Case 1:01-cv-02221-EGS Document 127 Filed 03/31/06 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHARON BLACKMON-MALLOY et al.,
Plaintiffs,
v.
UNITED STATES CAPITOL POLICE BOARD,
Defendant.

Civil Action 01-2221 (EGS/JMF)

ORDER This case was referred to me by Judge Sullivan for Report and Recommendation regarding whether any class members are entitled to relief from his September 30, 2004 Memorandum Opinion and Order granting defendant’s motion to dismiss. A status conference was held on March 16, 2006 to resolve plaintiffs’ counsel Gebhardt and Associates, LLP’s Motion to Withdraw as Counsel [#116], Motion to Strike [#119], and Second Motion to Withdraw as Counsel [#120] and to establish a procedure and time line for submission of evidence regarding whether individual plaintiffs are entitled to relief from Judge Sullivan’s September 30, 2004 order. As discussed at the status conference, it is, hereby, ORDERED that: 1. Cheryl Duncan-Woodland, Robin Harris-Sanabria, Charles Nanton, and Cynthia
Parker are dismissed as plaintiffs without prejudice; and it is further ORDERED that 2. Gebhardt and Associates, LLP’s Motion to Withdraw as Counsel [#116] is

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DENIED as to plaintiffs Kenneth Baldwin, Robert Fountain, and Brenda Lucky and GRANTED as to the other plaintiffs named in that motion; and it is further ORDERED that 3. Gebhardt and Associates, LLP’s Motion to Strike [#119] is GRANTED; and it is further ORDERED that 4. Gebhardt and Associates, LLP’s Second Motion to Withdraw as Counsel [#120] is DENIED as to Robert Braswell, and Dale Veal, DENIED without prejudice as to Clinton Bradford, who did not receive notice of the March 16, 2006 hearing, and GRANTED as to Cynthia Parker; and it is further ORDERED that 5. Gebhardt and Associates, LLP and Nathaniel D. Johnson & Associates, LLC shall separately file, no later than May 5, 2006, a list of the plaintiffs that they currently represent; and it is further ORDERED that 6. In facilitation of Judge Sullivan’s September 4, 2005 order instructing the parties to file a chart providing, for each plaintiff, their exact cause of action and pertinent information regarding their exhaustion of administrative remedies, the parties are instructed to work together to complete Chart A and Chart B, which are provided as exhibits to this order, and to file the completed charts with the Court no later than May 31, 2006. The Court will e-mail Excel versions of both Chart A and Chart B to counsel shortly. Once the Court has received and reviewed the charts, it will arrange a status conference.
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SO ORDERED. Dated:

__________________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE

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 Case 1:01-cv-02221-EGS Document 166 Filed 05/15/07 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

SHARON BLACKMON-MALLOY, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civ. Action No. 01-2221

)

(EGS/JMF)

UNITED STATES CAPITOL POLICE

)

BOARD,

)

)

Defendant.

)

__________________________________________)

SUPPLEMENTAL REPORT AND RECOMMENDATION This case was referred to me by Judge Sullivan for a Report and Recommendation on whether any class members are entitled to relief from his September 30, 2004 Memorandum Opinion and Order granting defendant=s motion to dismiss without prejudice to reconsideration of claims that conform to the timely counseling and mediation requirements of the Congressional Accountability Act (“CAA”). See 2 U.S.C. §§ 1301-1438.1 Following review of charts submitted by counsel to indicate the exhaustion of administrative remedies in conformity with Judge Sullivan’s order, on March 19, 2007, this Court submitted a Report and Recommendation (the “March Report”) to proceed with certain claims (collected in Appendix D to the March Report), dismiss certain claims with prejudice for failure to exhaust administrative remedies (collected in Appendix B to the March Report), and dismiss other claims without prejudice pending submission by Plaintiffs of documentation that administrative remedies were exhausted (collected in Appendix C to the March Report). Blackmon-Malloy v.

1 All citations to the United States Code are to the electronic versions available in Lexis and Westlaw.

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United States Capitol Police Bd., Civ. No. 01-2221, 2007 WL 841019 (D.D.C. Mar. 19, 2007). This Court has received and reviewed affidavits submitted by Plaintiffs included in Appendix C and now recommends that all claims in Appendix C be dismissed with prejudice for failure to exhaust administrative remedies. In other words, the claims in Appendix D to the March Report are the only claims this Court finds in compliance with Judge Sullivan’s Memorandum Opinion of September 30, 2004, and as a result, this Court recommends proceeding only with those claims indicated in Appendix D to the March Report. I. BACKGROUND
The history and procedural posture of this case are provided in detail in the March Report. See Blackmon-Malloy, 2007 WL 841019, at *2. In his Order of September 30, 2004, dismissing Plaintiffs’ complaints without prejudice to reconsideration of those Plaintiffs’ claims that conform to counseling and mediation requirements, Judge Sullivan ordered Plaintiffs, when moving for reconsideration in the lead action, to “clearly state (and provide appropriate documentation for) the allegedly discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended.” Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 97, 113 (D.D.C. 2004) (Sullivan, J.). Judge Sullivan also ordered Plaintiffs in the consolidated actions to explain how the claims met the exhaustion requirements identified in his Order. Id. In doing so, each Plaintiff was to “detail the allegedly discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was
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attended.” Id. Counsel for Plaintiffs submitted charts detailing Plaintiffs’ claims. This Court
then painstakingly examined each claim by each Plaintiff to determine whether the administrative remedies were exhausted in accordance with Judge Sullivan’s Order. Unfortunately, in several instances, the representations in counsel’s charts were contradicted by Plaintiffs’ sworn declarations. Blackmon-Malloy, 2007 WL 841019, at *4. Additionally, in several other instances, counsel’s charts made representations of facts as to which Plaintiffs’ declarations were silent. Id. The result was a collection of claims asserted as in compliance with Judge Sullivan’s Order, but without the supporting evidence showing exhaustion as necessary. As Judge Sullivan held that only bare allegations of compliance with administrative remedies without supporting documentation were inadequate to support a claim under the CAA, Blackmon-Malloy, 338 F. Supp. 2d at 107, this Court allowed Plaintiffs to provide affidavits and supplement their declarations with that necessary support, Blackmon-Malloy, 2007 WL 841019, at *15. II. DISCUSSION OF AFFIDAVITS FILED IN RESPONSE TO THE
COURT’S PREVIOUS REPORT AND RECOMMENDATION Appendix C to the March Report included claims of Plaintiffs Frank Adams, Tammie Green, Ave Maria Harris, Larry Ikard, Derrick Macon, Brent Mills, and Richard Webb. Affidavits accompanied by several documents from the Congressional Office of Compliance were individually submitted on behalf of all Plaintiffs included in Appendix C to the March Report, except for Tammie Green.2 None of the affidavits or supporting documentation overcome the deficiencies of the previous filings.
2 Additionally, an affidavit was filed on behalf of Plaintiff Gary Goines, although his claims were not included in Appendix C. As a result, the Court disregards his filing.
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1. Frank Adams, Brent Mills, and Richard Webb
As described in the March Report, Frank Adams, Brent Mills, and Richard Webb
all failed to demonstrate personal attendance at counseling and mediation for certain pro se claims, which were included in Appendix C.3 Though dates were submitted in chart
form indicating administrative exhaustion of their pro se claims, the sworn statements
filed with Plaintiffs’ Motion for Reconsideration were silent as to actual compliance with
the exhaustion requirements of with Judge Sullivan’s order. Blackmon-Malloy, 2007 WL
841019, at *6, *12, *14. The Court therefore included the claims in Appendix C to the
March Report and allowed these Plaintiffs additional time to supplement their previous
filings with the necessary supporting documentation.
The affidavits submitted by Plaintiffs Frank Adams, Brent Mills, and Richard
Webb follow a nearly identical template. See Plaintiff Frank Adams’ Reply to the Court’s
Report and Recommendation, Affidavit [#156] (“Adams Aff.”); Notice of Filing,
Affidavit Statement of Brent Mills [#161] (“Mills Aff.”); Notice of Filing, Affidavit
Statement of Richard Webb [#160] (“Webb Aff.”). The affidavits each state:
[Plaintiff] exhausted all administrative remedies in the beforementioned cases (1) by officially requesting and successfully proceeding through the counseling process and (2) by personally attending mediation in complete compliance with the administrative and procedural requirements of the Congressional Accountability Act (CAA) and Congressional Office of Compliance.
Adams Aff. at 1; Mills Aff.; Webb Aff. The affidavits do not define what it means to
“successfully [proceed] through the counseling process.” According to Judge Sullivan,
3 Other claims filed by Frank Adams were dismissed with prejudice, included in Appendix B to the March Report, while the Court recommended proceeding with his claims in the lead case, as listed in Appendix D. See Blackmon-Malloy, 2007 WL 841019, at *5. Additional claims filed by Brent Mills and Richard Webb were dismissed with prejudice for failure to exhaust administrative remedies; those claims were also included in Appendix B to the March Report. Id. at *12-13.
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successful completion of counseling requires personal attendance at a counseling session. Blackmon-Malloy, 338 F. Supp. 2d at 105-07.
The affidavits themselves do not provide dates of attendance at counseling and mediation sessions, and none of the documents attached to the affidavits indicate personal attendance at counseling and mediation. At most, the documents included with these Plaintiffs’ filings show the beginning and end of a counseling period, the beginning and end of a mediation period, and the notification of the end of both counseling and mediation. Even though Plaintiff Adams also includes Mediation Agreements executed October 20, 2004, and January 13, 2006, which suggests attendance at mediation on those dates, these two agreements do not indicate personal attendance at counseling prior to mediation as required. Therefore, this Court must recommend dismissal with prejudice of the claims of Plaintiffs Adams, Mills, and Webb as indicated in Appendix C to the March Report for failure to exhaust administrative remedies.
Plaintiffs Adams, Mills, and Webb also request “in the interest of justice” certain reconsiderations of the findings of Judge Sullivan in his order of September 30, 2004, regarding administrative exhaustion. See Adams Aff. at 1; Mills Aff.; Webb Aff. Specifically, these Plaintiffs ask “that the Court resolve the issue as to whether or not the Defendant, members of the U.S. Capitol Police Board, were required under the Congressional Accountability Act (as Plaintiff was) to personally attend mediation.” Adams Aff. at 1; Mills Aff.; Webb Aff. This Court has no authority whatsoever to reconsider Judge Sullivan’s opinion.
Finally, Plaintiff Adams also requests that twenty-four of his claims listed in Appendix B to the March Report for dismissal with prejudice proceed as related claims of
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hostile work environment under Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Again, the proper format of such a request is in a motion for reconsideration presented to Judge Sullivan. 2. Ave Maria Harris
Plaintiff Ave Maria Harris failed to support assertions of personal attendance at counseling in relation to her claims of retaliation and a hostile work environment, and as a result, this Court included her claims in Appendix C to the March Report.4 BlackmonMalloy, 2007 WL 841019, at *10. Her declaration filed in response to the Court’s Report confirms her failure to personally attend counseling. See Notice of Filing, Declaration of Ave Maria Harris (“Harris Decl.”). Plaintiff Harris explicitly states her “representative” fulfilled the Office of Compliance’s requirement for counseling. Id. at ¶ 4. Furthermore, it is her representative, Duvall Phelps, another plaintiff in this case, who “personally filed” her request for mediation, id. at ¶ 5, who “went to the Office in person and filed a formal request for counseling,” id. at ¶ 7, who “filed a request, in person at the Office, to reduce the counseling period,” id. at ¶ 8, and who “received the notice of the end of the counseling period” and who “filed a Request for Mediation,” id. at ¶ 10. Though she attended mediation in person for one of her complaints, id. at ¶ 15, nothing indicates Plaintiff Harris in any way complied with the administrative exhaustion as stated in Judge Sullivan’s order. Judge Sullivan explicitly stated that nothing in the language of the CAA “permits one person to fulfill the requirement of others.” Blackmon-Malloy, 338 F. Supp. 2d at 107. The claims of Ave Maria Harris indicated in Appendix C to the March Report are, therefore, recommended for dismissal with prejudice.
4 Another claim of Ave Maria Harris was recommended for dismissal with prejudice for failure to attend mediation in person. See Blackmon-Malloy, 2007 WL 841019, at *10.
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3. Larry Ikard Appendix C to the March Report included a pro se claim of Larry Ikard, now
deceased, relating to Civil Action 04-320, for which he was not a named plaintiff.5 Without documentation to support counsel’s previous submission of dates for Sergeant Ikard’s completion of administrative remedies for that claim, the Court included it in Appendix C to the March Report. Blackmon-Malloy, 2007 WL 841019, at *11. On his behalf, Richard Webb provided an affidavit claiming firsthand knowledge that Plaintiff Ikard “officially request[ed] and successfully proceed[ed] through the counseling process.” Plaintiff Larry Ikard’s Reply to This Court’s Report and Recommendation, Affidavit Statement of Richard Webb. Without describing dates of attendance at counseling and mediation sessions, this is a wholly inadequate showing of administrative exhaustion under the CAA. Similarly, none of the documents attached to the affidavit indicate Plaintiff Ikard’s personal attendance at counseling and mediation. At most, the documents included with Plaintiff Ikard’s filing show the beginning and end of a counseling period, the beginning and end of a mediation period, and the notification of the end of both counseling and mediation. The Court therefore recommends the dismissal of his claims with prejudice for failure to exhaust administrative remedies. 4. Derrick Macon
Plaintiff Derrick Macon indicated administrative exhaustion for his pro se claims without any supporting documentation, and therefore the Court included those claims in Appendix C to the March Report.6 Blackmon-Malloy, 2007 WL 841019, at *11. He
5 The Court also recommended dismissal of additional claims brought by Larry Ikard for his counsel’s representations that he did not attend counseling and mediation sessions in relation to those claims, and included those in Appendix B to the March Report. Blackmon-Malloy, 2007 WL 841019, at *10. 6 The Court recommended dismissal with prejudice for Derrick Macon’s claims arising out of events in
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provided the court with ample documentation of proceedings with the Office of Compliance, which allegedly include the “date the claimant attended counseling,” but, again, none of the documents indicate personal attendance at a counseling session. See Plaintiffs’ Reply to Order at 1. Pursuant to Judge Sullivan’s order, the Court must therefore recommend dismissal of Plaintiff Macon’s claims with prejudice for failure to exhaust administrative remedies. VII. CONCLUSION
This Court has permitted Plaintiffs to provide information necessary for the Court to find exhaustion of administrative remedies in compliance with Judge Sullivan’s order. Restating an assertion of exhaustion without supporting evidence—and, in at least one case, outright claiming exhaustion by a “representative”—despite the Court’s repeated rejection of vicarious exhaustion is not providing the information Judge Sullivan has required. There is no supporting documentation from the Plaintiffs included in Appendix C to the March Report to show personal attendance at counseling and mediation sessions as required under the CAA. Therefore, the Court recommends:
DISMISSING WITH PREJUDICE all claims included in Appendix C to the March Report. As a result, the only claims the Court recommends proceeding with in this action are those previously indicated in Appendix D to the March Report.
Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn, 474 U.S. 140 (1985).
November 2000, for which Plaintiff Macon acknowledged he did not personally attend counseling due to instruction that his attendance was not necessary. Blackmon-Malloy, 2007 WL 841019, at *11.
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Dated: May 15, 2007

_____/s/_____________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE

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 Case 1:01-cv-02221-EGS -JMF Document 278 Filed 05/10/10 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHARON BLACKMON-MALLOY, et al., Plaintiffs,
v. UNITED STATES CAPITOL POLICE
BOARD, Defendant.

