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Caul v. U.S. Capitol Police

United States District Court, District of Columbia

May 19, 2016

JAMES L. CAUL, Plaintiff,



         The 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.


         The 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.”).

         Following 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 summarized below.

         A. USCP Policies Regarding Overtime Assignments

         USCP 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.

         1.Holiday Assignment Policy

         USCP 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. ¶ 16.

         2.Additional Duty Shift Policies

         USCP 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.

         In 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.’” Id.

         The 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.

         B. Five Incidents of Alleged Racial Discrimination

         The 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 assignments.

         1.Additional Duty Shift on November 27, 2014

         First, 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.

         2.Holiday Duty Shift on Veterans Day 2014

         Second, 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.

         Subsequently, 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. ¶ 51.

         3. Additional Duty Shift on November 14, 2014

         Third, 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.

         4. Additional Duty Shift on December 27, 2014

         Fourth, 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.” Id.

         Due to 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. ¶ 41.

         5.Additional Duty Shift on January 24, 2015

         Fifth, 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 ...

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