architect of the Capitol, 927 F.3d 561, 566 (D.C. Cir. 2019).

In previous cases, we have generally assumed that Title VII

precedent applies to retaliation claims under the CAA, and we

use the burden-shifting framework in McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973), "to evaluate

discrimination and retaliation claims that rely on indirect,

circumstantial evidence.” Iyoha, 927 F.3d at 566.

To advance a discrimination claim, the plaintiff must first

establish a prima facie case of discrimination. Wheeler, 812

F.3d at 1113. If she carries that initial burden, the employer

must then "articulate a legitimate, nondiscriminatory reason for

its action.” Id. at 1114. If the employer articulates such a

reason, the burden shifts back to the plaintiff to show the

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employer's reason was a pretext for unlawful discrimination.

Id. This framework applies in the retaliation context as well.

Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014). And in

both contexts, if the employer has offered a nondiscriminatory

reason for its action, the court "need not—and should not—

decide whether the plaintiff actually made out a prima facie

case under McDonnell Douglas.” Brady v. Office of Sergeant

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715

(1983) ("Where the defendant has done everything that would

be required of him if the plaintiff had properly made out a

prima facie case, whether the plaintiff really did so is no longer

relevant.”).

In this case, the Capitol Police provided legitimate,

nondiscriminatory reasons for suspending Breiterman, placing

her on administrative leave during an investigation into the

media leak, and demoting her from a supervisory position.

Therefore, "we skip ahead” and focus on whether Breiterman

has sufficiently demonstrated pretext. Wheeler, 812 F.3d at

1114.

Even viewing the evidence in the light most favorable to

Breiterman, she fails to demonstrate a genuine dispute of

material fact regarding whether the Capitol Police's asserted

reasons were pretextual, and so her discrimination and

retaliation claims under the CAA fail.

A.

Breiterman first asserts that her two-day suspension was

based on sex discrimination. The Capitol Police maintains that

it suspended Breiterman because she violated the rule against

"improper remarks” in the presence of other employees when

she suggested that a female officer received a favorable transfer

only because of her romantic relationship with a deputy chief,

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and that women must sleep with someone in the Capitol Police

to advance their careers. Breiterman generally admits making

these remarks but claims that the severity of the discipline was

a result of sex discrimination. Breiterman, however, has failed

to offer any evidence that would support an inference that the

Capitol Police's reason for the two-day suspension—namely

that Breiterman violated the rule against "improper remarks”—

was a pretext for sex discrimination.

Breiterman also asserts that her two-day suspension was in

retaliation for her equal employment opportunity ("EEO”)

complaint alleging racial discrimination when she was not

selected for a position in the Intelligence Section. Because the

Capitol Police has offered a legitimate non-retaliatory reason

for the suspension, the "only question is the ultimate factual

issue in the case—retaliation vel non.” Solomon, 763 F.3d at 14

(cleaned up). To establish pretext, Breiterman must show

"evidence discrediting” the Capitol Police's asserted reasons.

See id. at 15; see also Aikens, 460 U.S. at 716 ("The plaintiff

retains the burden of persuasion” and "may

succeed ... indirectly by showing that the employer's proffered

explanation is unworthy of credence.” (cleaned up)). This at

least requires showing "circumstantial evidence that could

reasonably support an inference” that those who recommended

or imposed the two-day suspension "had knowledge of [her]

protected activity.” Jones v. Bernanke, 557 F.3d 670, 679 (D.C.

Cir. 2009) (cleaned up). Breiterman provides no such evidence.

She points only to Sergeant Shutters' knowledge of her EEO

complaint, but Shutters was not involved in the

recommendation or imposition of the two-day suspension.

Breiterman's evidence is insufficient to show that her two-day

suspension was retaliatory.

Because nothing in the record would allow a reasonable

jury to conclude that the Capitol Police's reasons were a pretext

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for discrimination or retaliation in violation of the CAA, we

affirm summary judgment for the Capitol Police on claims

related to Breiterman's two-day suspension.

B.

Breiterman next claims the Capitol Police discriminated

against her on the basis of sex in violation of the CAA by

placing her on paid administrative leave and demoting her.

