Capitol Police Employment Counsel Accused of Discrimination

Posted October 6, 2010 at 5:51pm

An attorney tasked with defending the Capitol Police against claims of racial discrimination has himself been accused of racial discrimination in a lawsuit, prompting at least one call for him to recuse himself from another case.

Frederick Herrera, who since 2003 has headed the Capitol Police Office of Employment Counsel, is accused by a fellow employment counsel of discriminating against her because she is African-American and female, according to a complaint filed late last month in the U.S. District Court for the District of Columbia.

Herrera advises the force on workplace policies and practices and sometimes defends it against workplace-related lawsuits.

He has appeared in court on behalf of the department in a discrimination lawsuit brought by more than 250 black Capitol Police officers who allege that superiors created a hostile working environment and denied promotions to qualified black officers.

Herrera is also a lead attorney defending the Capitol Police in a separate lawsuit brought by one of those black officers, Regina Bolden-Whitaker, who says the department retaliated against her because of her involvement in the case. He defends the force in another sex discrimination lawsuit brought by an officer assigned to then-House Minority Leader Nancy Pelosi’s security detail.

But a discrimination suit brought by another Capitol Police lawyer, who as recently as 2006 was co-counsel with Herrera on workplace discrimination lawsuits, prompted a call for Herrera to step down from cases involving racial discrimination.

Scharon Ball, senior employment counsel with the Capitol Police since 2004, alleges that the department failed to thoroughly investigate her assertions that Herrera discriminated against her and that her superiors instead retaliated against her by refusing to promote her.

“I believe that Mr. Herrera should recuse himself,” said Joe Gebhardt, the plaintiff’s attorney in the black Capitol Police officers’ case. “There are now serious discrimination charges lodged against him, which he will necessarily have to defend himself against.”

Gebhardt said he had planned to depose Herrera as a witness in the case Friday and still plans to, assuming the defense attorneys don’t try to delay the deposition.

Bolden-Whitaker, on the other hand, hesitated to call for Herrera’s head just yet.

“I guess I would just let justice make the determination on whether he should step down or not,” said the officer, who is defending herself in court. “If they find that he’s guilty, then I think certainly he should step down.”

In her lawsuit, Bolden-Whitaker alleges that as a result of her involvement as a plaintiff in the black police officers’ case, her superiors wouldn’t allow her to wear a leather belt with her uniform despite allowing a white officer to wear the same attire.

The standard-issue police web gear belt causes her severe back pain, according to her complaint filed July 12 in the U.S. District Court for D.C.

Herrera is defending the department against those claims, but Ball filed her suit Sept. 23 against House Sergeant-at-Arms Bill Livingood, chairman of the Capitol Police Board, and Capitol Police Chief Phillip Morse.

She says that after she questioned Herrera in 2008 about asking her and another African-American female lawyer to work late while allowing a white male paralegal to leave early, Herrera began to retaliate against her.

He subjected her to “repeated acts of retaliatory harassment” and began sending Ball “a series of harassing e-mails, unfairly and arbitrarily questioned her work, irrationally instructed her to seek advice from the Caucasian paralegal” and other actions, according to the complaint filed in the U.S. District Court for D.C.

Ball lodged a formal complaint with the department’s internal affairs division in August 2009, and the two were separated. But the harassment got worse, Ball says, when Herrera repeatedly complained about her to supervisors.

The issue came to a head in early 2010, when Ball applied for the newly created position of diversity officer. Ball was passed over in favor of an outside candidate, which her lawsuit says was in retaliation for her complaint against Herrera.

Her September suit also alleges the internal affairs complaint was never fully examined because another employee close to Herrera was put in charge of the investigation. Furthermore, she says she has been excluded from participating in any equal-opportunity litigation since late 2008, and her career has suffered as a consequence.

Herrera did not return a request for comment, and spokeswomen for the Capitol Police and the Capitol Police Board declined to comment on personnel issues or pending litigation.