) ) ) ) ) Case No. 1:01CV02221(EGS) ) ) ) ) ) )

JOINT FOURTH AMENDED CLASS ACTION COMPLAINT1

1. By and through undersigned counsel, Plaintiffs Sharon

Blackmon-Malloy, et al., hereby file this Joint Fourth Amended

Class Action Complaint which addresses a pattern and practice

of race discrimination, hostile work environment, and

retaliation in employment, in violation of the Congressional

Accountability Act, 2 U.S.C. § 1311, Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, and the

Civil Rights Act of 1991, 42 U.S.C. § 1981a.

Jurisdiction and Venue

2. This Court has jurisdiction over this Complaint

because questions of federal law are presented, pursuant to 2

U.S.C. § 1408 and 42 U.S.C. § 2000e, as amended.

1This Amended Complaint was required by the U.S. District Court’s Order dated March 8, 2010. It follows previous Court rulings published at 575 F.3d 699 (D.C. Cir. 2009) and 328 F. Supp. 2d 97 (D.D.C. 2004).

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3. This Court is the proper venue pursuant to 2 U.S.C. § 1408 and 42 U.S.C. § 2000e.
Parties 4. Plaintiffs are all African American Officers who experienced race discrimination and retaliation in their employment with the U.S. Capitol Police and also filed timely requests for counseling and received end of mediation notices in this case or the companion cases which have been consolidated with it.2 5. The Defendant is the United States Capitol Police Board, 119 D Street, N.E., Washington, DC 20510. Defendant is being sued because of its systemic, racially discriminatory practices and actions which Defendant’s officials have taken against Plaintiffs for many years in a severe and/or pervasive manner and have refused to correct. Defendant was timely served with the original Complaint on or about October 29, 2001.
FACTS 6. The Plaintiff African American Officers employed by the U.S. Capitol Police have been subjected to: (1) a racially hostile work environment; and/or (2) race discrimination in
2Plaintiffs also include Officer Thomas Spavone, an Hispanic Officer who associates with the Black Officers.
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promotions, other selections, work assignments, discipline, and termination; and/or (3) retaliation. There Plaintiffs requested counseling and received End of Mediation Notices from the Congress’s Office of Compliance as a result of these discriminatory experiences.
7. The U.S. Capitol Police have subjected the Plaintiffs to a systemic pattern and practice of hostile environment, racial harassment, non-promotion, discriminatory discipline, and retaliation for protected EEO activity and opposition to discriminatory practices from the early 1960's through the date of filing of the original Complaint (October 29, 2001), and indeed, continuing to the present day.
8. Because of their race (African American), the Black Officers of the U.S. Capitol Police identified in this Complaint have experienced some or all of the discrimination described in this case, on an ongoing basis. Each of them has been subjected to unwelcome racial harassment and a hostile work environment in the form of racist actions and practices, racist statements and racial epithets – such as “nigger”, “black bitch”, “gangster”, and “ghetto police” – and/or obvious mistreatment by certain white Officers, including but not limited to abuse, yelling, threats, denial of normal privileges, and posting of
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Black Officer pictures on promotion examination files, thus identifying them for disparate treatment.
9. This systemic unwelcome racial harassment created a climate of fear among the Black Officers of the U.S. Capitol Police, such that even those who were not the direct target of the white Officers’ racist words and actions were affected and intimidated by the hostile work environment. This climate of fear persists to the present day.
10. The treatment of the Black Officers of the U.S. Capitol Police has been sufficiently severe and/or pervasive to alter a term, condition, or privilege of employment of a reasonable Officer.
11. Indeed, the workplace of the U.S. Capitol Police has been permeated with discriminatory intimidation, insult, and ridicule for decades, continuing through and beyond the Black Officers’ filing of formal requests for counseling in April and May, 2001.
12. The conduct of certain white Officers toward Black Officers unreasonably interfered with the Black Officers’ work performance because it was frequent, severe, humiliating, intimidating, and on occasion physically threatening.
13. In fact, the systemic harassment and hostile work
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environment did alter the terms, conditions, and privileges of the Black Officers of the U.S. Capitol Police so that they were forced, inequitably, to endure physically more demanding conditions and greater psychological stress and intimidation on the job.
14. The ongoing frequent, severe, systemic harassment to which the Black Officers have been unremittingly subjected for years, if not decades, constitutes a single employment practice.
15. The U.S. Capitol Police knew or should have known of the racial harassment and hostile work environment and failed to take proper remedial action.
16. From April to May 2001, the Plaintiffs in this case timely requested counseling from the Congress’s Office of Compliance, initiating their discrimination claims, in response to discriminatory incidents they had experienced in the 180 days prior to seeking counseling.
17. For many years, Black Officers of the U.S. Capitol Police have been subjected to racist slurs, insults, and threats, a practice that has continued through the filing of the original Complaint in this case and afterward.
18. Among the many egregious examples of racist insults and threats were those experienced by Plaintiff Larry “Ike”
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Ikard (now deceased). Officer Ikard was subjected to a racially hostile work environment in which white Officers referred to African Americans, whether fellow Officers or members of the public, as “Huks” or “gangsters,” and characterized the D.C. Metropolitan Police Department as the “ghetto police.”
19. When Officer Ikard worked in the K-9 Unit, a division well-known for its racism, the department procured a blackcolored German shepherd dog named “Ike,” and the white Officers of the K-9 unit would shout “Ike” at it and yell at it, to demean and humiliate Officer Ikard. An official of the K-9 Unit also announced at roll call that the Unit had another blackcolored dog named “Huk.” (The department backed down and changed that dog’s name in response to outrage from Black Officers.)
20. Officer Ikard observed that white Officers who had friendly conversations with African Americans were labeled as a “Huk Lovers,” “Friends of Gangsters” or a simply “FOGs.” Many other Black Officers are aware of this practice.
21. In late 2000 and early 2001, Plaintiff Richard Webb continued to pursue an assignment to the K-9 Unit despite reports that the word “nigger” was used freely there. Management was aware of this practice but took no action to
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address it. Officer Webb was denied a position with the K-9 Corps in favor of a less qualified white applicant.
22. On April 9, 2001, white Officer Patrick Millham called Recruit Officer Alana Lambert a “black bitch” in the presence of fellow Recruit Officer Anthony Stone. Officer Lambert described the incident to Officer Thurston Lewis, who wrote it up on April 13, 2001. No action was taken against Officer Millham.
23. During the 180 days before the Black Officers filed their requests for counseling with the Office of Compliance, white Officers repeatedly subjected multiple Black Officers to racist epithets, including “nigger” and variations such as “Huk” or “gangster.” These racial slurs were used even when other Black Officers were present, and word of the fact that white Officers could use racist language toward Black Officers with impunity spread throughout the ranks.
24. One of the most dramatic instances was General Counsel John Caulfield’s use of the word “nigger” toward a Virginia cab driver when Caulfield was detained in early February 2000. The slur from Caulfield, who had responsibility for giving advice on discipline and promotions in the department, was particularly chilling because it indicated that Black Officers would not
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receive fair treatment. After Caulfield returned to work without incident, the Black Officers launched a series of public protests (the last of which occurred in November 2000) that ultimately led to the filing of the instant lawsuit.
25. In sum, “nigger”, “Huk”, “gangster” and other racist epithets were commonly employed by the white Officers of the U.S. Capitol Police, creating a clearly race-based hostile work environment for Officer Ikard, Officer Webb, Officer Lambert and other Black Officers whose work environments were affected, who are identified in Exhibit 1. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
26. The systemic intimidation and hostility toward Black Officers was perpetuated not only by racist words but by overtly racist actions toward Black Officers, such as a hangman’s noose, a swastika, death threats, unprovoked traffic stops of Black Officers by white Officers, and “bear hunting” (false writeups). The impact of such overtly racist actions exceeded their immediate targets, and cast a pall of fear and intimidation over
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other Black Officers who were aware of what had occurred. Officers who experienced such actions in the 180 days before filing their requests for counseling are identified in Exhibit 2. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
27. Even when Black Officers of the U.S. Capitol Police were not being subjected to direct and overt racist statements or actions, they were frequently the target of abuse, yelling, threats, denial of normal privileges, and having their pictures posted on promotion examination files, thus identifying them for disparate treatment.
28. One glaring example was the command’s undermining Lt. Donald Dixon when he attempted to conduct a disciplinary investigation of a white Officer; not only was the investigation thwarted, but Lt. Dixon ultimately was forced to accept a reassignment. Lt. Dixon and other Black Officers who experienced one or more such racist actions or practices during the 180 days prior to their request for counseling are identified in Exhibit
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3. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
29. Sergeant Vernier Riggs was subjected to ongoing discrimination with respect to leave from April 1999 through October 2000 when Lieutenant Michael Komara repeatedly harassed her and denied her leave requests. During this time, he routinely granted leave requests from white Sergeant Cathy Anderson, whom he did not subject to harassment.
30. Lieutenant Frank Adams was subjected to the racially hostile work environment on the U.S. Capitol Police force. While assigned to the Patrol Division, white management officials allowed, encouraged, and participated with white Officers in hostilities towards Plaintiff Adams in an effort to force him to request an assignment to another division. He was subsequently involuntarily transferred. Management ordered Lt. Adams to change the performance rating of an undisciplined, disruptive K-9 Officer and to remove instructive entries regarding the negative performance of other white Officers from
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their Unit personnel records. 31. Lt. Adams was subjected to many unsubstantiated and
frivolous investigations by the Internal Affairs Division, and management refused to investigate his charges against white subordinate Officers who made untruthful and unsupported allegations against him. The U.S. Capitol Police published throughout the department the inaccurate findings from an investigation of a complaint that a white Officer made against Lt. Adams.
32. Lt. Adams’ primary discrimination facts and claims are set forth in four U.S. District Court cases against the U.S. Capitol Police, which have the following case numbers: 01-2221 (filed October 29, 2001), 04-0943 (filed June 9, 2004), 05-0491 (filed March 10, 2005), and 06-0653 (filed April 10, 2006). Lt. Adams’ aforesaid facts and claims are incorporated into this Complaint and made a part hereof.
33. Plaintiff Derrick Macon was also subjected to the racially hostile work environment on the U.S. Capitol Police force as described above. Officer Macon was also denied a request for training while similarly-situated, less qualified white Officers were afforded training. His request for an explanation to his immediate supervisor was disregarded.
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Subsequently, Plaintiff Macon was selected to attend a pickpocket training class, and he asked management to notify him of the upcoming scheduled classes. A week later, Plaintiff Macon was informed by a junior white Officer that he had completed that training. When Plaintiff Macon inquired about upcoming classes, he was told that there were no future classes scheduled. Thereafter, Defendant denied Plaintiff Macon’s request for sick leave in retaliation for his participation in this case.
34. Plaintiff Earl Allen was subjected to the racially hostile work environment on the U.S. Capitol Police force as described above. Assigned to the Speaker’s detail for five years, Officer Allen himself was often protected by Speaker Newt Gingrich from the department’s discriminatory practices. After Mr. Gingrich resigned from Congress, Officer Allen was assigned to the lowly task of being in charge of counting supplies. Officer Allen verbally requested reassignment to the new Speaker’s detail, but this was refused. As a result of the department’s refusal to reassign him, Officer Allen reluctantly retired in October 2000 at the age of 53. He had planned to retire four years later at the mandatory age of 57.
35. By subjecting some Black Officers to discriminatory
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disparate treatment, white Officers were able to intimidate many more Black Officers with the threat of similar hostile treatment. Black Officers who witnessed their fellow Black Officers being subjected to abuse, yelling, threats, and denial of normal privileges are identified in Exhibit 4. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
Discrimination in Assignments/Hostile Work Environment 36. Between 1960 and 2001 and on a continuing basis, the
white Officers of the U.S. Capitol Police would consistently and deliberately deprive Black Officers of more desirable assignments and intimidate, humiliate, and harass Black Officers by giving them undesirable assignments in order to perpetuate the hostile work environment and the racist hierarchy in the U.S. Capitol Police. Black Officers were routinely relegated to the least desirable positions.
37. Plaintiff Dale Veal, an African American, was discriminated against on the basis of his race when he was denied overtime assignments. Officer Veal has been with the
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U.S. Capitol Police since 1988. During 1999 and 2000, Officer Veal was on the House division list for overtime. The list is alphabetical, and the white official, Sgt. Barbara Davis, responsible for making overtime assignments was to go down the alphabetical list of Officers and assign overtime. However, this official did not go down the complete list so as a result, white Officers, such as Officer Belinda Keen, received numerous overtime assignments while Officer Veal did not.
38. Black Officers who suffered disparate treatment in assignments based on their race (African American) are identified in Exhibit 5. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
Additional Hostile Work Environment Claims 39. In addition to the foregoing, Black Officers who were also exposed to the hostile work environment and made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and
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timely filed in U.S. District Court within 90 days thereafter are identified in Exhibit 6.
Other Plaintiffs in the Hostile Work Environment 40. Plaintiffs Jerry Dickson (deceased), Derek Hamilton, Linval Jones, Alana Lambert, Darius Rose, Wendell Summers, Kado Wilks (deceased) and non-Plaintiff Masood S. Darsanni were subjected to the racially hostile work environment of the U.S. Capitol Police force as described above. Though these Plaintiffs do not have Office of Compliance numbers, they attempted to file requests for counseling in April-May 2001. Plaintiffs Jones, Lambert, and Rose had their discrimination complaint information submitted to the Office of Compliance through counsel, as did non-Plaintiff Darsanni. Plaintiffs Hamilton and Summers personally went to the Office of Compliance to submit their information.
A Long History of Racial Harassment 41. The history of racial harassment and a hostile work environment at the U.S. Capitol extends back decades, at least until the mid-1960's, when it was at its most direct and brutal. Many of the incidents of harassment over the years that led up to the filing of this lawsuit are recounted in Plaintiffs’ Joint Second Amended Complaint. The history of harassment – severe,
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pervasive, and continuous over the years – led up to the original Complaint in this action. To this day Black Officers suffer harassment and are afraid to speak up out of fear of retaliation. Plaintiffs seek to recover for the ongoing hostile work environment over the years preceding filing of the requests for counseling in this case.
Ongoing Harassment 42. The racially hostile work environment did not abate after the filing of the Blackmon-Malloy class action. The consolidated cases now in this action demonstrate this. In addition, in 2002, Plaintiff Clifford Green reported to Plaintiff Donald Dixon that Officer Green had found a note on his protective vest outside his locker that stated: “For the love of God wash me NIGGER.” The department’s Internal Affairs investigated, but failed to find the offender(s).
Denial of Promotions and Other Discrete Acts 43. Numerous Black Officers were denied promotions. By the time of the 2000 promotion process, the department had a long history of discriminating against African Americans in promotions, a fact evident in the lopsided imbalance between the proportion of African Americans among the rank and file and the proportion of African Americans in the command structure.
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44. As of February 2001, 67% of the sworn Officers on the U.S. Capitol Police force were white (817 out of a total of 1,221 Officers), while 29% (357) were African American.3 As of February 2001, the upper ranks of the U.S. Capitol Police force comprised 240 sworn Officers - in descending order from the rank of Chief to Inspector to Captain to Lieutenant to Sergeant to Detective. Of these 240 high-ranking Officers, 84% (201) were white, while 13% (32) were African American.
45. A significant number of qualified Black Officers took part in the biased year 2000 promotion process and failed to receive promotions that were given to less qualified white Officers. They requested counseling within 180 days of their non-promotion.
46. In addition to subjecting Black Officers to disparate treatment in promotions, the U.S. Capitol Police Board maintained a facially neutral oral interview and experiential process whose subjective criteria resulted in a disparate impact against the Black Officers.
47. Lead Plaintiff Sharon Blackmon-Malloy,4 an African
3Note that over 300 Black Officers filed the original suit – well over 75 percent of the Black Officers.
4Sgt. Blackmon-Malloy was eventually promoted to Lieutenant on November 8, 2004, more than three years after filing this
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American woman and President of the U.S. Capitol Black Police Association, has been discriminated against on the basis of her race by being denied promotions and promotional opportunities and unfairly written up. Lt. Blackmon-Malloy was employed with the U.S. Capitol Police from October 12, 1982, until she retired early on October 31, 2007. She has taken part in promotional examinations a number of times. She was finally promoted to Sergeant on July 12, 1993. Thereafter, then-Sgt. BlackmonMalloy took part in three examinations for promotion to Lieutenant. In the examination administered on November 4, 2000, then-Sgt. Blackmon-Malloy received an on-site score of 75, which would have moved her into the next phase of the Lieutenant’s examination. However, when the applicants’ scores were posted, her score was recorded as a 69, which impacted her overall score and resulted in her not being promoted. Sgt. Blackmon-Malloy questioned this discrepancy by speaking with Inspector Stephen Ring and Chief James Varey, two white officials, and by lodging numerous complaints of race discrimination regarding the change in her score.
48. Plaintiff Blackmon-Malloy was later informed that there was an error in the calculation of her on-site score.
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Plaintiff Blackmon-Malloy submits that the limited number of African American Sergeants and Lieutenants in the department is the direct result of racially discriminatory practices, including the lowering of her examination score in 2000.
49. Plaintiff Donald Dickson reports that Robert Howe, the number two official on the U.S. Capitol Police department, informed a group of managers at a class Dickson attended that he wanted to control the Officers who were promoted, so some Officers applying for promotions would always miss the required score by a few points. Howe’s comments laid bare the discriminatory policy and racist agenda of the department in promotions.
50. Further reflecting Howe’s comments and the department’s agenda, as of 2002, no Black Officer on the U.S. Capitol Police was in the department’s developmental pool for high-ranking Officers.
51. Officer Richard Webb requested counseling on May 1, 2001, after he was not included among the recruits on the K-9 mini-list announced on April 18, 2001, which instead included less experienced white recruits.
52. Officer Barry Nixon was able to pass the written examination six or seven times, but he was never able to pass
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the department’s subjective oral examination. 53. Black Officers who took the year 2000 Sergeant’s
examination and were unfairly denied promotions are identified in Exhibit 7. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
54. Black Officers took the year 2000 Lieutenant’s promotion exam and were unfairly denied promotions are identified in Exhibit 8. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
55. Sandra Brown and Governor Latson were among the Plaintiffs discriminated against in the 2002 promotional process. See Kendrick Young v. U.S. Capitol Police Board, Case No. 04-0320 (EGS)(D.D.C.).
56. Officer Leonard Ross took the promotion exam multiple
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times. He consistently succeeded on the written exam, and was just as consistently downgraded on the oral examination by white managers. As a result, he never received a promotion.
57. The long and well-known history of discrimination in the department’s promotion process, coupled with racist statements by former Chief Gary Abrecht alleging that “Blacks can’t compete” or that Blacks can’t take tests, augmented the already hostile environment at the U.S. Capitol Police and effectively discouraged Black Officers from participating in a process that was obviously discriminatory. Such statements affected the terms and conditions of each Black Officer’s employment by denying them opportunities that were granted to white Officers. Black Officers who would otherwise have participated in the promotion process but concluded that participation was futile based on the racist history of the promotion process are identified in Exhibit 9. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
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Discriminatory Discipline 58. Black Officers also faced discrimination throughout the investigation of alleged offenses and the imposition of discipline. Furthermore, the discipline was typically more severe for Black Officers than that which white Officers received for comparable offenses. 59. Luther Peterson, an African American Officer, was discriminated against on the basis of his race when he was unfairly disciplined. Officer Peterson had been with the U.S. Capitol Police since October 10, 1978. Officer Peterson received a CP-535 disciplinary action for improper use of his weapon for shooting at an intruder while off duty in his home. Officer Peterson was home alone on September 5, 2000 (his wife and children were out of town) when his burglar alarm sounded and he witnessed someone in his doorway. Officer Peterson fired his service revolver at the intruder. The Maryland police were called, and no charges were filed against Officer Peterson. 60. In October 2000, Officer Peterson received notice of an Internal Affairs investigation and in November received notice that the investigation was concluded. Officer Peterson, along with his union representative, met with white Inspector Jarboe who informed him that he was being disciplined for not
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having his weapon fully loaded, although the department does not require that a weapon be fully loaded. Nonetheless, Officer Peterson grieved the discipline, and it was subsequently dismissed.
61. In January 2001, Defendant’s Associate General Counsel Kenneth Benjamin called Officer Peterson into a meeting about the shooting that occurred in his home. Officer Peterson was informed he could either accept the CP-535 discipline and be docked 64 hours or he could contest the charges and the penalty. Officer Peterson chose to contest the charges. The day before his hearing, Officer Peterson was called in to see white Sergeant Stillman, who informed him that he was receiving a CP550 performance note for not responding to calls from Inspector Thompson about his case. Officer Peterson explained that he was represented by a union representative. Officer Peterson received a CP-535 discipline for discharging his weapon and was docked 64 hours.
62. In contrast, white Officer Edward Bailor shot at an individual without provocation, and no disciplinary action was taken against him by the department.
63. Black Officer Leonard Ross brought a Complaint in U.S. District Court, Ross v. U.S. Capitol Police Board, 1:02-cv-2481
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(consolidated with the main case here on July 27, 2005), for retaliation and race discrimination due to the U.S. Capitol Police’s unequal discipline and non-promotion of Mr. Ross. Officer Ross was subjected to unequal, discriminatory discipline when he was formally disciplined for reporting that a white Officer had illegally brandished a firearm, while another white Officer was not disciplined for making a similar disclosure about the same Officer.
64. Officer Duvall Phelps, an African American Officer, was discriminated against on the basis of his race when he was constructively discharged and forced into early retirement. Officer Phelps joined the U.S. Capitol Police on October 6, 1975, and 25 years later was forced into early retirement on October 31, 2000. After years of discrimination in assignments and working conditions, and a racially hostile work environment, Officer Phelps filed charges with Internal Affairs against a number of white Officers, including Lieutenants Michael Komara and William Kaval, Sergeants David Miller, Dennis Kitchen, William Perkins, Harold Fitzgerald and Christopher Givens, and Officers Richard Brown and Susan Galifaro. While his complaint was pending with Internal Affairs, Officer Phelps was accused of domestic assault by Internal Affairs, and later in Prince
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George’s County, and placed on suspension by the department pending the outcome of the case and the outcome of an Internal Affairs investigation. Chief Gary Abrecht (white) ordered Officer Phelps to take a polygraph test regarding the alleged assault. However, Officer Phelps’ physician, who was treating him for job-related stress, opined that the stress could affect the outcome of the test and recommended that he not take the test. Based on his physician’s recommendation, he did not take the polygraph.
65. Because of the alleged assault, the department began processing Officer Phelps for termination. Faced with options of early retirement or termination, Officer Phelps chose early retirement. While Officer Phelps faced termination for this alleged incident, white Officers faced with similar and/or more serious allegations were allowed to remain on the job.
66. For example, a white Officer, Keith Pickett, also accused of domestic violence, was suspended for two weeks and allowed to remain on the job. Another white Officer, John Kurtz, accused of stalking an ex-girlfriend, was suspended and docked 64 hours of leave but remained on the job. A white Officer, Marshall Glenn Hoffman, alleged to have held his family hostage at gunpoint, was placed on light duty for two years and
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remained on the job. A white Officer who allegedly called in a bomb threat to the U.S. Capitol, Gerald Scott Pfister, was taken off duty, and then returned to light duty and reinstated. Officer Phelps and other Plaintiffs contend that African American Officers received harsher discipline and were disciplined at higher rates than their white counterparts.
67. Plaintiff Frank Adams was also subjected to retaliation from upper management for filing complaints of discrimination. His supervisor, Captain Preloh, reprimanded him for following direct orders from a higher-ranking Lieutenant. Captain Preloh disregarded the performance rating issued to Lt. Adams by his commanding supervisor, which impeded his opportunity for promotion. In addition, Captain Preloh and Inspector Parisi participated in and supported the making of false accusations against Lt. Adams, which in turn led to an investigation by Internal Affairs. Ultimately, Chief Varey himself authorized that corrective documentation be placed in Lt. Adams’ personnel file and published in official department correspondence, regarding the findings of this flawed investigation. These actions not only hindered Lt. Adams’ ability to advance in his career, but they substantially damaged his reputation, well-being, and ability to perform his duties
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effectively. 68. Black Officers who were more severely disciplined than
white Officers within the 180 days before filing their requests for counseling are identified in Exhibit 10. All the Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
Retaliation 69. In response to protests and demonstrations by the Black Officers in reaction to the Caulfield scandal, their mass filing of requests for counseling, the initiation of the BlackmonMalloy lawsuit by three fourths of the Black Officers, and other protected EEO activity, many Black Officers also suffered unlawful retaliation in the 180 days before and after the filing of the main Blackmon-Malloy case or, in some cases, its subsequent consolidated companion cases, including but not limited to: Regina Bolden-Whitaker, et al. v. U.S. Capitol Police Board, Case No. 03-2644 (EGS), Kendrick Young v. U.S. Capitol Police Board, 04-0320, and Sharon Blackmon-Malloy v. U.S. Capitol Police Board, Case No. 02-1859, Ross v. U.S.
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Capitol Police Board, Case No. 02-2481 (EGS), and multiple cases by Plaintiff Arnold Fields.
70. Plaintiff Blackmon-Malloy’s verbal and written complaints of discrimination against the department were the cause of unwarranted performance notes in her personnel jacket. Then-Sgt. Blackmon-Malloy received a CP-550 performance note entry in March 2001 for an incident that occurred in September 2000. Prior to her complaints about the 2000 promotion exam, no action was taken regarding this incident; Chief Howe dismissed the matter in January 2001. Sgt. Blackmon-Malloy also received five CP-550 performance note entries for an incident occurring on February 23, 2001, involving the incorrect placement of Notices of Infractions. Sgt. Blackmon-Malloy submits that this was such a minor infraction that there should not have been any entries in her personnel jacket. Prior to these entries, Sgt. Blackmon-Malloy had an unblemished record, with a spotless personnel jacket. As a result of disagreeing with the five CP550 performance notes, Sgt. Blackmon-Malloy received a CP-534 command discipline report. Sgt. Blackmon-Malloy unsuccessfully appealed the CP-534 command disciplinary report. Sgt. BlackmonMalloy timely exhausted her administrative remedies, completing counseling and mediation with the Office of Compliance.
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71. The day after Sergeant Vernier Riggs filed a request for counseling with the Office of Compliance on April 12, 2001, Lieutenant Proctor admonished her for not wearing a blue, longsleeved shirt to roll call. He did not admonish either Sergeant Neiman or Sergeant Stillman, both white and neither of whom wore a blue long-sleeve shirt to roll call. Three days later, on April 16, 2001, white Officer Donna Boswell was in flagrant violation of the uniform requirements when she wore a cardigan over her uniform. In addition, Officer Boswell did not wear a blue, long-sleeve shirt when she was required to do so. Officer Boswell was neither admonished or disciplined for her violations of the uniform requirements. Officer Riggs timely requested counseling from the Office of Compliance on this instance of retaliation.
72. On December 24, 2003, Regina Bolden-Whitaker, Ave Maria Harris, Arnold Fields, and Duvall Phelps filed an additional timely Class Complaint of retaliation, which was subsequently consolidated with this case and whose allegations are incorporated by reference. See Bolden-Whitaker v. U.S. Capitol Police Board, Case No. 03-2644 (EGS) (D.D.C.).
73. Officers who made timely requests for counseling in response to retaliation are identified in Exhibit 11. All the
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Plaintiffs in this category, among others, made timely requests for counseling (or charges of discrimination) to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in U.S. District Court within 90 days thereafter.
Class Allegations 74. This action is properly maintainable as a class action under Rule 23(a) of the Federal Rules of Civil Procedure. 75. The members of the proposed class are sufficiently numerous to make joinder impracticable. 76. Plaintiffs’ claims raise questions of law or fact common to the class. These common questions include, but are not limited to:
a. Whether Defendant subjected the Plaintiffs to a hostile work environment based on their race (African American).
b. Whether Defendant discriminated against certain of the Plaintiffs in promotions and promotional opportunities based on their race (African American).
c. Whether Defendant discriminated against certain of the Plaintiffs in discipline and terminations
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based on their race (African American). d. Whether Defendant retaliated against Plaintiffs
because of their protected activity in filing discrimination complaints and opposing discrimination. 77. The claims of the Plaintiff Class Agents and named class members are typical of those advanced by the class. 78. The named Plaintiffs and counsel will properly represent the interests of the class and its members. 79. The class action is also properly maintainable pursuant to Fed.R.Civ.P.23(b)(2) and (b)(3) because Defendant has acted on grounds generally applicable to the class, making appropriate final injunctive relief or declaratory relief with respect to the entire class and the questions of law and fact common to members of the class predominate over questions affecting individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy. Additional Allegations of Discrimination 80. All allegations of fact in Plaintiffs’ Joint Second Amended Complaint dated January 29, 2003 (see pages 2-47), which are not specifically set forth in this Complaint and which are
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not inconsistent with this Complaint, are hereby incorporated by reference and made a part of this Complaint.
Status of Other Plaintiffs 81. The Plaintiffs listed in category b.1 to the Parties’ Joint Response to the Court’s March 8, 2010 Order indicated to Class Counsel that they wished to withdraw from this case. 82. The Plaintiffs listed in Category b to the Parties’ Joint Response to the Court’s March 8, 2010 Order wished to pursue their cases but were determined by Class Counsel to be untimely or otherwise not to have fulfilled the requirements for proceeding in this case. Counsel nevertheless requests that before dismissing any of these Plaintiffs (in ¶¶ 76-77) the Court issue each of them an Order to Show Cause Why They Should Not Be Dismissed.
Causes of Action Count I
83. The U.S. Capitol Police have subjected the Plaintiffs to a discriminatory hostile work environment based on their race (African American) in violation of the Congressional Accountability Act, 2 U.S.C. § 1311, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., which it applies.
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Count II 84. The U.S. Capitol Police have discriminated against certain of the Plaintiffs based on their race (African American) in promotions, discipline, and terminations in violation of the Congressional Accountability Act, 2 U.S.C. § 1311, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., which it applies.
Count III 85. The U.S. Capitol Police have maintained a promotion system leading to ranking positions which has an unlawful disparate impact on Plaintiffs based on their race (African American) in violation of the Congressional Accountability Act, 2 U.S.C. § 1311, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., which it applies.
Count IV 86. The U.S. Capitol Police have unlawfully retaliated against Plaintiffs because Plaintiffs have engaged in activity protected by the Congressional Accountability in violation of the Congressional Accountability Act, 2 U.S.C. § 1311, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., which it applies.
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Relief Requested 87. WHEREFORE, Plaintiffs respectfully request this Court to: a. Declare that the practices described in this Complaint exist at the U.S. Capitol Police and that they are unlawful; b. Issue a permanent injunction prohibiting the U.S. Capitol Police, its officers, agents, employees, and successors, from engaging in the discriminatory employment practices alleged herein; c. Issue a permanent mandatory injunction requiring that the U.S. Capitol Police adopt employment practices in conformity with the requirements of the Congressional Account-ability Act, 2 U.S.C. § 1311, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Specifically, the Court should require new Court-approved and Court-monitored systems for a cessation of the hostile work environment against the Black Officers and for promotions, other selections, work assignments, performance evaluations, discipline, and termination that are race neutral and that provide for equal treatment and opportunities regardless of the Officer’s race at the U.S. Capitol Police, and creation of an ombudsman’s position; d. Award back pay and front pay and other job benefits
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sufficient to make aggrieved Plaintiffs whole; e. Award compensatory damages to aggrieved Plaintiffs
appropriate to the proof at trial; f. Award reasonable attorney fees and costs, including
expert fees, pursuant to 2 U.S.C. § 1311, 42 U.S.C. § 2000e, and 42 U.S.C. § 1988; and
g. Order such other and further relief as the Court deems just and proper.
Jury Demand 88. Plaintiffs request a trial by jury on all issues triable before a jury.
/s/Charles W. Day, Jr. CHARLES W. DAY, JR. (D.C. Bar No. 459820) DONNA WILLIAMS RUCKER (D.C. Bar No. 446713) VALENCIA R. RAINEY (D.C. Bar No. 435254) LENORE C. GARON (D.C. Bar No. 172205) DANIEL K. GEBHARDT (D.C. Bar No. 975703) GEBHARDT & ASSOCIATES, LLP 1101 17th Street, N.W., Suite 807 Washington, DC 20036-4716 (202) 496-0400
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May 10, 2010

