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Date: 11-21-2021
Case Style:
Jodi Breiterman v. United States Capitol Police
Case Number: 20-5295
Judge: Neomi Rao
Court: United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On appeal from The United States District Court
for the District of Columbia
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
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.
3
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
4
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.
5
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
6
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
7
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,
8
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
9
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
10
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
11
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
12
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
13
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
14
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
15
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
16
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,
17
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
Outcome: For the forgoing reasons, we affirm the district court’s
grant of summary judgment to the Capitol Police.
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Defendant's Experts:
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