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Second Class-Action Suit May Be Filed Against Capitol Police

Attorneys representing two Capitol Police officers are taking steps toward a new class-action lawsuit against the law-enforcement agency, alleging that the duo have faced retaliation for their involvement in an ongoing discrimination suit against the department.

Attorney Charles Day said the officers, Arnold Fields and Regina Bolden-Whitaker, assert they have been subject to “retaliatory discipline” because of their prominent role as class officers in the initial lawsuit, filed in 2001 by members of the U.S. Capitol Black Police Association.

Settlement negotiations are ongoing in that case, in which association members alleged the law-enforcement agency denied promotions, retaliated against and unfairly disciplined or fired black officers.

In the new allegation, the officers assert they have been subject to retaliation including vandalism of their automobiles and disciplinary action, such as the issuing of unfavorable, permanent notations in their employment files through a form known as a “535 disciplinary report.”

“What is happening is that the department has taken allegations of minor infractions, they have then retroactively applied new rules to those minor infractions, and they have inflicted severe penalties on them …” Day said. “These [reports] are normally reserved for very, very serious offenses, and their use in situations where it’s a question of whether your radio was on over a lunch break or whether you signed a deputation form when you should have, it’s wholly disproportionate and inappropriate, and obviously would not be taking place if it weren’t for the fact that, A, these are African-American officers, and, B, for the fact that they’ve been playing a prominent role in the class action.”

Both officers are currently in the early stages of counseling or mediation through the Office of Compliance, but Day plans to request the complaints be consolidated and considered as a class complaint on behalf of all 360 black police officers who are members of the 2001 lawsuit.

That action could set the stage for filing a second class-action discrimination complaint in the U.S. District Court, Day said, noting: “The administrative process needs to be completed before the class can go to court.”

The officers could face an obstacle in filing a class complaint, however.

An official for the Office of Compliance said that under the 1995 Congressional Accountability Act, which extended labor and safety laws to cover Congressional workers, each individual must file a separate complaint and follow through with counseling or mediation.

“If somebody comes in and says they want to bring a case on behalf of other unnamed parties, as an employee-generated case, we would simply tell them, ‘We’ll certainly take your name and your case, and if you could bring in other people we’ll be happy to talk to as many people as you want us to talk to,” the official said. “But we have to open a case for each person. They might be able to be handled together, but there has to be a request for each individual.”

Day said, if necessary, he will dispute the requirement outlined by the official.

In a response to the formal announcement scheduled for next week, Assistant Police Chief Robert Howe said: “We have not seen the complaint. We continue to work with the complainants, and we hope to reach a satisfactory resolution.”

It is possible, though unlikely, that the case could be resolved before reaching U.S. District Court, Day said.

“A settlement is possible at any time if you have two parties with goodwill and a desire to compromise on a fair settlement,” he said. “Our first concern is to see that this kind of retaliation and discrimination against the officers stops.”

In their complaint, the officers are “seeking corrective action on the disciplinary reports and their removal from the files and restoration of the clean records of these officers, the accurate records of these officers performance,” Day said. The officers may also seek monetary damages.

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