/s/Nathaniel D. Johnson NATHANIEL D. JOHNSON MD Federal Bar No. 14729 3195 Old Washington Road Waldorf, MD 20602 (301) 645-9103
Class Counsel for Plaintiffs

36

 
 Case 1:01-cv-02221-EGS Document 92 Filed 09/30/04 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________

)

SHARON BLACKMON-MALLOY, et al., )

)

Plaintiffs,

)

)

v.

)

)

UNITED STATE CAPITOL POLICE

)

BOARD,

)

)

Defendant.

)

________________________________)

Civil Action No. 01-2221 (EGS)

MEMORANDUM OPINION & ORDER

I. Introduction

Plaintiffs Sharon Blackmon-Malloy, Dale Veal, Vernier Riggs,

Luther Peterson, Duvall Phelps, Larry Ikard, and Frank Adams

bring a class complaint on behalf of themselves and all current

or retired African American United States Capitol Police

Officers. Plaintiffs allege that Defendant has engaged in a

pattern and practice of race discrimination in employment.

Defendant is the United States Capitol Police Board.

Pending before this Court and ripe for its review is

defendant’s Motion to Dismiss plaintiffs’ Joint Second Amended

Class Action Complaint. Plaintiffs have also moved for class

certification. By Order of March 8, 2004, this Court suspended

briefing of the Motion for Class Certification until the Motion

to Dismiss was resolved.

