Since he first received Sharon Blackmon-Malloy’s $100 million discrimination lawsuit against the Capitol Police Board, D.C. District Court Judge Emmet Sullivan has dismissed the case once, and twice encouraged settlement negotiations between the two sides.
Yet today, more than three and a half years since it was originally filed, the Blackmon-Malloy case is still very much alive, and in the coming weeks Sullivan is expected to rule on motions that could either dismiss the case for a second time or allow the case to go forward again, possibly as a class-action suit.
But the substance of the case is now somewhat different. The original lawsuit dealt with claims of unfair treatment and firings of black officers, but today a large part of the case includes allegations of retaliation by the Capitol Police Department against still-active black officers who signed on as co-plaintiffs in the original Blackmon-Malloy case.
The original lawsuit, filed in 2001 by 350 current and retired members of the U.S. Capitol Black Police Association, alleged that the Capitol Police Department denied promotions to and unfairly disciplined black officers.
The case was filed under the Congressional Accountability Act, but last fall Sullivan dismissed the suit citing failure by some plaintiffs to complete required counseling and mediation before submitting their case. But under conditions provided by Sullivan, the suit was refiled this past winter by some 25 active and retired officers.
While the number of plaintiffs has been pared down, the Blackmon-Malloy case has grown to include several follow-up suits that allege that the department retaliated against black officers for being co-plaintiffs with Blackmon-Malloy. The most recent case merger occurred last week when Sullivan granted a request by Regina Bolden-Whitaker to join her $20 million discrimination case, which was filed in December 2003 with the Blackmon-Malloy case.
Channing Phillips, a spokesman for the U.S. Attorney’s Office, which represents the Capitol Police Board, said the merger of subsequent retaliation cases “hasn’t changed our approach to the case at all.” But lawyers for the officers say that the new cases only further emphasize the need to bring to light discrimination within the Capitol Police force.
“While [the Blackmon-Malloy case] has been going on since 2001, the Capitol Police has not done a good enough job in preventing subsequent retaliation. That’s the most disheartening aspect of the case,” said Joseph Gebhardt, the officers’ lead attorney. “The Capitol Police can argue that a lot of the facts and issues of the Blackmon-Malloy case happened four years ago, and they can argue that things are better now, but I believe they haven’t done enough to prevent subsequent retaliation.”
While a Capitol Police spokesman said Tuesday that the department couldn’t comment on pending litigation, Chief Terrance Gainer said, “I sincerely believe the strength of this great department rests firmly on our personnel, both sworn and civilian. The diversity of talents, race, opinion, gender, vision and work ethic leads me to believe we strive for excellence.”
And while a motion by the defense to dismiss the case and another by the plaintiffs to certify it as a class-action suit both currently sit before Sullivan, the two sides were sitting down for settlement discussions as recently as two months ago — an option that Sullivan said this past spring he “strongly encourages.”
Despite his encouragement, those discussions broke down after two meetings in June, just as they did after several months of negotiations in 2003.
“Typically speaking, if a party chooses not to seek to settle the matter they believe strongly in their position,” Phillips said.
Gebhardt said that despite twice failing to reach an agreement, the plaintiffs “would always be interested” in future settlement talks.
“I would assume that if the judge’s ruling is adverse to the government’s side they may want to talk settlement again,” he said. “Both sides know what the other sides’ interests are in terms of a settlement. The government is waiting to see from a business standpoint how many claims there are.”
Charles Day, another lawyer for the officers, said he’s hopeful that during his deliberations in the coming weeks Sullivan takes into consideration a recent decision put forth by the Office of Compliance in a case against the Architect of the Capitol’s office. That decision took a broader view than Sullivan has so far on how employees are protected under the Congressional Accountability Act from retaliation in the office.
“We’re making Judge Sullivan aware of it and asking that he take it into account in deciding the reconsideration motion and the motion to dismiss in Bolden-Whitaker,” Day said. “He’s not required to adhere to what the Office of Compliance says, but we think he should be treating their decisions with respect.”
But after almost four years and dozens of briefs and motions on both sides, Gebhardt said the case still has a long way to go.
“At this point all we can do is wait for Judge Sullivan’s next ruling,” he said. “I would say in terms of a big civil litigation case like this one, we’re probably getting close to middle way through.”