Breiterman admits she leaked the firearm photo to the media,

but argues that the Capitol Police treated "similarly situated

male employees ... more favorabl[y] than her for comparable

conduct,” and that procedural irregularities throughout her case

evince discriminatory intent. Breiterman also argues the

Capitol Police imposed this discipline in retaliation for her

protected EEO complaint in violation of the CAA. The Capitol

Police maintains it placed Breiterman on paid administrative

leave during the investigation consistent with Capitol Police

policy and demoted her for leaking information to the press in

violation of the Capitol Police's media policy. Breiterman fails

to provide facts that demonstrate these legitimate reasons were

a pretext for unlawful discrimination or retaliation.

As to her discrimination claim, Breiterman points to

several putative comparators—male employees who allegedly

committed similar or more serious violations but whom the

Capitol Police disciplined less severely. Evidence of an

employer's more favorable treatment to similarly situated

employees without the plaintiff's protected characteristic may

indicate discriminatory animus. Wheeler, 812 F.3d at 1115.

"To prove that [s]he is similarly situated to another employee,

a plaintiff must demonstrate that [she] and the allegedly

similarly situated employee were charged with offenses of

comparable seriousness,” and "that all of the relevant aspects

of [her] employment situation were nearly identical to those of

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the other employee.” Burley v. Nat'l Passenger Rail Corp., 801

F.3d 290, 301 (D.C. Cir. 2015) (cleaned up). When

determining whether an employee is an appropriate

comparator, this court considers factors such as: "the similarity

of the plaintiff's and the putative comparator's jobs and job

duties, whether they were disciplined by the same supervisor,

and, in cases involving discipline, the similarity of their

offenses.” Id.

None of Breiterman's purported comparators are similarly

situated. Most are non-supervisory officers with different

ranks, titles, and job duties from Breiterman. Compare

Holbrook v. Reno, 196 F.3d 255, 261–62 (D.C. Cir. 1999)

(difference in seniority or supervisory status renders employees

not similarly situated), with Wheeler, 812 F.3d at 1116

(employees working in similar units with the same seniority

were similarly situated). As the Capitol Police explains,

supervisors are entrusted with greater authority than officers,

held to a higher standard, and disciplined more severely than

officers for similar violations. Thus, Breiterman's nonsupervisory comparators are too dissimilar to draw any

inference of discriminatory treatment.

Even the three supervisory officials Breiterman cites are

not appropriate comparators because they did not have similar

disciplinary histories to Breiterman at the time of their

infractions. See Burley, 801 F.3d at 301. Two of these officers

had little or no prior disciplinary history, while the third had

only three minor violations, two of which resulted in warnings.

In contrast, Breiterman had been disciplined for four violations,

two of which were serious and resulted in suspensions. These

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supervisory officials are thus not similarly situated to

Breiterman.

Breiterman also seeks to use as comparators the male

inspector and captain who participated with Breiterman in

(unrelated) inappropriate text messages. The texts were

factored into Breiterman's punishment for the media leak, but

the men were not punished. We agree with the district court

that the Capitol Police's decision to not punish these men is

"troubling,” but neither the captain nor the inspector committed

additional violations of "comparable seriousness.” See

Wheeler, 812 F.3d at 1115–16. Breiterman leaked a sensitive

photo and information to the media, and the inappropriate texts

were considered along with her more serious infractions.

Ultimately, Breiterman's comparators are not similarly situated

and therefore fail to indicate unlawful discrimination.

Breiterman also cites alleged procedural irregularities to

prove pretext. An employer's "unexplained deviations from

established procedure” may provide evidence that its proffered

nondiscriminatory reason for an adverse employment action is

pretextual. Iyoha, 927 F.3d at 571. But "[s]howing

pretext ... requires more than simply criticizing the employer's

decisionmaking process”; "we may not second-guess an

employer's ... decision absent demonstrably discriminatory

motive.” Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C.

Cir. 2014) (cleaned up). Minor procedural irregularities

without discriminatory intent are not enough to demonstrate

pretext.

