Six Years in, Black Officers’ Lawsuit Remains Stalled

Posted April 6, 2007 at 6:20pm

Six years ago this week, Sharon Blackmon-Malloy and more than 100 of her fellow black Capitol Police officers marched to the Office of Compliance to file a highly publicized discrimination complaint against the department.

That complaint, filed on behalf of more than 200 current and former black officers, alleged that their working conditions were the modern-day equivalent of “a 19th century Southern plantation in law enforcement.”

Blackmon-Malloy, now a lieutenant and still president of the United States Capitol Black Police Association, specifically alleged that she was discriminated against during a promotion exam for the rank of sergeant and that she had been the victim of a hostile work environment.

Eventually, more than 350 black officers joined the complaint and have been seeking to have the case certified as a class action in a $100 million lawsuit filed in U.S. District Court in October 2001.

As of today, the case has not gone to trial and has not made it to the discovery phase.

For the past six years, two judges, government counsel from the Office of the U.S. Attorney and several lawyers representing the officers have been engaged in a legal back and forth over the government’s original motion to dismiss.

While U.S. District Judge Emmet Sullivan granted the motion some three years ago, he allowed the officers to file a motion to reconsider.

After several more rounds of legal positioning, Sullivan asked a second judge to make a recommendation on which officers had exhausted the proper administrative remedies under the Congressional Accountability Act — namely attending counseling and mediation meetings — to be eligible to move forward.

That recommendation whittled the 362 complaintants down to fewer than 15.

Last week the officers’ lawyers vigorously objected to that recommendation, in part taking issue with the judge’s interpretation of the CAA.

The case soon could move along two tracks, with the officers deemed eligible proceeding with their suits while the hundreds of other officers appeal the court’s reading of the CAA.

And those legal disputes could play out for another six years, Blackmon-Malloy said in an interview last week.

“We believe that the proposed class action is at its halfway point,” she said. “It is far from over.”

‘Suffer in Silence’

But ever since their April 12, 2001, march to the OOC, Blackmon-Malloy said, many of the black officers continue to “suffer in silence” with hostile working environments, unfair discipline policies and promotion discrimination.

“The class action did change some things, but they were so small you could hardly see any progress with all the retaliation that came as a result of the filing,” she said. “Some of them were clearly retaliatory and to this day it continues. It has not been reported as much because people still fear for their jobs.”

Capitol Police Chief Phillip Morse, who was tapped to take over the department at the end of 2006, would not comment on the still-pending lawsuit, but department spokeswoman Sgt. Kimberly Schneider said last week that Morse has a “progressive plan” for dealing with the racial climate within the force.

“His goal is to make every process a business process — with standard procedures,” she said. “The business process will be applied in all instances. The end result will be the ability for employees to see that our processes are fair, thus removing any sort of tension that may exist.”

But that isn’t enough for Blackmon-Malloy, who said her organization still is waiting to meet with Morse to discuss some of their ongoing concerns with how the department is running.

“We asked for a meeting six months ago,” she said. “We’ve gotten no response, no inquiries, not even anything to show any signs of support. … If you get no response people have a tendency to come to their own conclusions. There’s quite a few African-American officers who are disappointed that he hasn’t acknowledged that there is a problem.”

Adding Transparency

While Morse has not commented publicly on the lawsuit, his predecessor and now supervisor, Senate Sergeant-at-Arms Terrance Gainer, argued that improvements have been made since the case was initiated.

Gainer, who chairs the Capitol Police Board, said Morse’s work to create a businesslike, transparent process when it comes to things like the promotion process or internal affairs investigations is key to making sure everyone feels like they are being treated fairly.

“It is when there is hocus-pocus, when it is not transparent, when there’s changes in the middle of the process, that’s what makes everybody suspect,” Gainer said.

Gainer acknowledged there’s no single solution for ending racial discrimination or tension “or the perception of either of those two things.”

