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Brady v. United States Capitol Police

United States District Court, District of Columbia

August 8, 2016



          BERYL A. HOWELL Chief Judge.

         The plaintiff, Officer Kristin Brady, brings this action against her employer, United States Capitol Police (“USCP” or “defendant”), pursuant to Section 207(a) of the Congressional Accountability Act (“CAA”), 2 U.S.C. § 1317(a), asserting a single claim for unlawful retaliation. Compl. ¶¶ 35-36. By her own admission, the plaintiff used foul language to relay sexually-graphic gossip to a co-worker, prompting the defendant’s Office of Professional Responsibility (“OPR”) to investigate and ultimately discipline the plaintiff. Id. ¶¶ 24-27, 32- 33. Notwithstanding the plaintiff’s own admitted conduct, she now claims that by issuing this discipline, the defendant retaliated against her in violation of the CAA. Id. ¶¶ 11, 36. The plaintiff’s claim fails, however, because she makes no allegation that she ever opposed unlawful discrimination based on a protected class, nor does she allege that she participated in any formal proceedings protected by the CAA. See generally Compl. Pending before the Court is the defendant’s motion to dismiss the complaint for failure to state a claim, under Federal Rule of Civil Procedure (12)(b)(6). Def.’s Mot. Dismiss (“Def.’s Mot.”), ECF No. 4. For the reasons set forth below, this motion is granted.

         I. BACKGROUND

         On July 1, 2014, a USCP officer (“complainant”) filed a written complaint with the USCP concerning a conversation among other USCP officers that the plaintiff had allegedly overheard and relayed to the complainant. Id. ¶¶ 9-10. Specifically, the complainant reported: “Sergeant Jodi Breiterman was overhead by officers talking in the Capitol Division office. She intimated that I received my assignment due to my relationship with Deputy Chief Roullier and said something to the effect of ‘who do I have to sleep with to get a cushy assignment.’” Id. ¶ 10. The complainant concluded, “[i]f true, then supervisors of the Department have made statements that perpetuated rumors and have contributed to a hostile work environment. The Department has not taken any steps to challenge the rumor that my assignment was the result of a quid pro quo relationship.” Id.

         Pursuant to this written complaint, the USCP’s OPR initiated an investigation. Id. ¶ 11. In the course of the investigation, the complainant identified the plaintiff “as the individual who notified her about Sergeant Breiterman’s comments” and provided OPR with a copy of a text message that the plaintiff had sent the complainant describing the comments. Id. ¶¶ 12-13.

         Approximately, two weeks later, on July 16, 2014, OPR interviewed the plaintiff. Id. ¶ 14. The OPR Investigator informed the plaintiff “that she was being interviewed as a ‘witness, ’” and the plaintiff “received paperwork confirming [the same].” Id. ¶ 15. The plaintiff reported to the OPR Investigator that in late May 2014, she “observed Sergeant Jodi Breiterman . . . . say the name ‘Joe, ’ and ‘two months, ’” as well as make other comments about the complainant. Id. ¶¶ 17-19. She further “heard Sergeant Breiterman say ‘is that what I have to do to get ahead in this place?’” Id. ¶ 22. The plaintiff was aware that the complainant had previously been married to another USCP officer, Joe, “and that rumors recently surfaced that the complaining officer was in a relationship with a superior officer.” Id. ¶ 20. Based on this conversation, the plaintiff “believed that Sergeant Breiterman was spreading rumors about the complaining officer and creating a hostile work environment.” Id. ¶ 23.

         The plaintiff then sent a text message to the complainant “to report Sergeant Breiterman’s harassing comments.” Id. ¶¶ 24, 28. The message stated:

YOU DID NOT HEAR THIS FROM ME! Breiterman is pissed off that she didn’t get her transfer to Intel. cobbin got it over her so now she is on a rampage and trying to take down anyone in her path which includes you. I just walked in on her bashing you in the middle of the capitol division office for everyone to hear. basically saying who’s dick do I need to suck to get ahead in this place and going through the whole story like she knew it firsthand from your s[e]paration today.

Id. ¶ 25. The plaintiff explained to the OPR Investigator that the statements in this text message were not direct quotes, but rather “were paraphrasing” and that “she could not recall exactly what Sergeant Breiterman said, although she was fairly certain Sergeant Breiterman did not use profanity.” Id. ¶¶ 26-27. Shortly after the interview with OPR, the plaintiff “learned that her status in the investigation had been changed to ‘Respondent’” rather than witness. Id. ¶ 30. “On or before December 31, 2014, [USCP] learned that the [complainant] filed a complaint with the Office of Compliance regarding her treatment by [USCP].” Id. ¶ 31. Several days later, on January 5, 2015, in accordance with OPR’s instructions, the plaintiff was charged with violating a USCP Rule of Conduct against making “Improper Remarks, ” by sending an “exaggerated text message to [the complainant] . . . . contain[ing] information that was very specific and sexually graphic. Brady’s text message was malicious, untruthful, and frivolous against or about other members of the Department in the workplace, and contributed to the filing of the complaint [by the complainant].” Id. ¶ 33 (citing “January 14, 2015 CP-534 Forfeiting Eight Hours of Time/Pay”).[1]

         The plaintiff apparently then filed her own complaint of retaliation, “completed counseling and mediation required by 2 U.S.C. §§ 1402 and 1403 and received notice that mediation ended on May 15, 2015.” Id. ¶ 4. As stated in the End of Mediation Notice, the plaintiff’s mediation request “was based upon allegations that the employing office violated sections 201 and 207 of the [CAA].” Compl. Ex. A (“End of Mediation Notice”) at 1, ECF No. 7. On August 12, 2015, the plaintiff filed the complaint initiating this lawsuit. See generally Compl.


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 134 S.Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s liability, ” but allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “‘grounds’” of “‘entitle[ment] to relief, ’” Twombly, 550 U.S. at 555 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), and “nudge[ ] [the] claims across the line from conceivable to plausible, ” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (“We assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in a plaintiff’s favor.” (citing Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The Court “need not, however, ‘accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the complaint.’” Nurriddin, 818 F.3d at 756 (alteration in original) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

         III. ...

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