Judge rules for Capitol Police in sex discrimination case

Litigation reveals Capitol Police employees making fun of those who are deaf, transgender and undocumented immigrants

Assistant Chief Chad Thomas was among the complainant's supporters earlier in her career.  (Tom Williams/CQ Roll Call file photo)
Assistant Chief Chad Thomas was among the complainant's supporters earlier in her career. (Tom Williams/CQ Roll Call file photo)
Posted September 8, 2020 at 6:41pm

A federal judge has found that the Capitol Police did not engage in unlawful gender discrimination against veteran officer Jodi Breiterman when it suspended and demoted her from the rank of sergeant.

District of Columbia District Court Judge Timothy Kelly granted the Capitol Police summary judgment in a Sept. 4 order, meaning Breiterman lost her case before even reaching trial but can appeal the decision.

“Neither Breiterman’s purported comparator evidence nor evidence of alleged procedural irregularities in the USCP process suffices to cast doubt on USCP’s asserted legitimate, nondiscriminatory reason for placing her on administrative leave and then demoting her: that she committed a violation of USCP rules that called into question her ability to continue as a supervisor, especially when coupled with her substantial disciplinary history,” Kelly wrote.

He also granted summary judgment to the Capitol Police on two retaliation claims: one under the First Amendment and one under the Congressional Accountability Act.

Eva Malecki, a spokesperson for the Capitol Police, when asked for a comment, said, “Not at this time.”

Attorneys for Breiterman did not respond to a request for comment.

The decision was just the latest twist in a yearslong saga concerning Breiterman, whom Capitol Police leadership once touted for “her exceptional service” when she was named officer of the year by the Capitol Hill Executive Service Club in 2011.

In February 2014, Breiterman pursued a position in the department’s Protective Services Bureau and was chosen by then-Deputy Chief Chad Thomas as the top pick for the job; however, the decision required input from others in management, and then-Assistant Chief Daniel Malloy vetoed the decision to promote her. Breiterman alleged she was not picked for the job because of her race. Breiterman is white, Malloy is Black, and the officer selected for the position is also Black. Breiterman did not pursue this claim past mediation.

Months later, Breiterman commented that a female private first class was transferred to a specialty unit because of a romantic relationship with a deputy chief and noted that moving up in the department was associated with such relationships.

“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,’” Kelly wrote in the order.

The subject of Breiterman’s comments filed a complaint against her with the Office of Professional Responsibility, the entity charged with investigating misconduct among officers. The office found she violated department policy by using improper remarks, and she ultimately served a two-day suspension in September of 2015.

“Even before Breiterman served her suspension, though, the events leading to her demotion were already underway,” Kelly wrote.

On Jan. 29, 2015, Breiterman was among officers who responded to an incident in which a congressional staffer found a Capitol Police officer’s gun in a men’s bathroom in the Capitol Visitors Center. She photographed the gun with her work phone. The weapon was stuffed into the toilet cover dispenser.

The agent who left their gun was suspended for six days without pay.

On May 1, 2015, Roll Call reported on the incident and others in which officers left guns unattended. The photo under the headline was submitted to reporter Hannah Hess by Breiterman.

The department was not pleased with the media coverage, the judge wrote:

“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.’”

The Capitol Police investigated who leaked the photo to Hess and eventually found out it was Breiterman by her own admission.

The Office of Professional Responsibility, in September 2015, issued its report. After the report was complete, Senior Counsel Scharon Ball wrote a memo calling for Breiterman to be demoted.

Ball, in her penalty memo, gave substantial weight to the media attention stemming from the leaked photo. She said Breiterman’s conduct adversely affected the trust Congress has in the department, “tarnished the reputation of the Department,” and “exposed the Department to significant ridicule and damaging publicity.”

Ball found Breiterman sent the photo to Hess to “embarrass the Department and bring disrepute on other Department law enforcement officers and officials.”

Ball also noted that inappropriate texts Breiterman had with a captain in her chain of command showed a lack of judgment and exhibited poor conduct. Further, Ball said Breiterman’s disciplinary record — two less serious violations and two grave violations — played a role in her decision.

Thomas disagreed with the recommendation for demotion, but ultimately, former Chief Matthew Verderosa decided to demote her.

Officer misconduct exposed

The litigation has brought more misconduct among the Capitol Police to light.

Breiterman offered male comparisons to attempt to bolster her gender discrimination claim. The judge found three “potential comparators are indeed male supervisory officials who received more lenient punishment than Breiterman. But they are not similarly situated to her because they do not have similar disciplinary histories.”

One male commander, known only as Comparator 1, sent suggestive text
messages to a female subordinate and invited her to his hotel room when they were on official travel. He got a 20-day suspension, over the course of two months.

While on duty, two other supervisor-level male officers — a commander (Comparator 2) and a high-ranking department commander (Comparator 3) — altered a series of photos to mock high-ranking USCP officials for an office joke.

“Besides mocking USCP officials, the altered images made fun of the deaf, illegal immigrants, and transgender people,” Kelly wrote.

Comparator 2 got two CP-535s (serious violation) and a 13-day suspension. Comparator 3 got a 14-day suspension.