United States District Court, District of Columbia
JAMES L. CAUL, Plaintiff,
U.S. CAPITOL POLICE, Defendant.
A. HOWELL CHIEF JUDGE.
plaintiff, James Caul, brings this action against his
employer, United States Capitol Police (“USCP” or
“defendant”), pursuant to the Congressional
Accountability Act (“CAA”), 2 U.S.C. §§
1401 et seq., asserting two claims for unlawful
racial discrimination and retaliation. Am. Compl. (Preamble),
ECF No. 4. The plaintiff claims that his supervisors
“depriv[ed] [him] of overtime  assignments based on
his race, ” id. ¶ 18, and, after the
plaintiff filed a request for counseling with the Office of
Compliance, pursuant to 2 U.S.C. § 1402, the defendant
initiated an “administrative investigation” of
the plaintiff in retaliation, id. ¶ 54. Pending
before the Court is the defendant’s motion to dismiss
the complaint for lack of subject matter jurisdiction
stemming from the plaintiff’s failure to exhaust
administrative remedies and for failure to state a claim,
under Federal Rules of Civil Procedure 12(b)(1) and
(12)(b)(6), respectively. Def.’s Mot. Dismiss
(“Def.’s Mot.”), ECF No. 8. For the reasons
set forth below, this motion is granted.
plaintiff, an African-American male, is a civilian employee
of the USCP, where he works as a Communications Operator in
the Library Communications Center (“LCC”). Am.
Compl. ¶ 6. The plaintiff’s unlawful
discrimination claim in Count One of the complaint asserts
that he was unlawfully “deprive[d] . . . of overtime .
. . assignments based on his race, ” id.
¶ 18, based on five alleged instances where, in his
view, his supervisor used “discretion [available] under
the informal, unauthorized policies” to deprive him of
“the opportunity to work additional duty, ” or
overtime, shifts. Id. ¶ 37. The plaintiff
admits, however, that in four of the five alleged
discriminatory episodes, he asked for and received approval
to work overtime and that he, in fact, worked overtime two of
those times. Id. ¶¶ 27-28, 30, 38. His own
allegations indicate that the plaintiff’s request to
work overtime was denied only once. Id. ¶ 46.
Moreover, despite his challenge to the handling of his
overtime shifts on these five occasions, the plaintiff has
apparently been approved to perform, and performed,
additional duty shifts on other occasions. See Id.
¶ 36 (alleging that his supervisor “has continued
to send e-mails to [plaintiff] on his days off, notifying him
either to show up or not show up for additional duty shifts
as a Substitute Employee.”).
review of USCP’s policies governing the assignment of
overtime, or “additional, ” duty, the five
alleged discriminatory episodes underlying the race
discrimination claim as well as the events alleged by the
plaintiff underlying the retaliation claim are briefly
USCP Policies Regarding Overtime Assignments
employees may augment their regular salaries by working
overtime shifts as substitutes for their absent co-workers.
Am. Compl. ¶ 8. Overtime shifts worked on federal
holidays (“holiday assignments”) versus
non-holidays (“additional duty shifts”) are
subject to separate policies. Each of the applicable policies
are discussed below.
employees assigned to work on a federal holiday may request
that another employee be substituted to fulfill this
assignment by filling out Form 1301-H. Am. Compl. ¶ 14.
The plaintiff alleges that the governing policy, USCP
Standard Operating Procedure (“SOP”) AC-000-20,
requires the substitute employee to be someone who was
“‘not originally scheduled for duty on the
holiday and  whose day off does not fall on the
holiday.’” Id. ¶ 15. In other
words, to qualify for a holiday assignment, the substitute
employee would have been regularly scheduled to work on that
day, but for the holiday. The substitute employee receives
his regular rate of pay for holiday assignments. Id.
Duty Shift Policies
employees may also request to be assigned to additional duty
shifts on non-federal holidays to substitute for absent USCP
employees regularly scheduled for those shifts. Id.
¶ 8. Substitute employees working the additional duty
shifts are paid at one and a half times their regular rate.
