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Breiterman v. United States Capitol Police

United States District Court, District of Columbia

November 7, 2017

JODI BREITERMAN, Plaintiff,
v.
UNITED STATES CAPITOL POLICE, Defendant.

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Movant Capitol Police Board's (“Movant” or “CPB”) Motion to Quash and for a Protective Order (“Motion to Quash”) [ECF No. 25], which seeks to quash two subpoenas served by Plaintiff Jodi Breiterman (“Plaintiff” or “Ms. Breiterman”) on non-parties Fay Ropella, Inspector General of the United States Capitol Police (“USCP”), and the USCP Office of Inspector General (“OIG”). The Motion to Quash and all other discovery disputes were referred to the undersigned Magistrate Judge for resolution.[1] See 6/9/17 Minute Order. Having considered the parties' submissions and attachments thereto, [2] the arguments presented at the motions hearing held August 15, 2017 (“Motions Hearing”), and after reviewing the CPB's in camera submissions, the Court GRANTS-IN-PART and DENIES-IN-PART Movant's Motion to Quash and DENIES without prejudice Movant's Motion for Protective Order.

         BACKGROUND

         I. FACTUAL BACKGROUND [3]

         Ms. Breiterman began working at the USCP in January 2002. See Second Am. Compl. ¶ 11, ECF No. 17. Prior to the events at issue in this action, Ms. Breiterman worked as a Project/Management Analyst for the USCP. See Id. ¶ 14. Ms. Breiterman's claim centers on two incidents that allegedly occurred in 2014 and 2015, at which time she was an Administrative Sergeant. See Id. ¶¶ 27, 121-149.

         A. 2014 Incident

         In 2014, Ms. Breiterman told her supervisor that she felt that female officers “had to sleep with someone to get promoted within the USCP.” Id. ¶ 29. A married female officer complained about Ms. Breiterman's statement, and Ms. Breiterman received a two-day suspension for making an improper comment. See Id. ¶¶ 30-33. Ms. Breiterman appealed her suspension. Id. ¶ 34. On September 9, 2015, Ms. Breiterman learned from Human Resources that the USCP would impose the two-day suspension, without pay. Id. ¶ 108. Ms. Breiterman asserts that USCP failed to provide the required written notice of its denial of her appeal before imposing the suspension. See Id. ¶¶ 108-11.

         B. 2015 Incident

         On January 29, 2015, a congressional staffer found a handgun in a public bathroom at the Capitol Visitor's Center. Id. ¶ 36. Ms. Breiterman and several other officers reported to the scene, and Ms. Breiterman found the handgun lodged in the toilet paper holder. See Second Am. Compl. ¶¶ 37-38. Ms. Breiterman and other officers took photos of the handgun, which was later confirmed to be a USCP service weapon. See Id. ¶¶ 39, 41.

         Ms. Breiterman received a call from Hannah Hess (“Ms. Hess”), a reporter for the publication, “Roll Call, ” in or around February 2015. See Id. ¶ 46. During that call, Ms. Hess asked Ms. Breiterman about several incidents involving USCP handguns left in other locations, including the incident involving a handgun left in the bathroom of the Capitol Visitor's Center. See Id. ¶¶ 48-53. Ms. Breiterman confirmed that she knew about the Capitol Visitor's Center incident and had taken a photo. See Id. ¶¶ 54-55. Ms. Hess requested and obtained the photo from Ms. Breiterman and subsequently published the photo with an article about the incident. See Id. ¶¶ 56-58. Ms. Breiterman was not named in the article. Id. ¶ 60.

         The USCP then began an investigation into who shared the photo with Ms. Hess. Inspector Kim Bollinger, commander of the USCP's Office of Professional Responsibility (“OPR”) allegedly told USCP Captain Drew Bollinger, her husband, that OIG and OPR were having meetings to determine who provided the photo and intended to terminate that individual once found. See Id. ¶¶ 62-64. On June 22, 2015, Ms. Breiterman was called to Internal Affairs and received a letter explaining that she was under investigation. Id. ¶ 69. At this meeting, Ms. Breiterman admitted that she had given the photo to Ms. Hess, and Ms. Breiterman was suspended indefinitely. See Id. ¶¶ 69-76. During Ms. Breiterman's suspension, another Sergeant told Ms. Breiterman that he had been questioned by Internal Affairs; OPR neither investigated nor disciplined him for disclosing that he had been questioned. Id. ¶¶ 67-68, 82-83.