Case 1:01-cv-02221-EGS Document 92 Filed 09/30/04 Page 2 of 37
II. Background Filed under the Congressional Accountability Act1 (“CAA” or
“Act”), this putative class action alleges that the United States Capitol Police Board (“USCP”) discriminated against its African American Officers. See 2 U.S.C. §§ 1301-1438. Plaintiffs seek compensatory damages and injunctive relief on behalf of all African American officers employed at any point in time from November 4, 1998, to the present.
Count I of the Second Amended Complaint alleges disparate treatment based on race (a) in personnel decisions such as promotions, other selections, work assignments, discipline, and termination; (b) by creation of a hostile work environment; and (c) through harassment and retaliation against African American officers who oppose discrimination. Count II alleges the USCP has maintained a system of promotions, other selections, work assignments, discipline, and termination that has had a disparate impact on African American employees. Count III alleges that plaintiffs Mary Jane Rhone, a civilian USCP employee, and Thomas
1 Plaintiffs’ Complaint notes that it is also filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. However, prior to the Congressional Accountability Act, these laws were not applicable to legislative branch employees. 42 U.S.C. § 1302. Thus, the Court will construe these statutes as incorporated by the Congressional Accountability Act. 42 U.S.C. § 1301 et. seq.
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Spavone, a Hispanic Officer, have been subjected to a hostile work environment based on their known associations with African American officers.
Because Title VII of the Civil Rights Act of 1964, as written, does not extend to legislative branch employees, the Congressional Accountability Act provides the exclusive procedure by which current or former legislative branch employees can bring a suit challenging employment discrimination. See 42 U.S.C. § 2000e-16(a). Effective January 23, 1996, the CAA extends the rights and protections of eleven previously existing federal laws covering various labor, civil rights, and workplace matters to employees in the legislative branch. See 2 U.S.C. §§ 1302, 1311.
Section 408(a) of the CAA provides: (a) Jurisdiction The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation. In addition, section 402 provides that such counseling must be requested and completed within a specific time period: To commence a proceeding, a covered employee alleging a violation of a law made applicable under part A of subchapter II of this chapter shall request counseling
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by the Office [of Compliance]. The Office shall provide the employee with all relevant information with respect to the rights of the employee. A request for counseling shall be made not later than 180 days after the date of the alleged violation. Section 403 requires an employee to file a request for mediation within 15 days of receipt of notice of the end of the counseling period. 2 U.S.C. § 1403(a).
II. Standard of Review Defendant moves to dismiss plaintiffs’ Second Amended
Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6).
1. Rule 12(b)(1) “Because subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Uberoi v. EEOC, 180 F. Supp. 2d 42, 44 (D.D.C. 2001). Accordingly, “the plaintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Id. The D.C. Circuit instructs that when a motion to
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dismiss “present[s] a dispute over the factual basis of the court’s subject matter jurisdiction,” the Court:
may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant. Instead the court must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss. Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). When a plaintiff fails to follow administrative requirements prior to filing suit, dismissal under Rule 12(b)(1) is appropriate. See. e.g. Martin v. EPA, 271 F. Supp. 2d 38, 42-47 (D.D.C. 2003).
2. Rule 12(b)(6) When considering a Rule 12(b)(6) Motion to Dismiss, the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favorable to the plaintiff. See Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002). A Motion to Dismiss is granted and the complaint dismissed only if no relief could be granted on those facts. See Sparrow v. United Air Lines Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2002). A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion for failure to state a claim upon which relief may be granted when the facts giving rise
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to the defense are apparent on the face of the complaint. U.S. ex. rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 73 (D.D.C. 2003).
III. DISCUSSION A. Barriers to Litigation under the Congressional Accountability Act
1. Exhaustion of Administrative Remedies is a Jurisdictional Requirement to Filing Suit As stated previously, section 408(a) of the CAA provides: The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation. 2 U.S.C. § 1408(a). Section 402 states that “[a] request for counseling shall be made not later than 180 days after the date of the alleged violation.” 2 U.S.C. § 1402. Section 403 states that “[n]ot later than 15 days after receipt by the employee of notice of the end of the counseling period under section 1402 of this title, but prior to and as a condition of making an election under section 1404 of this title, the covered employee who alleged a violation of a law shall file a request for mediation with the Office [of Compliance].” 2 U.S.C. § 1403. Thus,
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defendant argues that this Court only has subject matter jurisdiction over an individual’s claim if that plaintiff has alleged that she completed counseling and mediation regarding the alleged violation within the time limits specified by sections 402 and 403 of the Act. See id.
On the other hand, plaintiffs argue that this Court should take its cues from the Title VII case law and apply less stringent requirements. The Supreme Court has held the Title VII’s timeliness requirements are “requirement[s] that, like a statute of limitations, [are] subject to waiver, estoppel and equitable tolling.” See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Plaintiffs note that in Thompson v. Capitol Police Board, the court took the rationale in Zipes and applied it to the CAA to find that the CAA’s timeliness requirements is not jurisdictional, but rather, like Title VII’s timeliness requirement, is subject to equitable tolling. 120 F. Supp. 2d 78, 83 (D.D.C. 2000).
However, this Court does not find the reasoning in Thompson persuasive. Although the Zipes Court was cross-referencing the jurisdictional provision to see if it mentioned timeliness and the timeliness provision to see if it mentioned jurisdiction, it appears that the Thompson court only examined the timeliness provision to see if it mentioned jurisdiction. Compare Zipes,
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455 U.S. at 393-94 (“The provision granting district courts
jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f)
does not limit jurisdiction to those cases in which there has
been a timely filing with the EEOC. It contains no reference to
the timely-filing requirement. The provision specifying the time
for filing charges with the EEOC appears as an entirely separate
provision, and it does not speak in jurisdictional terms or refer
in any way to the jurisdiction of the district courts.”) with
Thompson, 120 F. Supp. 2d at 83 (“Similarly, the CAA provision
that specifies a time for filing charges appears in a separate
section from the one covering jurisdiction, and does not make any
mention of jurisdiction.”) (emphasis added).
The jurisdictional provision of Title VII, which is silent
to timeliness, provides:
Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.
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42 U.S.C. § 2000e-5(f)(3). However, the jurisdictional provision of the CAA provides:
The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation. 2 U.S.C. § 1408(a)(emphasis added). In Gibson v. Office of the Architect of the Capitol, the district court found that a claim of discrimination had not been timely filed because the limitations period for requesting counseling began to run on the date plaintiff was informed of his non-selection and not the date plaintiff was able to observe the age of the successful candidate. Civ. Action No. 00-2424 (CKK), slip op. at 7-10 (D.D.C. Nov. 19, 2002), aff’d without publ. Op., No. 03-5031, 2003 WL 21538073, *1 (D.C. Cir. July 2, 2003)(per curiam). In considering whether equitable tolling applied to the limitations period in the CAA, the district court acknowledged the Thompson decision, but found the reasoning of district court’s opinion in Halcomb v. Office of the Senate Sergeant-AtArms of the United States Senate “to be more persuasive.” Id. at 12 (citing Halcomb, 209 F. Supp. 2d 175, 179 (D.D.C. 2002). Particularly persuasive was that “[t]he Halcomb court, instead of
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focusing on the similarities between the CAA and Title VII sections regarding administrative filings, examined dissimilarities between the two statutes’ jurisdictional provisions.” Gibson, slip. op. at 12. The Gibson court found the distinction between the structure of the two statutes to be “significant” and, relying on the Supreme Court’s decision in Block v. North Dakota, 461 U.S. 273, 287 (1983), held:
Given the clear language of Section 1408 and the Supreme Court’s guidance in interpreting Congressional waivers of sovereign immunity, this Court agrees with the Halcomb court and finds the doctrine of equitable tolling does not apply to actions brought under the CAA. Gibson, slip. op. at 13. On appeal, the D.C. Circuit summarily affirmed the Gibson Court’s holding that plaintiff “failed to timely file a request for counseling pursuant to the [CAA].” See 2003 WL 21538073 at *1. In contrast to Title VII, the CAA does specifically limit the Court’s jurisdiction to cases in which plaintiff has timely exhausted the administrative remedies. See 2 U.S.C. § 1408(a). This Court is persuaded that by explicitly using the phrases “under section 1402" and “under section 1403," in the CAA’s jurisdictional grant to the district courts, Congress intended to incorporate the timeliness requirement of sections 1402 and 1403 for purposes of establishing jurisdiction.
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For all these reasons, this Court finds that timely exhaustion of administrative remedies is a jurisdictional requirement to filing suit.
2. Sovereign Immunity is Waived Only for Covered Employees who Timely Comply with the Counseling and Mediation Requirements. This Court must interpret CAA’s language against the backdrop of the sovereign immunity doctrine. The United States, as sovereign, is “immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court defines the court’s jurisdiction to entertain the suit.” United States v. Dalim, 494 U.S. 596, 608 (1990). Plaintiffs argue that the CAA was intended to be as broad as Title VII: “The following laws shall apply . . . to the legislative branch of the Federal Government . . . (2) Title VII of the Civil Rights Act of 1964 . . .” 2 U.S.C. § 1302(a). As further evidence of a broad waiver of sovereign immunity, plaintiffs note that section 1311(a) states that “[a]ll personnel actions affecting covered employees shall be made free from any discrimination.” Further, plaintiffs observe that in the legislative history, members of both the Senate and House made floor statements expressing their belief that the anti-
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discrimination laws would apply to Congress as they have applied to private constituents. Pls.’ Opp’n at 6-7.
However, as the Supreme Court has instructed, a waiver of sovereign immunity must be “unequivocally expressed” and its conditions must be “strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981). “So long as a statute supposedly waiving immunity has a ‘plausible’ non-waiver reading, a finding of waiver must be rejected.” Galvan v. Federal Prison Industries, 199 F.3d 461, 464 (D.C. Cir. 1999)(citing United States v. Nordic Village, Inc. 503 U.S. 30, 37 (1992)). Moreover, “[a] statute’s legislative history cannot supply a waiver that does not appear clearly in any statutory text; the ‘unequivocal expression’ of elimination of sovereign immunity that [the Supreme Court] insist[s] upon is an expression in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996).
Moreover, the Supreme Court specifically discussed the implications of a statute of limitations contained in legislation that waives sovereign immunity:
When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction. In particular, ‘[w]hen waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereignty.’
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United States v. Mottaz, 476 U.S. 834, 841 (1986)(quoting Block v. North Dakota, 461 U.S. 273, 287 (1983)). Here, the CAA contains limitation provisions in sections 402 and 403, both of which are referenced in section 408. Unlike in Zipes, which did not involve a suit against the United States or discuss waiver of sovereign immunity, the 180-days limitation period in section 402 “define[s] the extent of the court’s jurisdiction” and constitutes a condition on the waiver of sovereign immunity. See Mottaz, 476 U.S. at 841. The Gibson court agreed: “To find otherwise, would be to ‘extend the waiver’ in absence of any evidence that Congress intended a different result from the plain language of the provision.” Gibson, slip. op. at 13.
Although this Court is cautious in its reliance on legislative history when examining sovereign immunity, it is not insignificant that the sponsoring Senators introduced a sectionby-section analysis of the CAA into the Congressional Record. 141 Cong. Rec. S622 (Jan. 9, 1995). The analysis of Section 402 states the consequences for untimely filing:
For claims under any of these statutes, the request for counseling must be made within 180 days after the date of the alleged violation. A failure to request counseling within the time period bars an employee from proceeding under this act to redress violations under these sections. Id. at S629. Thus, it appears to this Court that the timeliness requirement is a condition of waiver of sovereign immunity -
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failure to comply is fatal. See Halcomb, 209 F. Supp. 2d 179; Gibson, slip. op. at 11-13.
3. Certification of a Class Action Would Not Waive the Requirement to Complete Counseling and Mediation Plaintiffs concede that eighty-eight plaintiffs in this case did not go through mediation and counseling but wish to be included in the class action. Tr. 5/11/04 at 66-67. Plaintiffs argue that it is well-settled class action jurisprudence that as long as one named plaintiff has satisfied administrative requirements, other plaintiffs with the same claims may join the case. Foster v. Gueory, 655 F.2d 1319, 1321 (D.C. Cir. 1981) (citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975)); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976); Dodge v. Giant Food, Inc., 488 F.2d 1333 n.1 (D.C. Cir. 1973); Macklin v. Spector Freight Systems, Inc. 478 F.2d 979, 985 n.11 (D.C. Cir. 1973). The Foster court noted It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume that the next one would be successful.
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Id. at 1322 (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)). Approving this rationale, the D.C. Circuit went on to explain that:
In class actions, this rationale is invariably applicable, for the very fact that the suit is a class action means that the plaintiffs’ claims not only share common questions of law and fact, but those claims are such that representative plaintiffs will fairly and adequately protect the interests of all plaintiffs of the class. Id. Without the benefit of full briefing on the issue, this Court applied the doctrine of vicarious exhaustion in a proposed class action under the CAA. This Court noted that “any failure to exhaust by Plaintiffs Rucker and Perry will be immaterial if the court decides to certify a class.” Harris v. Office of the Architect of the Capitol, 16 F. Supp. 2d 8, 10 (D.D.C. 1998). This Court now modifies its prior position. 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 described in sections 1402 and 1403." 2 U.S.C. § 1361(e). The D.C. Circuit’s pronouncement in Foster v. Guery is grounded in the Supreme Court’s decision in Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975). In Albermarle Paper Co.,
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the Supreme Court rejected petitioners’ claims that no backpay could be awarded to individuals who had not filed a charge with the EEOC. Id. In doing so, the Court noted that courts of appeal had unanimously rejected this argument prior to the passage of the 1972 Equal Employment Opportunity Act, which amended Title VII. However, when the 1972 Act was in the Conference Committee, Congress specifically rejected a provision in the House bill (H.R. 1746) that would have barred individuals who had not filed an EEOC charge. Id. Therefore, under Title VII as interpreted in Albermarle Paper, an award to class members who did not file an EEOC charge is authorized by section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g). See e.g. Robinson v. Lorillard Corp., 444 F.2d 791, 802 & n.13 (1971).
While the CAA does incorporate the remedial provisions of 42 U.S.C. § 2000e-5(g), this incorporation is limited by the “generally applicable remedies and limitation” in section 1361 of the CAA. See 2 U.S.C. §§ 1311(b)(1)(A), 1361. Section 1361(e) specifically limits the remedies available under section 706(g) of Title VII, and all other remedial provisions incorporated by the CAA from other employment laws, by stating that “[o]nly a covered employee who has undertaken and completed the procedures described in sections 1402 [counseling] and 1403 [mediation] of
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this title may be granted a remedy under part A of this subchapter.” 2 U.S.C. § 1361(e).
A “statute should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant.” American Radio Relay League, Inc. v. FCC, 617 F.3d 875, 879 (D.C. Cir. 1980). Construing the CAA as plaintiffs suggest, to allow vicarious exhaustion, would effectively render section 1361(e) null and void by allowing this Court jurisdiction over the claims of individuals who did not request counseling and mediation.
Moreover, section 1361(f)(1) makes clear that, where there are conflicts between the CAA and laws incorporated by it, the CAA prevails. 2 U.S.C. § 1361(f)(1)(“Except where inconsistent with definitions and exemptions provided in this chapter, the definitions and exemptions in the laws made applicable by this chapter shall apply under this chapter.”).
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. See 2 U.S.C. §§ 1361(e), 1402, 1408. Otherwise, permitting officers who have not exhausted their administrative remedies to proceed through the class action
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mechanism would impermissibly create a substantive right and
remedy in contravention of the doctrine of sovereign immunity.2
4. Adverse Action requirement
The D.C. Circuit has instructed that the “common element for
discrimination and retaliation claims against federal employers,
and private employers, is . . . some form of legally cognizable
adverse action by the employer.” Brown v. Brody, 199 F.3d 446,
453 (D.C. Cir. 1999). For a plaintiff to prevail, she must be
able to demonstrate that she has suffered “materially adverse
2 Plaintiffs have argued that “whether a Rule 23 class action can be brought as a class action under the CAA is really a procedural issue, not a jurisdictional one, and it appropriately governed by the Federal Rules.” Pls.’ Opp’n at ¶12. However, the Supreme Court has stated:
An authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge that jurisdiction and [the Rules Enabling Act] authorizing this Court to prescribe rules of procedure in civil actions gave it no authority to modify, abridge or enlarge the substantive rights of litigants or to enlarge or diminish jurisdiction of federal courts. United States v. Sherwood, 312 U.S. 584, 589-90 (1941). More than fifty years later, the Court declared the same position: Rule 23's requirements must be interpreted in keeping with Article III constratints, and with the Rules Enabling Act, which instructs that ‘rules of procedure shall not abridge, enlarge or modify any substantive right.’ 28 U.S.C. 2072(b). See also Fed. Rule Civ. Pro. 82 (“rules shall not be construed to extend the [subject matter] jurisdiction of the United States district courts”). Amchem Prods. Inc., v. Windsor, 521 U.S. 591, 613 (1997).
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consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” Id. at 457. Specifically, a plaintiff must be able to show that the adverse employment action creates a tangible economic effect on plaintiff’s employment, such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 456.
In Brown, the D.C. Circuit held that “a plaintiff who is made to undertake or who is denied a lateral transfer – that is, one in which she suffers no diminution in pay or benefits – does not suffer an actionable injury unless there are some other terms, conditions, or privileges of her employment or her future employment opportunities.” Brown, 199 F.3d at 457.
Courts have also held that a claim of an undesirable assignment, without any effect on salary, benefits, or grade, is similar to claims regarding lateral transfers, and thus does not constitute an adverse action. See Crenshaw v. Georgetown Univ., 23 F. Supp. 2d 11, 18 (D.D.C. 1998) aff’d No. 98-7194 (D.C. Cir. Aug. 13, 1999)(holding, prior to Brown, that change in duties without corresponding reduction in pay is not an adverse action).
Moreover, in Brown, the Court found that a letter of
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admonition did not constitute an adverse action. Brown, 199 F.3d at 458. In Stewart v. Evans, the D.C. Circuit specifically recognized that “formal criticisms or reprimands, without additional disciplinary action such as a change in grade, salary, or other benefits do not constitute adverse employment actions.” 275 F.3d 1126, 1136 (D.C. Cir. 2002). Further, the D.C. Circuit has required a showing that a poor performance evaluation had an actual effect on an employee’s pay or benefits to constitute an adverse action. Russell, 257 F.3d at 818-19.
While the Court offers no opinion on whether these types of complaints can contribute to a hostile work environment, it seems clear that lateral transfers, undesirable assignments, and disciplinary warnings do not constitute adverse action.
B. The Remaining Claims 1. Fulfilling Counseling and Mediation Requirements Plaintiffs bear the burden of persuasion to establish