The alleged procedural irregularities Breiterman raises—

the length of the investigation and being placed on

administrative leave—do not suggest the Capitol Police's

reason for demoting her was pretext for unlawful

discrimination. Although demotions may be rare, Breiterman

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does not argue that the Capitol Police deviated from the

ordinary process for discipline resulting in a demotion. At

bottom, Breiterman disagrees with the Capitol Police's

decision to demote her. Without a showing of discriminatory

animus, we have no grounds for second guessing the Capitol

Police's disciplinary decision. Id.

Even assuming some procedural deviation occurred, the

deviations are not so irregular as to indicate unlawful

discrimination. The investigation spanned about ten and a half

months, during which time Breiterman was on paid

administrative leave. Breiterman does not dispute it is standard

procedure for the Capitol Police to place an employee on paid

administrative leave until the conclusion of a disciplinary

process that may result in termination or demotion. In fact,

records indicate that several male officers were placed on paid

administrative leave for ten months or more. While Breiterman

asserts that such practice is "highly unusual,” she has not put

forward facts to show that her leave was improper or

unjustified. And while Capitol Police regulations require

investigations like this one to be completed within 120 days,

Breiterman's investigation lasted 133 days, which is a minor

irregularity that does not suggest discriminatory intent.

Breiterman also claims she was demoted in retaliation for

her previous EEO complaint in violation of the CAA. This

claim lacks merit for the same reason as Breiterman's other

CAA retaliation claim. Her only evidence of retaliatory intent

is that Sergeant Shutters was aware of her prior EEO

complaint. But as discussed above, Breiterman offers no

evidence that the supervisors who placed her on leave and

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demoted her knew of her EEO complaint. See Jones, 557 F.3d

at 679.

We affirm the district court's grant of summary judgment

to the Capitol Police on Breiterman's claims that her

administrative leave and demotion were a result of sex

discrimination and retaliation.

III.

Breiterman also asserts the Capitol Police demoted her in

retaliation for exercising her First Amendment right to freedom

of speech and the district court erred in concluding that the

government's interests outweighed her interest in disclosing

information about the unattended firearm at the Capitol.

The First Amendment safeguards an individual's freedom

of speech. U.S. CONST. amend. I. Employees of the federal

government, however, may "by necessity” have to "accept

certain limitations on [this] freedom.” Garcetti v. Ceballos, 547

U.S. 410, 418 (2006). Without "a significant degree of control

over [an employee's] words and actions,” the government

would have "little chance for the efficient provision of public

services.” Id. Government employment does not extinguish

free speech rights. "The speech of public employees enjoys

considerable, but not unlimited, First Amendment protection.”

Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007).

A public employee claiming retaliation for exercising her

First Amendment rights must show: (1) she "spoke[] as a

citizen on a matter of public concern”; (2) her interest in

commenting on matters of public concern outweigh the

government's "interest in promoting the efficiency of the

public services it performs through its employees”; (3) "her

speech was a substantial or motivating factor in prompting the

retaliatory or punitive act”; and (4) she can "refute the

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government employer's showing, if made, that it would have

reached the same decision in the absence of the protected

speech.” Id. (cleaned up). We assume without deciding that

Breiterman's leak to Roll Call was a matter of public concern

and that she spoke as a citizen, rather than in her official

capacity. Breiterman's claim, however, fails on the second

prong.

When balancing the interests of the government against

the speech interests of its employees, we consider "the manner,

time, and place of the employee's expression” and "the context

in which the dispute arose.” Rankin v. McPherson, 483 U.S.

378, 388 (1987). The strength of the government's interest

turns on factors such as whether the employee's speech

"impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary, or impedes the performance of the speaker's duties

or interferes with the regular operation of the enterprise.” Id.

(citation omitted). Because of "the special degree of trust and

discipline required in a police force,” we have concluded that

"there may be a stronger governmental interest in regulating

the speech of police officers than in regulating the speech of

other governmental employees.” O'Donnell v. Barry, 148 F.3d

1126, 1135 (D.C. Cir. 1998).

