Police Seek Handover of Confidential Documents

Posted June 8, 2010 at 6:22pm

The Capitol Police are trying to compel the Office of Compliance to hand over confidential documents on more than 200 black police officers in the department’s latest attempt to dismiss the officers’ discrimination lawsuits.

In a recently filed motion, attorneys for the Capitol Police Board argue that while the information is confidential, it isn’t “privileged” and should be allowed as evidence in court.

It’s a rare request for the 15-year-old OOC. Many Congressional employees go to the office every year to file complaints about their work environments, and only one resulting lawsuit in the OOC’s history has led to requests for confidential documents.

The motion comes after the Office of Compliance refused to comply with a subpoena for the counseling documents. But while the OOC considers the request “irrelevant and privileged,” the police board calls such objections “meritless.”

The documents “are not just relevant, they are highly probative evidence of whether the putative plaintiffs in this case timely exhausted their administrative remedies under the Congressional Accountability Act,” the police board’s attorneys write in the motion, later adding, “Each officer’s request for counseling is plainly relevant to this inquiry.”

OOC officials declined to comment on the case. Capitol Police spokeswoman Sgt. Kimberly Schneider said the department similarly does not comment on “pending litigation.”

The fight over the officers’ in-house counseling documents is just the latest maneuver in a case that has dragged on for more than eight years.

Led by former Capitol Police Lt. Sharon Blackmon-Malloy, the officers claim they were harassed, denied promotions and treated unfairly in the department. Their amended complaint — filed last month — claims that white co-workers and superiors used derogatory language such as the N-word, “gangster” and “huk.” The complaint also details the experiences of individual black officers, such as one who was not allowed to pursue an investigation into a white officer and another who was denied additional training with no explanation.

“Officers of the U.S. Capitol Police identified in this Complaint have experienced some or all of the discrimination described in this case, on an ongoing basis,” according to the amended complaint. “Each of them has been subjected to unwelcome racial harassment and a hostile work environment in the form of racist actions and practices, racist statements and racial epithets … and/or obvious mistreatment by certain white Officers, including but not limited to abuse, yelling, threats, denial of normal privileges, and posting of Black Officer pictures on promotion examination files, thus identifying them for disparate treatment.”

But such claims have yet to make their way to a courtroom. Instead, both sides have been mired in pretrial motions and appeals. One of the primary arguments has centered on whether the officers followed the legal requirement of in-house counseling and mediation. The U.S. attorney’s office, which represents the police board, claims most officers’ claims don’t qualify for court; the officers’ attorneys, meanwhile, point to the OOC’s confirmation that the officers completed the required counseling.

In 2007, the U.S. District Court for the District of Columbia sided with the police board and ruled that the officers did not exhaust those in-house remedies. Two years later, that ruling was overturned by the U.S. Court of Appeals.

The case is now back in the district court, but the two sides are still debating which officers can move forward in a flurry of motions.

So far, the two sides have agreed that 17 officers fulfilled their in-house requirements and 60 did not. The more than 200 remaining officers are the subject of the latest motion. The U.S. attorney’s office maintains that the court cannot determine if those officers were timely (and thus following legal requirements) in their request for OOC counseling.

But Joseph Gebhardt, the officers’ attorney, called the police board’s argument “outrageous” and pointed to the appeals court’s ruling that the OOC’s notice of the end of mediation was proof enough.

“It’s closed. The court of appeals made their decision,” he said. “The U.S. Capitol Police and U.S. attorney’s office are still planning to dismiss a vast majority of plaintiffs in trying to vindicate themselves from employment discrimination.”