subject matter jurisdiction in response to a Rule 12(b)(1) Motion to Dismiss. See Thompson v. Capitol Police Board, 120 F. Supp. 2d 78, 81 (D.D.C. 2000). The CAA allows a covered person “only to seek redress for a violation for which the employee has completed counseling and mediation.” 2 U.S.C. § 1408(a). Plaintiffs bare allegations that they have “completed counseling
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and mediation with the Office of Compliance as required” are insufficient to establish subject matter jurisdiction in the face of a challenge. Jt. Comp. ¶¶ 7, 11.
Plaintiffs argue that nothing in the language of the CAA limits the mediation and counseling requirement to an individual employee, or indicates that an individual class agent may not fulfill the counseling and mediation requirement on behalf of a class of employees. However, nothing in the language of the CAA permits one person to fulfill the requirement for others. Instead, the waiver of sovereign immunity has been clearly articulated only as it applies to individual claimants. 2 U.S.C. § 1361(e)(“Only a covered employee who has undertaken and completed the procedures described in sections 1402 [counseling] and 1403 [mediation] of this title may be granted a remedy under part A of this subchapter.”)(emphasis added).
In defendant’s first motion to dismiss, defendant identified twenty-two plaintiffs who failed to request counseling within 180 days of their termination date. Defendant notes that plaintiff James Griffin was not employed by defendant after November 4, 1998 - the cutoff date for the proposed class. See Jt. Comp. ¶¶ 1, 13, 46; Def.’s Second Mot. To Dismiss Ex. I. Also in defendant’s first motion to dismiss, defendant identified twelve plaintiffs who failed to request mediation within 15 days of
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receiving notice that counseling was completed. See Def.’s Second Mot. to Dismiss Ex. J. Defendant asserts that only six plaintiffs timely requested and participated in mediation. See Def.’s Second Mot. to Dismiss Ex. K, L. Defendant argues that all of these plaintiffs’ claims should be dismissed for lack of jurisdiction.
Plaintiffs argue that the Office of Compliance made a determination that 270 plaintiffs had completed mediation when it issued the August 2, 2001, Notices of End of Mediation. See Pls.’ Opp’n Ex. 1 at Ex. C. Plaintiffs state that in addition to the plaintiffs who participated in individual counseling, several other plaintiffs participated in three mass counseling sessions that the Office of Compliance designed to accommodate the large number of officers seeking counseling. As further proof of this fact, plaintiffs call the Court’s attention to the Report to Congress on the Use of the Office of Compliance by Covered Employees for 2001. Pls.’ Opp’n Ex. 3. The report notes that 278 USCP Officers requested counseling. Id. at 10. Plaintiffs argue that as an independent agency, the Office of Compliance is entitled to substantial deference when it reasonably interprets its own procedures. See Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
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In response, defendant argues that the Office of Compliance’s position on § 1361(e), that each individual covered employee must abide by the counseling and mediation provisions of the CAA, should be afforded “substantial deference” under Chevron. Defendant notes that from the beginning of the administrative process the Office of Compliance has been unwilling to accept a class complaint.3 When the Office of Compliance promulgated its procedural rules in 1995, one commenter “requested that the rule specifically set forth the procedures governing class actions.” Def.’s Second Mot. to Dismiss Ex. 11. The Office of Compliance declined to promulgate such rules and noted that the availability of class claims involved “substantive legal questions that are not appropriately addressed in these procedural rules.” Id. Further, after issuing the end of mediation notice, the Executive Director of the Office of Compliance informed plaintiffs’ counsel that, if
3 See Apr. 13, 2001 Letter from W. Thompson II to United States Capitol Black Police Ass’n and C. Ware. The day after materials were delivered to the Office of Compliance regarding “approximately 200 individual Capitol Police officers, former officers, and former recruits” the Executive Director notified plaintiffs’ attorney that “the CAA requires that all proceedings be commenced by a request by an employee for counseling” and it was accepting the materials “as requests for counseling by each and every individual names in the material.” Id. at 1-2. Each officer’s case was assigned its own number and treated as an individual case throughout counseling and mediation. See Def.’s Mem. at 10.
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they elected to file a single action in federal district court, “such an action cannot be maintained as a traditional representative ‘class action’ as that concept is understood by the Federal Rules of Civil Procedure” because 2 U.S.C. § 1361(e) only permits relief for employees who have completed counseling and mediation.4 See Def.’s Second Mot. to Dismiss Ex. C.
Neither plaintiffs’ argument that the Office’s issuance of a notice of the end of mediation is a successful completion of administrative remedies deserving of Chevron deference, nor defendant’s argument that the Office’s unwillingness to promulgate class action rules is a rejection of class action complaints deserving of Chevron deference, is persuasive. By its terms, Chevron deference only applies when an agency is interpreting an ambiguous statute. In issuing the notices of the end of mediation, the Office of Compliance was not interpreting whether mediation had been completed, but rather, the Office was performing a purely ministerial task as mandated by the CAA. 2 U.S.C. § 1403(c). The performance of a ministerial task is not entitled to any deference. The Office of Compliance’s refusal to
4 Defendant is correct to concede that the Office of Compliance’s interpretation of the jurisdictional provisions in Section 1408 is not entitled to Chevron deference because “interpreting statutes granting jurisdiction to Article III courts is exclusively the province of the Courts.” Murphy Exploration & Prod. Co. v. United States Dep’t of the Interior, 252 F.3d 473, 478 (D.C. Cir. 2001).
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issue procedural rules and substantive regulations is not a proper application of Chevron deference.
Section 1402 provides “A request for counseling shall be made not later than 180 days after the date of the alleged violation.” 2 U.S.C. § 1402; see Gibson v. Office of the Architect of the Capitol, Civ. Action No. 00-2424 (CKK), slip op. at 7-10 (D.D.C. Nov. 19, 2002) (finding that the claim of discrimination has not been timely filed because the limitations period begins to run on the date plaintiff was informed of his non-selection, not the date plaintiff was able to observe the age of the successful candidate), aff’d without publ. Op. No. 035031, 2003 WL 21538073, *1 (D.C. Cir. July 2, 2003)(per curiam)(noting its summarily affirmance that plaintiff “failed to timely file a request for counseling pursuant to the [CAA]”); Thompson v. Capitol Police Board, 120 F. Supp. 2d 78, 82-83 (D.D.C. 2000)(finding the court lacked jurisdiction to hear the cases under the CAA because plaintiff filed his request for counseling 188 days after the alleged violation). Because section 1402 is a jurisdictional requirement and because it is a waiver of sovereign immunity, it must be strictly construed. To the extent that any plaintiffs did not request counseling within 180 days of the alleged discriminatory act, those plaintiffs’ claims shall be dismissed.
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Moreover, section 408 cannot be read in isolation from section 403(b), which defines the process of mediation as one that “shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office.” 2 U.S.C. § 1403(b)(2).
The Office of Compliance has issued a regulation which described mediation as follows:
Mediation is a process in which employees, employing officers and their representatives, if any, meet separately and/or jointly with a neutral trained to assist them in resolving disputes. As parties to the mediation, employees, employing officers, and their representatives discuss alternatives to continuing their dispute, including the possibility of reaching a voluntary, mutually satisfactory resolution. OC Rule 2.04(a). Because this is a proper context for Chevron deference, and the empowered agency promulgated regulations to explain an ambiguity in the statute, the Court shall defer to the Office of Compliance’s definition of mediation. See Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Thus, mediation is a process that requires, at the very least, meetings involving the parties and a neutral. It also requires an employee’s presence. OC Rule 2.04(a); 2 U.S.C. § 1403(b)(2). Here, to the extent that only a few plaintiffs attended mediation, defendant was not afforded an “opportunity to right any wrong it may have committed.” See Jasch v. Potter, 302 F.3d
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1092, 1096 (9th Cir. 2002)(citing McRae v. Librarian of Congress,
843 F.2d 1494, 1496 (D.C. Cir. 1988).
An employee shall not be permitted to “complete mediation”
by merely requesting mediation and then refusing to participate.
To permit such behavior would thwart Congressional intent by
eviscerating the mediation requirement established by Congress.
See Vinieratos v. United States Dep’t of Air Force, 939 F.2d 762,
772 (9th Cir. 1991). Moreover, the Office of Compliance has
recognized a good faith requirement by incorporating a good faith
clause in the mediation agreement referenced in OC Rule
2.04(f)(2).5 See Def.’s Second Mot. to Dismiss Ex. N
5 The mediation began on June 5, 2001 and was terminated by a joint request of the parties on August 1, 2001. Beginning on July 25, 2001, defendant expressed its willingness to extend the mediation period and to proceed with several sessions at the same time so that all individual officers could participate. See Ex. M at 2 Aug. 1, 2001 Manning Letter. All plaintiffs opted not to participate further. See Ex. K at ¶ 7. On July 26, Officer Blackmon-Malloy, President of the United States Capitol Police Black Police Association, sent a letter to Christopher Ware stating that their “resources will better serve [them] in U.S. District Court” rather than in continuing the mediation process. See Ex. B. July 26, 2001 letter from Blackmon-Malloy to C. Ware. Defendant urges this Court to find that plaintiffs failed to participate in the mediation process in good faith. However, plaintiffs’ decision not to extend mediation after their statutorily required 30 days shall not be held against them, as an extension can only be granted if both parties consent. See 2 U.S.C. §§ 1403(c), 1404. The exhaustion of administrative remedies requirement was not meant to “erect a massive procedural roadblock to access to the courts. . .” Jasch v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002).
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2. This Court cannot exercise jurisdiction over plaintiffs whose employment ended prior to the effective date of the CAA - January 26, 1996. In defendant’s first Motion to Dismiss, defendant identified seventeen plaintiffs whose termination dates were prior to the effective date of the CAA. Plaintiffs’ joint second amended complaint acknowledges that plaintiffs only seek to represent African-American officers employed by defendant after November 4, 1998. Jt. Comp. ¶ 1. However, at least four of the individuals listed in paragraph forty-six of the joint second amended complaint were previously identified by defendants as included in the seventeen whose termination dates were prior to the CAA. Defendant argues that these individuals claims should be dismissed. Plaintiffs respond by noting that this is an issue more appropriately dealt with after sufficient discovery has taken place to verify these allegations. Because plaintiffs bear the burden of persuasion to establish subject matter jurisdiction in the face of a Federal Rule of Civil Procedure 12(b)(1) challenge and plaintiffs have offered no justification for why these dates are not undisputed and easily discernable, these plaintiffs’ claims shall be dismissed.
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3. Only plaintiffs who participated in the 2000 Promotion Process have potentially viable promotion claims. The Supreme Court has explained that for discrete acts of discrimination or retaliation, a party must file an administrative charge within the limitations period, as measured from the date the act occurred. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court further held that related discrete acts cannot be combined into a single unlawful practice for the purpose of timely filing. Id. “[D]iscrete acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. The Supreme Court noted that discrete acts included “termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114. In distinguishing discrete acts from a “hostile work environment,” the Court emphasized that a hostile work environment “cannot be said to occur on any particular day.” Id. at 115. “Provided that an act contributed to the [hostile work environment] claim occurs within the filing period, the entire time period of the hostile work environment may be considered by a court for the purposes of determining liability.” Id. at 117. Thus, while a plaintiff can seek counseling for a hostile work environment claim under the CAA within 180 days of an act by defendant that contributed to the hostile environment, a
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plaintiff must seek counseling regarding a discrete act of discrimination or retaliation within 180 days of the date the act actually occurred. Defendant argues that plaintiff cannot “cobble together a conglomeration of discrete acts” under the guise of a hostile work environment. Def.’s Mot. to Dismiss at 18.
In National Railroad Passenger Corp v. Morgan, the Supreme Court reserved the question of whether acts before the filing period are actionable as part of a “pattern-or-practice” case. Id. at 115 n.9. A “pattern-or-practice” case is one that alleges “systematic discrimination against a protected class of individuals where the alleged act reflect an intent to discrimination against all persons in the class.” Haynie v. Veneman, 272 F. Supp. 2d 10, 17 n.4 (D.D.C. 2003).
A “failure to promote” is a discrete act which must be pursued within the limitations period. Morgan, 536 U.S. at 11314. Generally, a plaintiff may not complain about a failure to promote when he did not seek to be considered for a promotion. See Cones v. Shalala, 199 F.3d 512, 516-17 (D.C. Cir. 2000). Plaintiffs note that the Supreme Court has held that applicants faced with a consistently enforced discriminatory policy may seek relief for non-promotions or non-selections even if they did not
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apply. Teamsters v. United States, 431 U.S. 324, 365 (1977). In doing so, the Court noted
A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to humiliation of explicit and certain rejection . . . a per se limitation on the equitable powers granted to courts by Title VII would be manifestly inconsistent with the historic purpose of equity to secure complete justice and with the duty of courts in Title VII cases to render a decree which will so far as possible eliminate the discriminatory effects of the past. Id. (citation omitted). The Court further explained that “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture, he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” Id. at 365-366. Plaintiffs assert that some members of the class, such as Plaintiff Leonard Ross, participated in four promotions exams and had not been promoted despite being well qualified. Jt Comp. ¶ 37. Plaintiffs argue that to require Officer Ross to have participated in the 2000 promotion process in order to state a claim would be in contravention of Teamsters. Here, however, Teamsters cannot save any of the nonpromotion claims that would be barred by the 180-day limitations period under the CAA. See 2 U.S.C. § 1402(a). Plaintiffs’ cause of action would accrue at the time plaintiffs “finally
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realized” that participation in the 2000 process was a futile gesture. Under the current promotion process, officers are informed of their eligibility and must indicate whether they intend to participate in the exam. When an officer decided not to participate because she believed that the system was a “sham,” her cause of action began to accrue. See generally McCants v. Glickman, 180 F. Supp. 2d 35, 40-41 (D.D.C. 2001)(limitations period begins to run when plaintiff has “reasonable suspicion” that he was being discriminated against).
Plaintiffs argue that this Circuit has not addressed the specific question of whether promotion from a tainted employment list constitutes a continuing violation. Plaintiffs argue that this Court should adopt the standard of the Second Circuit and find that each time a member of the plaintiff class is denied a promotion, he or she suffers an act of discrimination in furtherance of a “continuously maintained illegal employment policy” where “the results of a test were in effect being used to discriminate.” Guardians Association v. Civil Service Commission of the City of New York, 633 F.2d 232, 249 (2d. Cir. 1980).
However, with regard to the CAA and against the backdrop of a limited waiver of sovereign immunity, this Court is not inclined to follow the Second Circuit’s approach. For the 2000
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promotion process, the participation opt-in date for both the Sergeant’s and Lieutenant’s exam was August 1, 2000, which is more than the 180 days prior to any request for counseling. See Def.’s Reply Ex. 1 Jones Decl. ¶ 2 & Exs. A-B. Accordingly, only those officers who participated in the 2000 promotion process may challenge the process.
4. Relaxed initial pleading requirements of class member who are not “named plaintiffs” or class agents. Defendant argues that plaintiffs’ current complaint, which states that several plaintiffs stated “provable claims of discrimination with respect to matters alleged in this Complaint,” is insufficient to meet even the minimal standards of Federal Rule of Civil Procedure Rule 8(a)(2). See Swierkewicz v. Sorema, 514 U.S. 506, 514 (2002). Swierkewicz requires plaintiffs to “give defendant fair notice of what [plaintiffs’] claims are and the grounds upon which they rest.” Id. Regardless, if a class is certified, then the claims of the class members will be the same as the claims of the named class agents and class representatives. See Foster v. Gueory, 655 F.2d at 1321. As long as a class action is pending, the employer is on notice of the claims of all class members. Cf. Laffey v. Northwest Airlines, 576 F.2d 429, 472 (D.C. Cir.
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1976)(finding the filing of EEOC charge by any class member provides sufficient notice to defendant with respect to all class members). If class certification were denied, any plaintiffs seeking to pursue individual claims would need to satisfy Federal Rule of Civil Procedure 8's pleading requirements.
5. Non-timely disparate impact claims shall be dismissed. In the Joint Second Amended Complaint, plaintiffs allege that the USCP “has established and maintained a racially discriminatory system which discriminates against its African American officers in promotions, other selections, work assignments, discipline, and termination in a way that is excessively subjective and which has had a disparate impact on African American employees.” Jt. Comp. ¶ 53. In support of their disparate impact claim, plaintiffs alleged the 29 percent of the USCP force is African American, while only 13 percent of the upper ranks (Sergeant and above) are African American. Id. ¶¶ 20-21. While it is unclear whether these generalized allegations are sufficient to withstand a motion to dismiss, it is clear the plaintiffs have not alleged that the “excessively subjective” system had a disparate impact on African Americans within 180
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days of the first request for counseling. Plaintiffs have not alleged that the 2000 Sergeant’s or Lieutenant’s promotion process had a disparate impact on African American officers. Plaintiffs have not alleged that an African American officer was denied a promotion based on the existence of a command discipline or performance notes in his or her personnel file or received unfavorable assignments within 180 days of the first request for counseling. Without a timely request for counseling and mediation, these claims also fail.
VI. Conclusion At this juncture, the Court has been presented with
hundreds of pages of pleadings regarding these claims. This Court has endeavored to provide the parties with some guidance regarding its interpretation of the Congressional Accountability Act. At this time, it is unclear which, if any, of plaintiffs’ claims remain viable. Accordingly, because it is a plaintiff’s burden in the face of a Rule 12(b)(1) challenge, 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 as explained in this Memorandum Opinion. Any Motion for
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Reconsideration shall be filed by no later than November 1, 2004. The Motion shall clearly state (and provide appropriate documentation for) the allegedly discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended. This Court shall not consider claims that do not appear in the Complaint. Any Response to this Motion shall be filed by no later than December 1, 2004. Any Reply shall be filed by no later than December 15, 2004; and it is further
ORDERED that in light of the above decision, the pending Motion to Certify a Class and the pending Motion to Add Class Agents shall be DENIED AS MOOT; and it is further
ORDERED that plaintiffs in the consolidated cases of Blackmon-Malloy v. U.S. Capitol Police Board, Civ. No. 02-1859; Fields v. U.S. Capitol Police Board, Civ. No. 02-1346; Ross v. U.S. Capitol Police Board, Civ. No. 02-2481; Fields v. U.S. Capitol Police Board, Civ. No. 03-1505, Bolden-Whitacker v. U.S. Capitol Police Board, Civ. No. 03-2644; Young v. U.S. Capitol Police Board, Civ. No. 04-320 shall file an appropriate pleading, by no later than November 1, 2004, explaining how they have conformed to the exhaustion requirements. The pleading should detail the allegedly discriminatory act, the date the act
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occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended. Any Response shall be filed by no later than December 1, 2004. Any Reply shall be filed by no later than December 15, 2004.
Because the Court anticipates the filing of Motions for Reconsideration, the Court shall not issue a separate Order granting judgment for defendant in accordance with Federal Rule of Civil Procedure 58. If plaintiffs do not move for reconsideration, the Court shall enter a final order upon motion of defendant.