Id. USCP’s governing policy, SOP COP-USB-003,
issued on February 8, 2011, requires that the employee
requesting substitution of another employee to cover a
regularly scheduled shift fill out a Form CP 1301 listing the
name of the substitute employee. Id. ¶ 9. Once
the requesting employee’s “section official or
designee” approves the form, the substitute employee
becomes “‘solely responsible for said additional
duty.’” Id. ¶¶ 11, 12. The
plaintiff alleges that, under SOP COP-USB-003, the substitute
employee is “required to show up and should be able to
rely on working that [additional duty] shift, without any
further action by anyone.” Id. ¶ 19.
practice, however, the plaintiff alleges that, because
requesting employees may cancel their request for leave,
substitute employees are not expected to appear for
additional duty shifts unless a supervisor “contacts
the Substitute Employee to let him . . . know that his . . .
service is still needed.” Id. ¶ 21.
Indeed, under the USCP Absence and Leave Handbook, effective
May 2012, requesting employees may cancel their
“previously approved annual leave requests” up to
“48 hours in advance.” Id. ¶ 23.
This 48-hour cancellation policy was revised, on October 28,
2014, for LCC employees, who were advised via email that LCC
employees were permitted to cancel requests for leave up to
an hour “‘prior to their normal reporting
time.‘” Id. ¶ 23. “‘As
a result, personnel SCHEDULED TO WORK additional duty will
now have to call in and speak with an official to ascertain
if your SCHEDULED additional duty is still needed, preferably
on or prior to 1 hour before your scheduled reporting
time.’” Id. (emphasis in original). This
email expressly adds that “‘supervisors will no
longer be required to send emails, nor contact [the
substitute employee] of [his or her] status.’”
plaintiff alleges that the direction outlined in this email
was “[n]ot only . . . contrary to established USCP
policy, it was not in fact carried out.” Id.
¶ 24. The plaintiff avers that “supervisors . . .
continued to send e-mails and a Substitute Employee was not
expected, or allowed, to work the substitute shift for which
he or she had already been approved unless that Substitute
Employee received an e-mail from a supervisor indicating that
the substitute service was still needed.” Id.
Five Incidents of Alleged Racial Discrimination
plaintiff alleges five incidents of discrimination occurring
over the five-month period between September 3, 2014 and
January 24, 2015, based on the handling of overtime
Duty Shift on November 27, 2014
the plaintiff alleges that, on September 3, 2014, his
civilian supervisor, a white male, discriminated against him
by changing, “by hand, ” the date of the Form
1301, approving the plaintiff for additional duty shift on
November 27, 2014, which was written as “November 26,
2014.” Id. ¶¶ 18, 27. The plaintiff
alleges that this was an effort to “have [the
plaintiff] report to work for substitute additional duty
shift on the wrong day.” Id. The plaintiff
discovered the error, however, and ultimately reported to
this additional duty shift on the correct day. Id.
Duty Shift on Veterans Day 2014
the plaintiff alleges that, on September 15, 2014, he was
approved to work on Veterans Day 2014, even though a Form
1301 had already been approved for another employee.
Id. ¶ 44. The plaintiff’s first-level
police supervisor discovered that the original substitute
employee was not a “‘qualified
substitute’” under SOP AC-000-20 because Veterans
Day fell on the original substitute employee’s regular
day off. Id. Consequently, this first-level
supervisor contacted the plaintiff to determine whether he
would be interested in working a holiday assignment on
Veterans Day in the stead of the original substitute
employee. Id. ¶¶ 44, 45. The plaintiff
subsequently filed a Form 1301 to work the holiday
assignment, which was approved. Id. ¶ 44. The
plaintiff’s second-level supervisor reversed that
approval, however, and decided that the original substitute,
not the plaintiff, could work the Veterans Day holiday
assignment. Id. ¶ 46.
on September 21, 2014, the plaintiff’s immediate
supervisor “circulated a memo indicating that the
policy set forth in SOP AC-000-20 did not apply to the
communications officers in the LCC.” Id.
¶ 48. On September 22, 2014, the plaintiff challenged
the legitimacy of the policy exception reflected in the
September 21 memorandum with the Chief of Police.
