Ross v. U.S. Capitol Police

• Decision Date: 30 June 2016
• Docket Number: Civil No. 14-cv-1400 (KBJ)
• Citation: 195 F.Supp.3d 180
• Parties: Leonard ROSS, Plaintiff, v. UNITED STATES CAPITOL POLICE, Defendant.
• Court: U.S. District Court — District of Columbia

195 F.Supp.3d 180

Leonard ROSS, Plaintiff,

v.UNITED STATES CAPITOL POLICE, Defendant.

Civil No. 14-cv-1400 (KBJ)

United States District Court, District of Columbia.

Signed June 30, 2016

Tamara Louise Miller, Millermasciola, Washington, DC, for Plaintiff.

Andrea McBarnette, U.S. Attorney'S Office, Frederick Michael Herrera, Rafique O. Anderson, United States Capitol Police, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

In this employment-discrimination lawsuit, Plaintiff Leonard Ross asserts that Defendant United States Capitol Police ("USCP" or "Capitol Police")—his prior employer—forced him to retire and otherwise subjected him to unfavorable treatment due to his race and in retaliation for his prior engagement in protected activity. Ross is a plaintiff in an unrelated, longstanding civil-rights lawsuit against USCP; in the instant case, he alleges that USCP made a discriminatory and retaliatory decision to place him on administrative leave, rather than a less-restrictive duty status, after a domestic dispute he had with his wife in late June of 2012. Then, nearly one year later, USCP allegedly sent Ross a notice of proposed termination that cited a soon-to-lapse restriction on his use of a firearm as cause, and after he unsuccessfully attempted to contest the proposed termination, USCP purportedly led him to believe that he could retire in good standing in lieu of being fired—and thereby retain access to his badge and benefits such as payment for accrued leave—only to inform him several weeks after he opted to retire that such was not the case. Ross has filed the instant complaint against USCP to redress this allegedly impermissible series of employment-related actions. He makes two claims: race discrimination (Count I) and retaliation (Count II), both brought under the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. § 1311 et seq.

Before this Court at present is USCP's motion to dismiss Ross's complaint, or in the alternative, motion for summary judgment. (See Def.'s Mot. to Dismiss, or, in the Alternative, Mot. for Summ. J. ("Def.'s Mot."), ECF No. 11, 1–2); Def.'s Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 11, 3–33). For the reasons explained below, this Court will decline USCP's invitation to treat its pending motion as one for summary judgment at this early stage of the case. With respect to the merits of the motion, this Court concludes that certain of Ross's claims—specifically, his claims that USCP improperly placed him on administrative leave and improperly refused to pay his accrued leave upon his retirement—must be dismissed under Federal Rule of Civil Procedure 12(b)(1) because they are based on events for which Ross has failed to satisfy certain non-waivable jurisdictional prerequisites; however, Ross's claims of race discrimination and retaliation stemming from USCP's decision to terminate his employment must be allowed to proceed to discovery, because those claims were adequately exhausted and the related allegations of fact that appear in Ross's complaint are sufficient to state a claim for discrimination and retaliation in violation of the CAA.

Accordingly, USCP's motion will be GRANTED IN PART and DENIED IN PART , and the claims over which the Court lacks jurisdiction will be DISMISSED . A separate order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Relevant Facts

The following recitation is based on the allegations in Ross's complaint, as well as "documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies [.]" Page v. Mancuso , 999 F.Supp.2d 269, 275 (D.D.C.2013) (internal quotation marks and citation omitted).

Leonard Ross was employed as a Capitol Police officer from 1984 to 2013. (See Compl., ECF No. 1, at 2, ¶¶ 7–8.)¹ During this period of time, Ross, who is an African-American man, pursued litigation against USCP on two separate occasions: first, in 2001, he was a proposed class member in a class action that a group of current and former African-American Capitol Police officers filed in the U.S. District Court for the District of Columbia (see id. at 3, ¶ 8); see also Blackmon – Malloy v. U.S. Capitol Police Bd. , No. 01–cv–02221 ("Blackmon – Malloy class action"); and second, in 2002, he filed an individual action against the Capitol Police Board alleging employment discrimination, which was consolidated with the Blackmon – Malloy class action in 2005. (See Compl. at 3–4, ¶¶ 8–10.) The Blackmon – Malloy class action continues today, and during all periods relevant here, Ross has been named as a complainant in that action's governing complaint. (Id. ); see also Joint Fourth Am. Class Action Compl., ¶¶ 56, 63, Blackmon – Malloy v. U.S. Capitol Police Bd. , No. 01–cv–02221, (D.D.C. May 10, 2010), ECF No. 278 (referencing Ross); Proposed Joint Fifth Am. Consolidated Class Action Compl., ¶¶ 217–224, Blackmon – Malloy v. U.S. Capitol Police Bd. , No. 01–cv–02221, (D.D.C. July 10, 2013), ECF No. 396-2 (doing the same).²

