United States District Court, District of Columbia
A. HOWELL Chief Judge.
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
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
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.
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.
plaintiff then sent a text message to the complainant
“to report Sergeant Breiterman’s harassing
comments.” Id. ¶¶ 24, 28. The
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
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”).
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.
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).
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.