Signed:

Emmet G. Sullivan United States District Judge September 30, 2004

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Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2009

Decided July 31, 2009

No. 07-5320

SHARON BLACKMON-MALLOY, ET AL., APPELLANTS

v.

UNITED STATES CAPITOL POLICE BOARD, APPELLEE

Consolidated with Nos. 07-5321 and 07-5322
Appeals from the United States District Court for the District of Columbia (No. 01cv02221)

Lenore C. Garon argued the cause for appellants. With her on the briefs were Joseph D. Gebhardt and Charles W. Day, Jr.

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Peter Ames Eveleth, General Counsel, and William Wachter, Attorney, were on the brief for amicus curiae Office of Compliance in support of appellants.
Harry B. Roback, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Frederick M. Herrera, Attorney, United States Capitol Police Board, entered an appearance.
Before: SENTELLE, Chief Judge, GINSBURG and ROGERS, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In the Congressional Accountability Act of 1995 (“the CAA”), 2 U.S.C. § 1301, et seq., Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch. In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief. However, rather than use the pre-complaint regimes in place for other federal employees, Congress created an Office of Compliance and vested it with broad responsibility for counseling and mediation and adoption of rules of procedure.
In these appeals by United States Capitol Police officers from the dismissal of their discrimination complaint for failure to exhaust, three aspects of this regime are at issue: whether the three-step process is jurisdictional, whether in-person attendance by the employee is required at counseling or mediation, and whether receipt of end of counseling and mediation notices demonstrates completion of counseling and mediation. We hold

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the three-step process is jurisdictional and thus affirm the district court ruling that equitable doctrines, such as vicarious exhaustion, do not apply to excuse compliance with it. We reverse, however, the district court’s in-person ruling, holding that neither the CAA nor the procedural rules of the Office of Compliance require in-person attendance by the employee at counseling or mediation. Finally, we hold that receipt of written notice of the end of mediation from the Office of Compliance triggered the CAA’s 30 to 90-day period for electing whether to pursue judicial or administrative relief and demonstrated the employee’s completion of counseling and mediation. Accordingly, we remand the cases to the district court.
I.
Subchapter IV of the CAA, titled “Administrative and Judicial Dispute Resolution Procedures,” provides that prior to filing a complaint with the Office of Compliance (“Office”) pursuant to section 1405 or in the district court pursuant to section 1408, an employee1 must do three things:
First, “to commence a proceeding,” the employee must request counseling within 180 days of the date of the alleged violation of a law made applicable by the CAA. Id. § 1402(a). As regards counseling, “[t]he Office shall provide the employee with all relevant information with respect to the rights of the employee.” Id. The CAA further provides that “[t]he period for counseling shall be 30 days unless the employee and the Office agree to reduce the period.” Id. § 1402(b). The Office must “notify the employee in writing when the counseling period has ended.” Id. § 1402(c).
1 Section 1301(3) defines which employees of the Legislative Branch are eligible to seek relief. 2 U.S.C. § 1301(3); see id. § 1316a(5).