The pertinent events for the purpose of the instant action commenced in June and July of 2012. On June 30, 2012, Ross had a domestic dispute with his ex-wife. (See Compl. at 5, ¶ 16.) According to the complaint, USCP placed Ross on administrative leave on July 3, 2012, after he self-reported that incident, despite his requests to be placed on "light duty status" in lieu of administrative leave. (Id. at 6, ¶¶ 21–22.) Then, on July 13, 2012, a protective order (dated July 9) that was rooted in the domestic dispute was served on Ross, and, among other things, the order prohibited him from possessing a firearm for an entire year—until July 9, 2013. (See id. at 5, ¶ 16.)

Nearly one year later, on June 27, 2013, USCP's Human Resources division ("HR") sent Ross a memo notifying him that, "[d]ue to [his] inability to carry a firearm[,]" HR was recommending that his employment be "terminated for [his] failure to meet the conditions of employment." (Termination Recommendation, Ex. 10 to Pl.'s Opp'n to Def.'s Mot., ECF No. 12-14, at 2; see also Compl. at 9–10, ¶ 29 (discussing termination recommendation letter).)³ The memo further explained that Ross had the option of retiring "in lieu of involuntary separation prior to the effective date of the termination action[,]" and that he would "remain in an administrative leave status pending final approval of [his] termination of employment." (Termination Recommendation at 2.) The memo also stated that Ross could appeal the Human Resources division's termination recommendation to Police Chief Kim C. Dine. (Id. )

Ross elected to appeal, and on August 15, 2013, the Chief determined that there was no "basis in the record to concur with Ross's argument[ ]" that his employment should not be terminated. (Letter Regarding Appeal of Recommendation for Termination of Employment ("Appeal Decision Letter"), Ex. 14 to Pl.'s Opp'n to Def.'s Mot., ECF No. 12-16, at 2; see also Compl. at 10–11, ¶ 34 (discussing and quoting from the Chief's decision letter).) In the letter, the Chief emphasized that the proposed termination stemmed from Ross's inability to perform his duties because he could not carry a firearm, and with respect to the fact that the protective order had expired at that point and thus no longer served as an impediment to Ross's ability to possess a firearm, the letter stated that "[a]nytime an employee is unable to perform the essential functions of the position, the fact that he or she can now perform the duties is irrelevant" because the "issue is whether the essential functions of the position could be performed during the period in question." (Appeal Decision Letter at 3.) Concluding that Ross's "termination from employment ... [was] the only appropriate personnel action[ ,]" the letter explained that the Chief's decision to move forward with the termination of Ross's employment would be sent to the Capitol Police Board, which, by statute, had thirty days from receipt of the decision to approve or disapprove the determination. (Id. at 4); see also 2 U.S.C. § 1907(e)(1)(B). At the end of the letter, the Chief also reminded Ross that he could "of course, opt to resign or retire at any time prior to final approval by the Capitol Police Board." (Appeal Decision Letter at 4.)

After receiving Chief Dine's letter, Ross visited Human Resources to discuss next steps. In the complaint, Ross avers that an HR employee told him that he would leave in good standing and would retain certain benefits—such as a "Retired Badge" and "Retirement Credentials"—if he opted to retire. (Compl. at 11–12, ¶ 38.) Ross alleges that he elected to retire, rather than waiting to be terminated, based on that representation, and that, when he did so, he was permitted to retain the retirement credentials and badge that are associated with retiring in good standing. (See id. )

However, on September 13, 2013, HR sent Ross a letter informing him that, "[g]iven your retirement in lieu of termination, as sustained by the Capitol Police Board, you did not retire in good standing[,]" and therefore, "the Retirement Credentials were issued to you in error and need to be returned." (Letter from Jacqueline J. Whitaker to Leonard Ross ("Credential Return Letter"), Ex. 19 to Pl.'s Opp'n to Def.'s Mot., ECF 12-21, at 2; see also Compl. at 12, ¶ 39 (referencing and discussing the letter requesting the return of his credentials).) The letter also stated that Ross's accrued annual leave payment would not be sent to him until he had returned the badge and credentials. (See Credential Return Letter at 2; see also Compl. at 12, ¶ 39–40.) According to the complaint, Ross refused to return the items, and as a result, he did not receive payment for more than 250 hours of accrued annual leave—an amount he says totals more than $12,600. (See Compl. at 12, ¶ 40.)

B. Procedural History

On August 15, 2014, Ross filed the instant...