A female Capitol Police officer who alleges she was discriminated against by the department because of her gender and endured retaliation for sharing with the media a photo of a Capitol Police officer’s unattended gun is appealing U.S. District Judge Timothy J. Kelly’s decision against her.
Lawyers for Officer Jodi Breiterman filed an appeal Thursday with the U.S. Court of Appeals for the District of Columbia Circuit arguing that Kelly’s ruling was wrong on three fronts.
They argue that: One, Kelly erred in ruling the government’s interest outweighed Breiterman’s concern for the public to know that a Capitol Police officer left an unsecured firearm in a Capitol Visitor Center bathroom. Two, Kelly should have permitted a jury to consider all 18 male Capitol Police officer comparators provided by Breiterman who were punished less severely than her. (Kelly, in his decision, considered only one of the 18 comparators provided.) Three, Kelly wrongfully found that Breiterman did not have enough evidence to prove she was unlawfully discriminated against.
Kelly ruled on Sept. 4 that the Capitol Police did not engage in unlawful gender discrimination against Breiterman, a veteran officer who rose to the rank of sergeant and was recognized as officer of the year in 2011, when it suspended and demoted her from the rank of sergeant.
Kelly, who was appointed by President Donald Trump in 2017, granted the Capitol Police summary judgment, meaning Breiterman lost the case before even reaching a jury trial. Further, the federal judge granted summary judgment to the Capitol Police on two retaliation claims: one under the First Amendment and one under the Congressional Accountability Act.
Eva Malecki, a Capitol Police spokesperson, did not respond to a request for comment.
The department found itself in a public relations debacle Thursday and Friday over media reports that it ordered National Guard troops to leave the Capitol during their on-duty breaks and gather outside or in nearby parking garages. After bipartisan outrage from members of Congress, Guard troops were allowed back into the Capitol buildings.
Anita Mazumdar Chambers, an attorney for Breiterman, did not comment.
The appeal marks yet another step in the litigation process that began when Breiterman filed her civil lawsuit against the department in November 2016.
Breiterman in 2014 pursued a role in the Capitol Police’s Protective Services Bureau. She was selected by then-Deputy Chief Chad Thomas (now an assistant chief) as the top pick for the job, but the decision required input from others in management, and then-Assistant Chief Daniel Malloy vetoed the decision to promote her. Breiterman alleged she was not picked for the job because of her race. Breiterman is white, Malloy is Black, and the officer who was ultimately promoted is also Black. Breiterman did not pursue this claim past mediation.
Months later, Breiterman said a female private first class was transferred to a specialty unit because of a romantic relationship with a deputy chief and noted that moving up in the department was associated with sexual relationships. The person to whom Breiterman’s comments were directed filed a complaint with the department’s Office of Professional Responsibility to investigate her conduct. Breiterman was given a two-day suspension in September 2015 for her comments.
At the start of 2015, Breiterman responded to an incident in which a congressional staffer found a Capitol Police officer’s gun left unattended in a Capitol Visitor Center bathroom. She photographed the gun, which was stuffed into a toilet cover dispenser, with her work phone. The officer who left their gun was suspended for six days without pay.
Breiterman sent the photo to a CQ Roll Call reporter, Hannah Hess, who subsequently published a story in May of that year detailing the incident. The Capitol Police department was widely mocked after the story ran, including on “Jimmy Kimmel Live!” which resulted in a vigorous search by the Office of Professional Responsibility to find out who sent the photo to Hess. Breiterman admitted to the Capitol Police that she had sent the photo.
When the investigation was completed in September, Senior Counsel Scharon Ball wrote a memo calling for Breiterman to be demoted from her rank of sergeant.
Thomas disagreed with the decision to demote Breiterman, but then-Chief Matthew Verderosa demoted her for making inappropriate comments, exchanging allegedly inappropriate text messages with her supervisors and sharing the photo of the gun.
Breiterman’s lawsuit has brought to light a pattern of male officer misconduct that was met with light punishment from leadership. The disciplinary records for male comparators expose instances of egregious misconduct. One example is when a Capitol Police officer in 2017 left a fully loaded assault rifle unattended and it was recovered by a parking lot attendant.
If Breiterman wins the appeal, one likely outcome is that the appellate court would send the case back to Kelly for a jury trial.