Id. On October 1, 2014, the plaintiff’s
immediate supervisor wrote a “Personnel Performance
Notes” memorandum, noting that the plaintiff
“should have followed the chain of command and
confirming that the policy in SOP AC-000-20 did not apply to
the communications officers in the LCC.” Id.
¶ 49. The next day, the commander of the USCP
communications department reversed the exception reflected in
the September 21 memorandum, and clarified that
“‘[e]ffective immediately, 1301’s are not
to be approved for holidays if the substitute employee would
be working his/her day off . . . .’” Id.
¶ 50. The plaintiff avers that the exception set forth
in the September 21 memorandum, allowing LCC employees to
work holiday assignments even if the holiday fell on a
regular day off, was “applied only in one case- to [the
plaintiff]-. . . and was never applied so as to deprive any
Caucasian communications officer of the opportunity to work
on a federal holiday at holiday pay.” Id.
Additional Duty Shift on November 14, 2014
the plaintiff alleges that he missed an overtime assignment
on November 14, 2014, for which he was already approved,
because his civilian supervisor did not inform him that his
service was required until too late. Id.
¶¶ 28-29. The plaintiff avers that he received the
confirmation email on November 13, 2014, a day the plaintiff
alleges his supervisor “knew was a day off for [the
plaintiff], ” and “kn[e]w that [the plaintiff]
would not see the e-mail until [the plaintiff’s] next
regular work day-November 15-which would be the day
after the day on which [the plaintiff] was supposed
to work the substitute shift.” Id.(emphasis in
original). As a consequence, the plaintiff did not
“show up for the substitute additional duty
shift” because “he did not in fact see the e-mail
[confirmation] until November 15, 2014.” Id.
¶ 29. Due to this communications breakdown, the
plaintiff “los[t] eight hours of overtime, ” and
was “reported to [the plaintiff’s] immediate
supervisor” for “fail[ing] to show up for the
assigned shift.” Id.
Additional Duty Shift on December 27, 2014
the plaintiff was approved for additional duty on December
27, 2014. Id. ¶ 30. The plaintiff alleges that,
due to his supervisor not “forward[ing] the approved
Form 1301 to the appropriate supervisor, ” the
requesting employee’s name “remained on the
schedule as the one assigned to work the shift.”
Id. ¶ 34. As a consequence, the plaintiff was
not notified, by December 25, 2014, that he was needed to
work the additional duty shift, id.¶ 31, and
the requesting employee, in fact, “reported for duty
for that shift, ” id. ¶ 32. Nevertheless,
the plaintiff alleges that the shift supervisor
“decided to treat the situation as if [the plaintiff]
had failed to show up for the substitute additional
duty.” Id. ¶ 33. The requesting employee
who did report to duty was dismissed, and local police were
sent to the plaintiff’s “residence to try to find
him, alarming [his] neighbors and family members.”
his failure to appear for substitute additional duty on
December 27, 2014, the plaintiff alleges that on February 24,
2015, he received a “‘Personnel Performance
Notes’ memorandum . . ., which can be used to make a
negative entry in an employee’s personnel file.”
Id. ¶ 39. This memorandum stated that, per a
November 8, 2014 directive, though “[c]ommunications
officials will attempt to notify employees in advance that
their scheduled additional duty is canceled, ”
“[i]t is recommended that employees call in and check
to confirm.” Id. The plaintiff avers that he
“never received the November 8, 2014 directive and was
not made aware of it until February 24, 2015, ” and
that to his knowledge, “no other affected employees
ever received this directive either.” Id.
Duty Shift on January 24, 2015
the plaintiff alleges that a requesting employee filled out a
Form 1301 requesting the plaintiff, as a substitute employee,
to work additional duty on January 24, 2015. Id.
¶ 38. The plaintiff’s supervisor “approved
the form, gave a copy to [the requesting employee] but
withheld [the plaintiff’s] copy.” Id.
The plaintiff learned that the request was approved through
conversation with the requesting employee, and subsequently
reported to work. Id. He alleges, however,
“had he not happened to learn from [the requesting
employee] that the form was ...