         From June 23, 2015 to May 4, 2016, Ms. Breiterman was suspended and required to remain at home from 8:00 a.m. to 4:00 p.m. See Id. ¶¶ 86-87. Ms. Breiterman also was required to call Internal Affairs if she needed to leave her home during that time period. See Second Am. Compl. 86. On March 8, 2016, Ms. Breiterman, who by then was represented by counsel, attended a meeting with USCP officials; at that meeting she learned that, as a result of the investigation, the USCP recommended that she be demoted from Sergeant to Private First Class. Id. ¶¶ 112-13. Ms. Breiterman appealed the demotion recommendation. Id. ¶ 119. On May 3, 2016, the USCP denied Ms. Breiterman's appeal and demoted her. Id. ¶ 120.

         II. PROCEDURAL BACKGROUND

         On May 11, 2016, Ms. Breiterman filed a Complaint against the USCP, alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-1, and violations of her right to freedom of speech under the First Amendment. Compl., ECF No. 1. On January 9, 2017, Ms. Breiterman filed a Second Amended Complaint. See generally Second Am. Compl., ECF No. 17. Ms. Breiterman claims that male employees have committed similar infractions to hers, yet have not faced disciplinary action. See Id. ¶¶ 114-18. Ms. Breiterman further alleges that she was suspended for making comments that addressed the issue of gender discrimination. See Id. ¶ 138. Finally, Ms. Breiterman claims that she had a right to share the photo of the handgun because of her concern for public safety, and that the punishment she received violated her right to free speech. See Id. ¶¶ 146-47. The USCP filed an answer to Ms. Breiterman's Second Amended Complaint on February 3, 2017. See Def.'s Answer, ECF No. 20.

         The current discovery dispute arises from two subpoenas that Ms. Breiterman served on Ms. Fay Ropella, Inspector General of the USCP, and OIG. See Movant's Mot. to Quash at 2, ECF No. 25-1; Pl.'s Opp'n at 3, ECF No. 26. The subpoenas seek production of certain documents and testimony. Movant's Mot. to Quash, Ex. 1, ECF No. 25-2 (Subpoena to Fay Ropella) (hereinafter “Ropella Subpoena”) and Ex. 2, ECF No. 25-3 (Subpoena to OIG, USCP) (hereinafter “OIG Subpoena”). The CPB, [4] a non-party to this action, moved to quash the two subpoenas issued to Ms. Ropella and OIG, and alternatively sought a protective order if the Court does not quash the subpoenas. See Movant's Mot. to Quash, ECF No. 25. After the opposition and reply were filed, Ms. Breiterman obtained leave to file a Surreply. See 8/14/2017 Minute Order; Pl.'s Surreply, ECF No. 37.

         By Minute Order dated August 4, 2017, the Court requested that the CPB submit for in camera review a copy of the OIG Report at issue in the subpoenas. See 8/4/2017 Minute Order; see also Movant's Mot. to Quash, Ex. 4, ECF No. 25-5 (hereinafter “Privilege Log”) (Doc. Number 31). On August 15, 2017, the undersigned held a Motions Hearing at which counsel for the Plaintiff, Defendant, and Movant were present. See 8/15/2017 Minute Entry. The undersigned heard argument and took the motion under advisement. After the Motions Hearing, the Court issued three Orders directing the CPB to submit additional documents for in camera review and to further supplement the record. See 8/15/2017 Minute Order; Order, ECF No. 40; 10/23/17 Minute Order. The CPB timely submitted the requested information.

