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Black Officers Lodge New Discrimination Complaint

Ten years ago last week, more than 100 black Capitol Police officers marched into the John Adams Building, held hands, prayed together and filed what would become one of the largest discrimination complaints in the history of Congress.

The grievance, filed first with the Office of Compliance then taken to court that fall, was that more than 200 black officers were denied promotions, retaliated against and unfairly disciplined or fired, all on the basis of their race.

The Capitol, they charged in the complaint, was a “modern-day version of a 19th-century Southern plantation in law enforcement.”

A decade later, Blackmon-Malloy v. U.S. Capitol Police Board has yet to be resolved and the latest proceedings in the U.S. District Court for the District of Columbia center not on the merits of the claims, but which plaintiffs even have the right to bring them. Defense lawyers have spent the better part of the decade whittling down the number of plaintiffs. Meanwhile, 17 have died.

Capitol Police managers say conditions have improved for African-Americans within their ranks. Black officers, on the other hand, say the department still operates based on a racial hierarchy.

“We knew it would be a lengthy time period,” said retired Capitol Police Lt. Sharon Blackmon-Malloy, the lead plaintiff in the case, who has attended all but one court hearing over the past decade. “But we didn’t expect that it would be ongoing 10 years.”

Instead of celebrating the case as a catalyst for change, on Tuesday, Blackmon-Malloy and several black officers will unveil new racial discrimination charges and lodge a complaint with the D.C. Bar against a Capitol Police attorney.

Ten years on, both sides holding firm, there is no end in sight.

For years, African-Americans were systematically subjected to racial slurs, including an incident in which a noose was hung from a black officer’s locker, officers claim in their lawsuit.

Wholesale institutional discrimination against black officers prevented them from advancing in their careers, they say.

On April 12, 2001, Blackmon-Malloy and more than 100 other officers made their protest march to the Office of Compliance to file their complaint under the Congressional Accountability Act, the measure that provides Congressional employees protection under 11 federal labor laws covering civil rights, fair employment and discrimination.

It was a moment of catharsis, Blackmon-Malloy recalled, and the group thought they were on the path to equality. “Initially we were hopeful,” she told Roll Call in an interview. “We were excited about going through the process.”

But the OOC mediation was fruitless and the case was filed in the U.S. District Court for D.C. in October 2001. By that time, the case had grown to include more than 300 plaintiffs.

They were asking for $100 million in compensation, the creation of a temporary oversight board to monitor issues of discrimination and retaliation protection.

The group was also seeking personnel actions, including three promotions, one reinstatement and the correction of several disciplinary records.

Joe Gebhardt, whose law firm represents the plaintiffs, says the Capitol Police never carried out settlement talks in good faith and that the two parties were never able to come close enough in their conditions to reach an agreement.

“We spent the good part of that year in settlement talks they designed to be a failure,” he said. “In hindsight, I don’t think the settlement discussions were serious.”

The first major court order would not favor the officers. U.S. District Judge Emmet Sullivan dismissed the case in September 2004, citing a failure by some of the plaintiffs to complete required counseling and mediation. Nearly 100 plaintiffs admitted they had not and dropped their names from the case, but more than 200 persisted.

The plaintiffs asked for reconsideration and years passed as the court system tried to make heads or tails of who could sue.

When the plaintiffs took their case to the U.S. Court of Appeals for the District of Columbia, a three-judge panel ruled in August 2009 that the district court should reconsider and sent the case back to answer four basic questions: Which plaintiffs requested OOC counseling within 180 days of a discriminatory act, requested mediation within 15 days of the end of the counseling, provided the Capitol Police Board with a notice of their claim and then filed a court case within 90 days of the end of the mediation?

Plaintiffs who had done so could proceed.

In an exhaustive 300-page motion to dismiss filed last September, the Capitol Police Board once again claimed “virtually none of the plaintiffs in this case timely exhausted their administrative remedies,” laying out the case individually against each plaintiff.

“After nine years of litigation, the time has come for the claims of the few plaintiffs who did exhaust their administrative remedies to move forward, and for the claims of all the officers who did not to be dismissed,” the board wrote.

Last month, the plaintiffs’ lawyers once again laid out their argument, maintaining that the majority of the officers followed through mediation properly. The defense will have a chance to respond and then a judge will again have to rule. The process could take months, perhaps years, longer.

Senate Sergeant-at-Arms Terrance Gainer, Capitol Police chief from 2002 to 2006 and now chairman of the Capitol Police Board, told Roll Call the case has been “painful” and “aggravating” to watch drag on, but that the legal system must run its course.

He said he would like to assuage what he called some legitimate complaints, but the system must first find out who can legally make them.

“Whether it’s been a magistrate in the case or a judge, they haven’t reached a conclusion about that either,” Gainer said. “If it was easy, you would think the people who are not a part of the police department or the plaintiffs would be able to say, ‘OK this is crystal clear, I know what the problem is, I’ll settle it.’ They haven’t been able to figure it out in 10 years.”

Nevertheless, Gainer said the case has had a positive impact on the force by compelling managers of the department to be “more proactive in how it treated people and its policies and procedures.”

Capitol Police Chief Philip Morse said in a statement that he will soon hire a diversity officer to replace one who left the department last year. He said that he is “committed to the continued improvement of the Department’s workforce diversity,” particularly through a more diverse development pool.

But the plaintiffs claim that while what they viewed to be the overt racism of the past has lessened and more black officers are being promoted to sergeants and lieutenants, the upper echelons of leadership are still predominantly white.

Five of the top 34 officers ranked captain or higher are black, and none is a black woman, they say.

At a press conference Tuesday, many of the black officers from the original case will unveil a new complaint against Frederick Herrera, a Capitol Police employment attorney. That claim will be added to more than a dozen spinoff retaliation cases after the Blackmon-Malloy filing.

They say Herrera willingly frustrated mediation efforts and participated in counseling sessions with employees who listed him specifically as the aggressor in discrimination claims.

Based on their past experiences, they have no reason to anticipate a speedy resolution. But Blackmon-Malloy, 51, said she is optimistic nonetheless.

“We know a lot more now than we did 10 years ago,” Blackmon-Malloy said. “We’re hopeful that it will move a lot quicker.”

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