But, he said, “the primary thing that I tried to do and the current chief is trying to do is establish a command climate where that doesn’t take place.”

In his first year after taking over the department in June 2002, almost nine months after the black officers filed their District Court case, Gainer instituted a number of initiatives to ease some of the racial tension.

“The way I tried to do that was first by opening the door. I had a very, very open-door policy. No locked doors on the chief’s suite, you could knock on my door,” Gainer said.

He also established the “10-43,” a department news bulletin that still comes out multiple times a week to give officers more information on what’s happening with the department. In addition, he established “Up Front,” a news bulletin personally written by the chief to address specific issues of concern.

Gainer also met with officers and attorneys in the Blackmon-Malloy case as well as concerned members of the Congressional Black Caucus.

“With Chief Gainer, he did have a lot of open communication,” Blackmon-Malloy said. “And I think a lot of officers, not only black officers but officers period, felt comfortable talking to him openly because he was accessible and approachable.”

“One of the major issues where I used [the ‘Up Front’] was the promotion process,” Gainer said. “That historically has been a concern of everybody, but certainly the black police officers association.”

Gainer also began using outside contractors to run promotions tests and tried to make it as transparent as possible by publishing results.

“We expanded and changed internal affairs and created an Office of Professional Responsibility and put some new and different people in there to try to remove some of the taint that IAD had on the quality and timeliness of investigations,” he said. “We tried to create an openness for specialty assignments. That’s generally been a thorn in people’s side that only select people were getting plum assignments.”

But Gainer acknowledged that all his changes weren’t without flaws.

“Some of the more recent filings in the suit have to do with the time that I was chief, but most are very, very old complaints,” he said.

And as the black officers’ suit drags into its sixth year, Gainer acknowledged that the process has been taxing on both the plaintiffs and the department.

“It’s frustrating because I had a strong desire as chief and now as chairman of the board to try to sit down and get to the crux of the issue,” he said. “I know it has to unfold in court, there’s a lot of motions back and forth, but I don’t think you can ever truly have a wholesome diverse organization unless everybody can talk, and while the suit is going on you are hamstrung.”

As an attorney himself, Gainer said he strongly supports the officers’ right to go to court, “but that takes care of the legal issues [and] doesn’t get to the core issue.”

“You need to sit down and talk about what the core problems are so that we can solve them together,” he said. “When you have two or three hundred people who feel they were wronged something has to be done to come to some meeting of the minds on how we advance.”

Looking Ahead

For now, Blackmon-Malloy is one of only eight plaintiffs who Magistrate Judge John Facciola determined properly had exhausted the requirements set forth by the CAA for moving forward with their case. Facciola — who held unsuccessful settlement negotiations on the suit in 2005 — determined that six other complainants may be able to move forward, but more information is required. The 348 complaints should be dismissed without the ability for reconsideration, Facciola recommended to Sullivan.

“It is clear that both Judge Sullivan and Magistrate Facciola believe that there are some deserving discrimination claims that should be decided by the court,” the officers’ lead attorney, Joseph Gebhardt, said last week.

“What I think is most likely to occur is that … the plaintiffs whose discrimination claims are deemed viable by the court will proceed in litigation in the U.S. District Court,” Gebhardt said. “Then the hundreds of black officers who are likely to be dismissed by reason of the magistrate’s report will file an appeal in the U.S. Court of Appeals for the D.C. Circuit.”

That appeal could set up a landmark case on the parameters and boundaries of the CAA and “whether the act provides for liberal treatment for the plaintiffs when it comes to their administrative requirements,” he said.

Gainer acknowledged the value of the court process but also added that as it plays out “it does slow the damn thing down.”

“No matter how that case comes out, they will win on some points, the department will win on some points, but the issue is, are we an organization where that’s not going to happen again,” he added. “Whether there will be remedies for wrongs real or perceived from 10 or 15 years ago is an interesting point, but it is also how do people feel today and how will they feel about the issue tomorrow.”