We also consider the public's interest in obtaining

information. When a government employee is a "member[] of

a community most likely to have informed and definite

opinions” about an issue, the public has an interest in not being

"deprived of informed opinions.” Garcetti, 547 U.S. at 419–20

(cleaned up). Hence, "[t]he interest at stake is as much the

public's interest in receiving informed opinion as it is the

employee's own right to disseminate it.” Id. at 420 (cleaned

up). And when a police officer is "uniquely qualified” to

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address an issue of public concern, "we must be cautious in

accepting the claim that the public interest demands that [s]he

be silent.” O'Donnell, 148 F.3d at 1135.

The Capitol Police had substantial interests in disciplining

Breiterman for her unauthorized leak to the media. The Capitol

Police maintains policies regarding confidentiality and the

media to protect sensitive information in furtherance of the

agency's mission. The Capitol Police also has a strong interest

in employing officers and supervisors who can keep

confidences, especially with respect to internal investigations

and security. See id. Disciplining leaks—especially those that

undermine trust and interfere with administrative and security

functions—amply align with these interests.

Breiterman's conduct compromised the government's

interests in efficiency, harmony, and security. The leak

interfered with the Capitol Police's regular operations because

for months it had to redirect resources to deal with the fallout

from the Roll Call articles. There was a "danger that

[Breiterman] had discredited [the Capitol Police] by making

her statement,” see Rankin, 483 U.S. at 389, thus undermining

the particular trust required in a police force. As a supervisor,

Breiterman had greater responsibility to uphold the mission and

policies of the Capitol Police, and her breach undermined her

ability to continue in a supervisory role. See id. at 390 ("The

burden of caution employees bear with respect to the words

they speak will vary with the extent of authority and public

accountability the employee's role entails.”). Breiterman also

violated the official media policy. See Connick v. Myers, 461

U.S. 138, 153 & n.14 (1983) (government's interests

strengthen when an employee violates an announced official

policy). Breiterman's conduct "was disruptive to the

functioning” of the Capitol Police and threatened to "impair

discipline or working relationships.” See Tao v. Freeh, 27 F.3d

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635, 641 n.5 (D.C. Cir. 1994). Considering all the

circumstances, the Capitol Police had a strong interest in

disciplining Breiterman for sharing information with the

media.

Turning to Breiterman's interests, she asserts she wanted

to speak on a matter of public safety and share details about the

Capitol Police's failure to remedy a pattern of unattended

firearms. Even considering the facts in the light most favorable

to Breiterman, the record undercuts her stated rationale. For

instance, Breiterman explained that she decided her leak was

"a matter of public concern” only after being placed on

administrative leave, "consulting legal counsel,” and

"think[ing] about everything.” Breiterman also agreed that she

"didn't want [Hess] to do anything about [the photo] but just

[to] look at it.” And Breiterman discovered that other firearms

had been left unattended only after she leaked the photo. Thus,

she apparently had no knowledge of any wider problem with

unattended guns and no knowledge of what actions the Capitol

Police had taken to remedy any previous problems.

Breiterman's admissions diminish her interest in speaking on a

matter of public concern.

While we recognize the public's interest in learning about

a pattern of unattended firearms in the Capitol, Breiterman was

not "uniquely qualified” to expose that information because she

was unaware of other incidents or the response of the Capitol

Police to those incidents. See O'Donnell, 148 F.3d at 1135;

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S.

563, 572 (1968) (finding teachers uniquely situated to

participate in public discussion about how school funding

should be spent).

We conclude that Breiterman's interest must give way to

the Capitol Police's stronger interest in efficiency, harmony,

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and security. The Capitol Police disciplined Breiterman for

leaking the information and photo because she violated the

media policy, interfered with regular operations, damaged the

trust among employees, and impaired her ability to serve

effectively as a supervisor. Breiterman's interest in disclosing

the information and photo so a reporter could simply "view it”

is comparatively weaker, even if motivated by safety concerns.

In these circumstances, "a wide degree of deference to the

employer's judgment is appropriate” because "close working

relationships are essential to fulfilling public responsibilities.”

Connick, 461 U.S. at 151–52. Breiterman cannot succeed on

her First Amendment retaliation claim

For the forgoing reasons, we affirm the district court’s

grant of summary judgment to the Capitol Police.