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Second, “[n]ot later than 15 days after receipt . . . of notice of the end of the counseling period . . . but prior to and as a condition of making an election under section 1404,” the employee must “file a request for mediation with the Office.” Id. § 1403(a). Mediation “may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director” of the Office, id. § 1403(b)(1), but “shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office,” id. § 1403(b)(2). The mediation period “shall be 30 days,” which may be extended upon joint request of the parties, id. § 1403(c), and (as with counseling) the Office must “notify in writing the covered employee and the employing office when the mediation period has ended,” id.
Third, between 30 and 90 days of the receipt of the end-of-mediation notice, the employee who wishes to pursue his or her claims must elect, pursuant to section 1404, to file either (1) an administrative complaint with the Office pursuant to section 1405 or (2) a civil complaint in the federal district court pursuant to section 1408. Only the latter proceeding is at issue here.
In providing for judicial proceedings, two sections of the CAA are relevant here. Section 1408(a), titled “Jurisdiction,” provides:
The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation

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for which the employee has completed counseling and mediation.
Id. § 1408(a). Section 1410, titled “Other judicial review prohibited,” provides that “[e]xcept as expressly authorized by sections 1407, 1408, and 1409 . . . , the compliance or noncompliance with the provisions of this chapter and any action taken pursuant to this chapter shall not be subject to judicial review.” Id. § 1410.
This was the statutory framework when, between April 12 and May 15, 2001, officers from the United States Capitol Black Police Association delivered materials to the Office, on behalf of “approximately 200 individual Capitol Police officers, former officers, and former recruits” (collectively “officers”), asserting that the Police Board and others had violated 2 U.S.C. § 1311, which made applicable protections under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and Title I of the Americans with Disabilities Act of 1990. The materials identified Charles Jerome Ware, Esq., as their attorney. By letter of April 13, the Executive Director of the Office informed the Association and Attorney Ware of the CAA’s counseling and mediation requirements and advised that he had accepted the materials submitted as “requests for counseling by each and every individual named in the material.” Ltr. from William W. Thompson II to Charles Jerome Ware at 2 (Apr. 13, 2001). Counseling was conducted in three mass counseling sessions that took place on April 28, April 30, and May 5, 2001. The Office issued to the complainants written “Notifications of End of Counseling Period” on May 16 and June 15, 2001, based on the date counseling was requested.
On June 5, 2001, Attorney Ware requested mediation “on behalf of all the employees he represent[s].” Ltr. From Charles

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Jerome Ware to William W. Thompson II at 1. On June 12, the Office appointed Herbert Fishgold and Marvin Johnson as mediators for the cases. Additional officers requested mediation on June 27, 2001. On June 28, the parties jointly requested extension of the mediation period to October 1, 2001, but the Executive Director extended the period only to August 1, explaining that “[i]f the parties are engaged in serious mediation efforts, further extensions will be reviewed favorably.” Notice of Extension of Mediation (June 29, 2001). In mid-July, Attorney Ware provided further information about approximately 76 of his clients. Upon agreement of the parties to proceed in alphabetical order, multiple mediation sessions were conducted on July 23 and 25, 2001. Attorney Ware’s records show various telephone calls and meetings with the mediators in June and July, and by sworn declaration he stated that prior to August 2, 2001, he had spoken on behalf of all his clients with Office representatives, the mediators, and counsel for the Police Board and had represented selected officers in joint mediation sessions conducted by the Office. Ware Decl. May 21, 2004.
On August 2, 2001, the Office sent Attorney Ware and the Police Board a “NOTICE OF END OF MEDIATION” advising them of the dates of mediation and that the matters underlying the requests for mediation were not resolved. The notice also advised that the officers had to make an election pursuant to section 1404 to proceed under sections 1405 or 1408 “not later than 90 days, but no sooner than 30 days, after [they] ha[d] received this notice.” The notice provided further details about proceedings under section 1405. Attached to the notice was a five-page single-spaced listing of the names and case numbers of the officers to whose claims the notice applied. On October 2, 2001, the Office certified, through its custodian of records, the dates of the requests for counseling and mediation, the dates the

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notices of the ends of those periods were mailed, and the dates receipt of the notices was acknowledged.
The officers filed a complaint in the district court on October 29, 2001, identifying by name more than 250 current and former Capitol Police officers. They alleged systematic discrimination against minority and female officers, including discrimination in hiring, promotion, discipline, retaliation, and maintaining a hostile work environment, in violation of Title VII, 42 U.S.C. §§ 2000e, et seq., and the Civil Rights Act of 1991, id. § 1981a. Various amended complaints were filed adding plaintiffs. An amended class action complaint filed January 29, 2003, the operative complaint in this appeal, identified more than 100 additional officers as plaintiffs and stated that “[t]he plaintiff class agents have exhausted their administrative remedies by completing counseling and mediation with the Office.” Joint Second Am. Compl. ¶ 7. The Police Board moved to dismiss the amended complaint, and the officers filed an opposition.
The district court dismissed the amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp. 2d 97 (D.D.C. 2004). The district court ruled that the counseling and mediation requirements were jurisdictional, and therefore the doctrine of vicarious exhaustion was inapplicable to excuse compliance with these requirements. Id. at 101-06. It further ruled that mediation had to be completed in person. Id. at 109. And it ruled that receipt of the notices did not establish completion of mediation because “[i]n issuing the notices of the end of mediation, the Office [] was not interpreting whether mediation had been completed.” Id. at 108. The dismissal was without prejudice, id. at 109, to filing a motion for reconsideration showing which, if any, of the officers had timely requested and completed counseling and mediation,

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indicating “the date the claimant attended counseling” and “the date a mediation session was attended.” Id. at 112-13. Subsequently, the district court adopted both the findings of a magistrate judge that only eight of the officers had completed counseling and mediation by in-person attendance, and the recommendation to dismiss all of the other officers’ claims.
II.
Appellants challenge the district court’s interpretation of the CAA that the doctrine of vicarious exhaustion is inapplicable and that in-person attendance by the requesting employee is required at counseling and mediation. They further contend that the notices of end of counseling and mediation were determinative of fulfillment of their counseling and mediation obligations so their lawsuit could proceed on the merits. Our review of these legal questions is de novo. Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008).
Under the doctrine of vicarious exhaustion, each individual plaintiff in a class action need not exhaust his or her administrative remedies individually so long as at least one member of the class has. See, e.g., Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). However, courts have “no authority to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 2366 (2007); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Indeed, the Supreme Court has instructed that if Title VII’s timely filing requirement were jurisdictional, vicarious exhaustion would not apply. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 396-97 (1982). Whether plaintiffs may rely on vicarious exhaustion in a CAA case, then, hinges on whether the counseling and mediation requirements of section 1408(a) are jurisdictional.

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Determining whether the CAA’s counseling and mediation requirements are jurisdictional, an open question in this circuit, Oscarson v. Office of the Senate Sergeant at Arms, 550 F.3d 1, 3 (D.C. Cir. 2008), is a question of statutory interpretation. See Avocados Plus Inc., v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004); see generally King v. St. Vincent’s Hosp., 502 U.S. 215, 218, 221 (1991); Bailey v. United States, 516 U.S. 137 (1995). To make compliance with a statutory provision a prerequisite to federal jurisdiction, a statute must include “direct statutory language indicating that there is no federal jurisdiction prior to [such compliance].” Avocados Plus, 370 F.3d at 1248. “We presume exhaustion is non-jurisdictional unless Congress states [otherwise] in clear, unequivocal terms . . . .” Id. See Hettinga v. United States, 560 F.3d 498, 503 (D.C. Cir. 2009). For example, in Hardin v. City Title & Escrow Co., 797 F.2d 1037 (D.C. Cir. 1986), the court held that time limits in the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq., were jurisdictional because they fell under the statutory heading “Jurisdiction of Courts” and “[b]ecause the time limitation contained in [that statute] is an integral part of the same sentence that creates federal and state court jurisdiction,” making it “reasonable to conclude that Congress intended thereby to create a jurisdictional time limitation,” id. at 1039 (emphasis in original). The court observed that the title descriptor was part of the statute enacted by Congress, not added by a publisher or codifier. Id. A similar conclusion is warranted here.
Section 1408(a) of the CAA, titled “Jurisdiction,” provides that a district court has “jurisdiction over [appropriate actions] commenced . . . by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title.” 2 U.S.C. § 1408(a). Reemphasizing these requirements, the subsection provides: “A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling

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and mediation,” id. As in Hardin, the counseling and mediation requirements appear under the subtitle “Jurisdiction” and are integral parts of the same provision as the grant of jurisdiction. Furthermore, the title was part of the legislation enacted by Congress. See 141 Cong. Rec. H252, H261 (Jan. 17, 1995); id. H285 (Jan. 17, 1995). Therefore, as in Hardin, it is apparent from the plain terms of the text that Congress intended counseling and mediation to be jurisdictional requirements. As the text is clear, our inquiry is complete, Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999), although we note the legislative history confirms this conclusion. See 141 Cong. Rec. S621-02, at S622, S630 (Jan. 9, 1995); see also Am. Fed’n of Labor & Congress of Indus. Orgs. v. Donovan, 757 F.2d 330, 351-52 (D.C Cir. 1985).
The conclusion that Congress intended the three-step process to be jurisdictional is consistent with the statutory scheme that Congress established to handle discrimination (and other) claims by its employees. Although Congress granted its employees the substantive protections of various remedial federal statutes, it established an independent2 Office to oversee claims of unlawful conduct with a focus on informing the employee of relevant rights and then mandating a period of mediation for the parties to determine whether informal resolution of the dispute is feasible and worth pursuing. In doing so, Congress struck a balance between affording its employees the protections enjoyed by other federal employees but initially offering employing offices, which may involve elected Members of Congress, see, e.g., Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc), an
2 Section 1381(a) provides that the Office shall be “an independent office within the legislative branch of the Federal Government.” 2 U.S.C. § 1381(a).

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opportunity to settle claims prior to commencement of formal administrative or judicial proceedings.
Appellants offer no persuasive counter argument, primarily because their contention that the vicarious exhaustion doctrine applies even if the three-step pre-complaint process is jurisdictional proceeds on the faulty premise that Title VII’s timely-filing requirement is jurisdictional. See Appellants Br. 46-47. In Zipes, however, the Supreme Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court” in Title VII cases. 455 U.S. at 393 (emphasis added); see Albemarle Paper Co. v. Moody, 422 U.S. 405, 408 (1975). Furthermore, the precedents on which appellants rely do not stand for the contrary proposition. For example, in Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984), which appellants cite, the Supreme Court explicitly notes this holding in Zipes. Id. at 152 n.6. In any event, although Title VII’s timely filing requirement is not jurisdictional, the CAA does not fully incorporate Title VII. See 2 U.S.C. §1311. The CAA incorporates much of Title VII’s substantive law, but it establishes its own comprehensive administrative regime — including jurisdictional provisions. “The provision granting district courts jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC,” Zipes, 455 U.S. at 393, whereas section 1408(a) of the CAA does include a limit and, therefore, warrants a different conclusion. Therefore, the unincorporated jurisdictional provision of Title VII does not guide our interpretation of the CAA. See id. §§ 1401-1416; see also id. § 1361(f)(1).
Because we hold that the CAA’s counseling and mediation requirements are jurisdictional, the district court correctly ruled that it was not empowered to apply the equitable doctrine of vicarious exhaustion to excuse compliance with those

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requirements. Appellants’ contention that the district court abused its discretion by deciding whether counseling and mediation requirements were jurisdictional before ruling on their motion for class certification fails, as jurisdiction is a threshold question, Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 93-94 (1998). Nothing in section 1410, which prohibits review of action taken pursuant to the CAA except as therein authorized, deprived the district court of jurisdiction to ensure that the parties invoking its jurisdiction had satisfied the requirements of section 1408(a). See also 2 U.S.C. § 1361(d)(1), (e) (“Only a covered employee who has undertaken and completed the procedures described in sections 1402 [counseling] and 1403 [mediation] of this title may be granted a remedy under part A of this subchapter.”). We therefore turn to appellants’ challenge to the district court’s ruling that under section 1408 they must have been present in person for counseling and mediation.
III.
Section 1402(a) provides: “To commence a proceeding, a covered employee . . . shall request counseling by the Office. The Office shall provide the employee with all relevant information with respect to the rights of the employee.” 2 U.S.C. § 1402(a). Section 1403(b) provides that “[m]ediation under this section–
(1) may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director . . . , and
(2) shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office.

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2 U.S.C. § 1403(b). Concluding there was an ambiguity in the latter provision, the district court deferred to the Office’s procedural rules governing mediation, Blackmon-Malloy, 338 F. Supp. 2d at 109 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)), and cited Office Rule (“OC Rule”) 2.04(a), which provides:
(a) Explanation. Mediation is a process in which employees, employing offices and their representatives, if any, meet separately and/or jointly with a neutral trained to assist them in resolving disputes.
OC Rule 2.04(a) (emphasis added). The district court did not discuss its interpretation of this provision, merely citing it as support for its determination that mediation “requires an employee’s presence.” Blackmon-Malloy, 338 F. Supp. 2d at 109. We agree with appellants that this determination was error.
Preliminarily, we are unpersuaded by the Police Board’s position that appellants forfeited the argument that their inperson attendance at counseling and mediation sessions is not required, by failing to raise the argument in the district court. The Police Board relies on the general rule that, absent exceptional circumstances, this court will not entertain arguments not made in the district court, see, e.g., Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 867 (D.C. Cir. 2008). That rule, however, does not apply where the district court nevertheless addressed the merits of the issue. In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court stated that its traditional rule is to consider issues that were “pressed or passed upon below,” id. at 41 (internal quotations and citations omitted), a rule that “operates (as it is phrased) in the disjunctive, permitting review of an issue not pressed so long as it has been passed upon,” id. Although that case involved the Supreme Court’s

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certiorari jurisdiction, this court has held that “the considerations underlying the rule have force for the courts of appeals as well.” United States v. Williams, 951 F.2d 1287, 1290 (D.C. Cir. 1991); see also Jackson v. Culinary Sch., Ltd., 27 F.3d 573, 583-84 (D.C. Cir. 1994), vacated and remanded, 515 U.S. 1139 (1994), reinstated in relevant part, 59 F.3d 254, 255 (D.C. Cir. 1995). Assuming appellants failed to present this argument there, the district court’s opinion clearly addressed the merits of the inperson attendance issue. The district court discussed the definition of mediation under section 1403(b)(2), concluded there was an ambiguity and that Chevron deference was due, and read OC Rule 2.04(a) to require “the employee’s presence.” Blackmon-Malloy, 338 F. Supp. 2d at 109 (citing 2 U.S.C. § 1403(b)(2) and OC Rule 2.04(a)). Review here is thus appropriate because the district court “passed upon” the inperson issue appellants now present to this court.
On the merits, we turn first to the counseling requirement, beginning with the text while recognizing that a holistic approach to the CAA is required. See generally Am. Radio Relay League, Inc. v. FCC, 617 F.2d 875, 879 (D.C. Cir. 1980) (quoting SUTHERLAND, STATUTORY CONSTRUCTION § 46.06, at 63 (4th ed. 1973)). Section 1402(a) refers only to “a covered employee” and is silent on the question whether such employee may receive counseling over the telephone (or by similar means) or may be represented at counseling by a representative in the employee’s absence. Yet Congress surely knew, as the Office points out, that employees covered under the CAA live throughout the United States, far from the Nation’s capital where the Office, which has a small staff, maintains its only office. See Amicus Br. 10, 15. Given the limited purpose of counseling to provide the employee with information about his or her rights and the limited benefit that would inure to the employee or the Office from performing this function in person, reading into the statute an in-person requirement that lacks any