         LEGAL STANDARD

         I. MOTION TO QUASH

         Federal Rule of Civil Procedure 26 allows for “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). As part of this discovery, Federal Rule of Civil Procedure 45 permits a party to issue a subpoena to a non-party to command attendance at a deposition or to produce or permit inspection of documents, information, or tangible things. Fed.R.Civ.P. 45(a)(1). Rule 45 subpoenas may only be used to compel production of information that is discoverable under Rule 26. See AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014). Therefore, upon timely motion, a court must quash or modify a Rule 45 subpoena if the subpoena “requires disclosure of privileged or other protected matter[s], if no exception or waiver applies; or subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3); cf. In re Subpoena to Goldberg, 693 F.Supp.2d 81, 83 (D.D.C. 2010) (noting resolution of motion to quash governed by Rules 26 and 45 of the Federal Rules of Civil Procedure). That standard “applies to both document and testimonial subpoenas.” Watts v. Sec. and Exch. Comm'n, 482 F.3d 501, 508-09 (D.C. Cir. 2007) (citation omitted).

         The party moving for relief bears the burden of showing that the subpoena should be quashed or modified. See Call of the Wild Movie, LLC v. Does 1-1, 062, 770 F.Supp.2d 332, 354 (D.D.C. 2011); see also Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984). “The quashing of a subpoena is an extraordinary measure, and is usually inappropriate absent extraordinary circumstances.” Flanagan v. Wyndham Int'l Inc., 231 F.R.D. 98, 102 (D.D.C. 2005) (citations omitted). Accordingly, a “movant's burden is greater for a motion to quash than if [the movant] were seeking more limited protection.” Id. (citing Westinghouse Elec. Corp. v. City of Burlington, Vt., 351 F.2d 762, 766 (D.C. Cir. 1965)); see also U.S. Dep't of the Treasury v. Pension Benefit Guar. Corp., 301 F.R.D. 20, 25 (D.D.C. 2014).

         II. MOTION FOR PROTECTIVE ORDER

         Federal Rule of Civil Procedure 26 provides that “for good cause” a court may issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The party requesting the protective order bears the burden of showing good cause “by demonstrating specific evidence of the harm that would result.” Jennings v. Family Mgmt, 201 F.R.D. 272, 275 (D.D.C. 2001); Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998); see also Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21 (D.D.C), on reconsideration, 232 F.R.D. 6 (D.D.C. 2005) (reconsidering a separate proposition). Protective orders may “deny discovery completely, limit the conditions, time, place, or topics of discovery, or limit the manner in which the confidential information is to be revealed.” Univ. of Mass. v. Roslin Inst., 437 F.Supp.2d 57, 60 (D.D.C. 2006).

         ANALYSIS

         I. MOTION TO QUASH

         The CPB moves to quash two subpoenas: one issued to Fay Ropella, current Inspector General of the USCP; and one issued to OIG. The subpoenas request both testimony and the production of documents, and overlap substantially. Both subpoenas seek production of the following documents:

. Any documents regarding U.S. Capitol Police's (“USCP”) disciplinary policies and practices, including but not limited to: any investigation or report by the Office of Inspector General (“OIG”) regarding USCP's disciplinary process, including but not limited to whether USCP consistently applied its disciplinary policies and practices.
. Any documents regarding recommendations the OIG made to Chief Matthew Verderosa or USCP or any USCP officials within the past five years related to USCP's disciplinary policies, practices, or processes.
. Any documents showing summaries, reports, or compilations regarding the volume and nature of disciplinary actions that the USCP took within the past five years.

         Ropella Subpoena at Attach. A (Items #1-3) (footnote omitted); OIG Subpoena at Attach. A (Items #4-6).

         In her subpoena to OIG, Ms. Breiterman also requests that OIG designate one or more officers, directors, managing agents, or other persons to testify about:

. USCP's disciplinary policies and practices, including but not limited to: any investigation or report by the Office of Inspector General (“OIG”) regarding USCP's disciplinary process, including but not limited to whether USCP consistently applied its disciplinary policies and practices.
. Recommendations the OIG made to Chief Matthew Verderosa or USCP or any USCP officials within the past five years related to USCP's disciplinary policies, practices, or processes.
. The manner in which the OIG maintains summaries, reports, or compilations regarding the volume and nature of disciplinary actions that USCP took ...

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