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Black Cops’ Class-Action Suit Tossed

A federal judge dismissed a discrimination lawsuit against the Capitol Police Department on Thursday, citing a failure by some of the more than 350 plaintiffs to complete required counseling and mediation before filing the suit more than three years ago.

But under the ruling issued by U.S. District Judge Emmet Sullivan, an unspecified number of officers will still be allowed to pursue discrimination claims as individuals. The judge denied as moot a request by the plaintiffs to consider the case a class action.

“At this time, it is unclear which, if any, of plaintiffs’ claims remain viable,” Sullivan wrote in his Sept. 30 opinion. “Accordingly … it is by the Court hereby ordered that Defendant’s Motion to Dismiss is granted without prejudice to reconsideration of those plaintiffs’ claims that conform to the timely counseling and mediation requests.”

In the lawsuit, Sharon Blackmon-Malloy et al v. U.S. Capitol Police Board, members of the U.S. Capitol Black Police Association alleged the agency denied promotions to, retaliated against, unfairly disciplined or fired black officers.

The group, composed of more than 350 current and retired employees, filed its claims under the Congressional Accountability Act, the measure that provides Congressional employees protection under 11 federal labor laws covering civil rights, fair employment and discrimination.

Officer Michael Lauer, a Capitol Police spokesman, praised the court’s ruling as “a positive reflection upon the department.”

“It’s the position of the department to offer equal opportunities to everyone,” Lauer said.

The officers’ lead attorney, Joseph Gebhardt, said Thursday he still was studying the decision, but plans to file a motion for reconsideration on the officers’ individual claims.

“The judge has given us an opportunity to file more evidence and we’re going to take advantage of that opportunity and we’re going to actively pursue the case,” Gebhardt said.

Under the ruling, the officers are provided a one-month window, closing Nov. 1, to refile their individual complaints. The judge noted that the plaintiffs must provide documentation of “the allegedly discriminatory act” as well as subsequent counseling and mediation requests, including proof of attendance.

“Certainly they’re entitled to follow up if the court has ruled so,” Lauer said in response.

Those officers who did not complete administrative procedures — namely counseling and mediation — required by the CAA before filing the lawsuit in U.S. District Court will not be eligible for reconsideration.

“At this juncture, it appears to this Court that only employees who have completed counseling and mediation have a right of action under the CAA,” Sullivan wrote.

The decision echoes arguments made by the U.S. attorney’s office, which represents the Capitol Police, in court documents earlier this year.

During a May hearing before Sullivan, Assistant U.S. Attorney Laurie Weinstein argued that a majority of the plaintiffs failed to complete the necessary administrative steps, and that only a handful — from six to eight officers — were eligible to pursue a lawsuit in federal court.

While acknowledging that 88 officers did not finish the formal CAA mediation process, the plaintiffs’ attorneys pursued class-action jurisprudence known as “vicarious exhaustion,” which requires only one named plaintiff to complete mediation when other employees are pursuing the same claims.

In his decision, however, Sullivan disagreed with the plaintiffs’ argument.

“Upon further analysis, it appears that vicarious exhaustion is barred by the plain meaning of the CAA, which only permits this Court to grant relief to covered employees who have ‘undertaken and completed the procedures,’” Sullivan wrote.

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