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textual support would appear to produce a result at odds with Congress’s imposition of a 30-day limit for counseling and its vesting in the Office powers to determine the contents of counseling and the rules of procedure, see, e.g., OC Rule 2.03(c)(2).
As regards mediation, section 1403(b)(2), by specifying that mediation “shall involve meetings with the parties,” 2 U.S.C. § 1403(b)(2), could be read to require that, as “parties,” an employee and the employing office must appear in person, with the Office’s Rule 2.04(a) indicating that each may have a representative present as well. But such a literal interpretation would run afoul of the Supreme Court’s instruction that courts should construe statutory language “in accord with its ordinary or natural meaning,” Smith v. United States, 508 U.S. 223, 228 (1993), in the context of the statutory scheme, id. at 233-34 (internal quotation omitted), since “statutory language, plain or not, depends on context,” King, 502 U.S. at 221; see also Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006); Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997). As appellants observe, reading section 1403(b)(2) to require inperson attendance of employees at mediation would require the court to conclude that Congress used the phrase “meetings with the parties” in a manner contrary to its commonly understood use in other mediation and judicial proceedings, which allow a “party” to be represented by counsel in the absence of the client, see Amicus Br. at 20 n.6 (citing D.C. Circuit Rule App. III (Appellate Mediation Program); Arends v. Iowa Select Farms, L.P., 556 N.W.2d 812, 815-16 (Iowa 1996); Envtl. Contractors, LLC v. Moon, 983 P.2d 390, 393 (Mont. 1999)); FED. R. CIV. P. 16(a), (c)(1); D.C. Dist. Ct. Local Rules 84.7, 16.3. Under the interpretation advanced by the Police Board, individual Members of Congress would have to appear at mediation where a Member is the employing office, a meaning that would appear improbable. That Congress rather intended the phrase

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“meetings with the parties” to be a general description of the mediation process, and not to impose a requirement that employees must attend in person, seems evident also from the context in which the phrase is used. While stating that mediation “may” include the covered employee, 2 U.S.C. § 1403(b)(1), the CAA states that it “shall” involve meetings with the parties, id. § 1403(b)(2). It is difficult to square the first permissive instruction with the second requirement if the covered employee must attend mediation in person.
Although commentators suggest that mediation works better when the decision makers appear in person, KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 93 (3d ed. 2004); DWIGHT GOLAN, MEDIATING LEGAL DISPUTES § 5.1.3 (1996), a conclusion that Congress intended to preclude an employee’s appearance through a representative would seem an odd one for Congress to adopt in light of the press of legislative duties and the limited timeframe in which mediation is to occur. The Office explains, for instance, the practical reality that the CAA’s strict time limits could make scheduling in-person mediation, much less counseling, impossible for logistical reasons where employees are located throughout the United States or where there are large numbers of complainants given the small Office staff. See Amicus Br. 10, 15. Even when mediating a claim by a single employee who resides in a geographically convenient location, the Office observes that “[a]part from the questionable fairness of requiring an emotionally distraught or frightened employee to choose between attending mediation sessions against his will and forfeiting his rights under the CAA, the prospect of achieving settlement may be enhanced if the employee is not required to appear in person but instead appears through counsel.” Id. at 16-17 & n.5 (emphasis in original).

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At most, therefore, sections 1402 and 1403 create an ambiguity, as the district court concluded with respect to mediation, that could be filled by the Office’s rules of procedure. See Chevron, 467 U.S. at 842-43. The Police Board maintains Office Rule 2.04(a) unambiguously requires in-person attendance at mediation. To the contrary; the Office’s procedural rules lend only greater support to the conclusion that the “parties” need not attend mediation sessions in-person. As their author, the Office is entitled to deference when interpreting its rules. Despite the fact that this interpretation comes before the court in the form of an amicus brief, the Supreme Court has made clear that in circumstances like those in the instant case, the interpretation is nonetheless “controlling unless plainly erroneous or inconsistent with the regulation,” Auer v. Robbins, 519 U.S. 452, 461 (1997). The Office points out that “Rule 2.04(a) merely paraphrases Section [1]403(b)’s characterization of the mediation process” and was “intended to be descriptive, not prescriptive.” Amicus Br. 13. By contrast, Rule 2.04(f), titled “Procedures,” provides that the “neutral [mediator] has the responsibility to conduct the mediation, including deciding how many meetings are necessary and who may participate in each meeting.” OC Rule 2.04(f)(1) (emphasis added). Furthermore, Rule 2.04(g), titled “Who May Participate,” provides:
A representative of the employee and a representative of the employing office who has actual authority to agree to a settlement agreement on behalf of the employee or the employing office, as the case may be, must be present at the mediation or must be immediately accessible by telephone during the mediation.
OC Rule 2.04(g).

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By requiring that representatives of the employee and employing office have settlement authority or be “immediately accessible by telephone,” the Office contemplated the absence of the employee and the employing office during mediation, and Rule 2.04(g) would be superfluous if the rules actually required the “parties” to attend in person. Amicus Br. 14. For these reasons, the Office’s interpretation of Rule 2.04(a) is not, as the Police Board maintains, “nothing more than an agency’s convenient litigating position,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988), to which the court owes no deference when “wholly unsupported by regulations, rulings, or administrative practice,” id. at 212. Quite the contrary. The Office’s interpretation of Rule 2.04(a) is both consistent with that rule and not plainly erroneous, Auer, 519 U.S. at 462, and is therefore a controlling interpretation of any ambiguity that may exist in that rule. Indeed, the Police Board’s contrary position, that the plain text of Rule 2.04(a) requires in-person attendance by the employee at mediation because it admits of no other reading, and that Rule 2.04(g) merely states a representative does not have to be present, is untenable because it would create an inconsistency between subsection (a) and subsections (f) and (g), rather than read them in harmony. That some of the practical problems with an in-person attendance requirement identified by the Office may not have occurred in appellants’ particular cases is of no moment.
Because Congress has not explicitly denied an employee the opportunity to appear through a representative at counseling or mediation and has expressly authorized the Office to issue procedural rules, and because the Office’s interpretation that its Rules 2.04(a) and (g) do not require in-person attendance by the employee at mediation is not “plainly erroneous or inconsistent with the [rules],” Auer, 519 U.S. at 461, we hold that neither the CAA nor the Office’s procedural rules require the employee’s in-person attendance at counseling or mediation.

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IV.
The question remains whether, as appellants contend, the CAA required the district court to accept the Office’s end-ofcounseling and end-of mediation notices as demonstrating that the officers “completed counseling under section 1402 of this title and mediation under 1403 of this title” as section 1408(a) requires. Again we look to the text and structure of the CAA. King, 552 U.S. at 218, 221.
Section 1403(c) provides: “The Office shall notify in writing the covered employee and the employing office when the mediation period has ended.” By contrast, section 1408(a) grants the court jurisdiction over the civil action of “a covered employee who has completed counseling . . . and mediation.” Id. § 1408(a). Although use of the words “completed” and “mediation,” as opposed to the words “ended” and “period” might suggest that Congress intended the two provisions to refer to different things, see Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006); Russello v. United States, 464 U.S. 16, 23 (1983), the text and the statutory scheme reveal that the different terms reflect the different stages of the process rather than signaling unspecified requirements for “actual mediation,” as the Police Board offers. Despite subtle differences,3 the two
3 Congress used the verb “end” in section 1403(b) in its intransitive form, meaning: “to come to an end.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 381 (10th ed. 1993); see also “End,” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2009). The definition of the transitive verb “complete” is: “1: to bring to an end and especially into a perfected state[, as in] complete a painting[;] 2a: to make whole or perfect[, as in] its song completes the charm of this bird[;] b: to mark the end of[, as in] a rousing chorus completes the show[;] c: to execute, fulfill[, as in]

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terms are quite similar in context, both embracing the idea of an “end” to mediation. Consistent with Congress’s intention to afford the employing office a time-limited opportunity to seek informal resolution of an employee’s claim, Congress’s use of the word “completed” in section 1408(a) must therefore refer to the employee’s acts of timely requesting counseling and mediation, not thwarting mediation by failing to give the employing office notice of the claim upon request, and receiving notice of the end of mediation before filing suit. This interpretation of “completed” is consistent with the dictionary definitions of the term and also with the statutory scheme, which, as explained below, provides for strict confidentiality of the mediation process and vests in the Office, subject to strict time limits, broad authority to tailor the content of counseling and mediation to the circumstances of individual cases.
Congress’s inclusion of provisions requiring the Office to issue written notices of the end of counseling and the end of mediation must be read in light of the provisions on confidentiality. Those provisions, sections 1416(a) and (b), provide that counseling and mediation, respectively, “shall be strictly confidential.” 2 U.S.C. § 1416(a) & (b); see also OC Rules 2.03(e), 2.04(j), 2.10. A separate provision protects the appointed mediator from “subpoena or any other compulsory process with respect to the same matter.” 2 U.S.C. § 1403(d). By so providing, Congress understood what courts and commentators acknowledge, namely, that confidentiality plays a key role in the informal resolution of disputes, see, e.g., Beazer
complete a contract.” WEBSTER’S at 235; see also “Complete,” THE AMERICAN HERITAGE DICTIONARY. Being transitive (“a covered employee who has completed”), the word “complete” implies some action on the part of the employee, whereas the mediation period “ends” when the time period elapses, regardless of any action taken by any party.

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East, Inc. v. Mead Group, 412 F.3d 429, 435 (3d Cir. 2005); see also Local 808 v. Nat’l Mediation Bd., 888 F.2d 1428, 1435-36 (D.C. Cir. 1989) (citing P. PRASOW & E. PETERS, ARBITRATION AND COLLECTIVE BARGAINING 234 (1970)); see generally KOVACH at 263-66. In light of these confidentiality provisions, Congress’s provision for end of counseling and mediation notices must be understood as a mechanism to eliminate potential ambiguities about when an employee completed those processes and when the time begins to run for the employee to make an election pursuant to section 1404. That counseling and mediation remain strictly confidential indicates Congress’s intent that the end of mediation notice serves to demonstrate an employee’s completion of the process and to commence the formal complaint proceedings contemplated by section 1404, which begin anew the complaint and response dialogue between the parties.
For the jurisdictional requirement in section 1408(a) to mean more could create a catch-22 for the employee who, having received a notice of the end of mediation, timely files a complaint pursuant to section 1404 only to have his or her complaint dismissed for failure to have successfully “completed” mediation in the eyes of the court. Nothing in the CAA suggests Congress intended courts to engage in a mini-trial on the content of the counseling and mediation sessions, an inquiry that would be fraught with problems. Indeed, the colloquy during oral argument with Police Board counsel demonstrates why. Counsel suggested that the district court should determine whether claims were “actually mediated,” but could neither identify what exactly an employee would need to do in order to meet the “actual mediation” standard, nor explain how much mediation would be enough. See Oral Arg. 33:2836:35. Moreover, unlike agency exhaustion in other contexts, the purposes of counseling and mediation are not to compile a record for judicial review but instead simply to afford the

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employee and the employing office an opportunity to explore and possibly resolve the employee’s claims informally. As such, Congress expressly limited the ability of the court to review the substance of compliance with these processes, 2 U.S.C. § 1403(d).
In addition to the confidentiality provisions, Congress’s inclusion of strict time limits for counseling and mediation reflects an intention to eliminate undue barriers to access to the courts for resolution of the employee’s substantive claims. Those provisions, sections 1402(b) and 1403(c), spell out rather short periods of time for counseling and mediation. See 2 U.S.C. §§ 1402(b), 1403(c).4 Additionally, section 1402(b) bars the possibility of extending the counseling period, in fact providing that the Office and the employee can agree to reduce it, and section 1403(c) limits extensions of mediation to those instances in which the parties jointly request an extension, thereby
4 Even so, the timetable under the CAA means, in general, that completion of the counseling and mediation will take more than three months before an employee will be in a position to elect further remedies under 2 U.S.C. § 1404:
30 days for counseling + ~5 days for receipt of notice of end of counseling + 15 days after receipt to file for mediation + 30 days of mediation + ~5 days for receipt of notice of end of mediation + 30 days thereafter until an employee can file a suit = ~115 days, or almost four months.
Combined with the 180-day limit for requesting counseling after an alleged unlawful action and assuming an employee took the full 90 days after receipt of an end of mediation notice before filing suit, almost a year could pass before a complaint was filed in the district court.

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permitting the employee a right to refuse to extend the mediation period. These time limits reflect an intention to allow disputes to move forward quickly, while at the same time affording the employing office an opportunity to pursue the informal resolution of disputes before they proceed to more formal channels.
The Police Board’s contrary interpretation of the statutory scheme would overlook these strict time limits and leave the employee to wait until his claim is “actually mediated,” Appellee’s Br. 38, 44, or be deemed to have “refus[ed] to mediate [his] claim[ ],” id. at 39. But Congress required the parties’ joint request to extend mediation, 2 U.S.C. § 1403(c), thereby giving each party the prerogative to refuse to agree to an extension and specifying no sanction upon such refusal. Congress’s definition of “mediation” was limited both by the explicit definition in section 1403(b) and the time limit set in section 1403(c). The time limits Congress set evince a determination that a 30-day mediation period would suffice to give the employing office an opportunity — even if ultimately unsuccessful — to consider resolution of its employee’s claims informally. Furthermore, even granting the Police Board’s view that the Office’s issuance of the notices of the end of mediation was merely ministerial does nothing to undermine the role of the notices in ensuring clarity for complaining employees. Receipt of these notices commences the third step of the statutory process, not unlike the right-to-sue letter that the EEOC must issue under Title VII after 180 days of EEOC inaction, 42 U.S.C. § 2000e-5(f)(1).
The Police Board, the employing office here, further overlooks its involvement through its counsel in discussions with the officers and their representatives, as well as the Office’s rejection of the parties’ joint request to extend mediation for three months. It is true that Congress defined “mediation” as

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involving “meetings with the parties,” 2 U.S.C. § 1403(b)(2); see OC Rule 2.04(a), but Congress was also clear that such meetings could occur “with the parties separately or jointly,” id., (in arguing in-person attendance was required, the Police Board’s brief quotes only the former phrase, not the latter. Appellee’s Br. at 45.), and the record shows that officers represented by Attorney Ware, and possibly others, met with the mediators and with counsel for the Police Board. Moreover, the record shows that the Executive Director of the Office determined that mediation should not be extended for the three months the parties had jointly requested at the end of June 2001, unless it was clear after one month’s extension that “the parties are engaged in serious mediation efforts.” Notice of Extension of Mediation (June 29, 2001). Although the Police Board suggests the short time limits provided an equitable ground for extending the mediation period for “actual mediation” of each officer’s claims, such equitable considerations are irrelevant; the court is not reviewing the Office’s refusal to extend the mediation period based on its failure to take such equitable considerations into account. The Police Board’s reference to equitable considerations that could toll the statutory period to allow “actual mediation” reflects a gloss on statutory language that the words chosen by Congress do not support.
The scheme that Congress enacted in the CAA indicates, as this court observed in regard to Title VII, that “Congress contemplated that the exhaustion doctrine would be held within limits consonant with the realities of the statutory scheme,” President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980). “It is not an end in itself; it is a practical and pragmatic doctrine that . . . like other procedural devices, should never be allowed to become so formidable a demand that it obscures the clear congressional purpose of ‘rooting out . . . every vestige of employment discrimination within the federal government.’” Id. at 363 (citation omitted; second ellipsis in original). So, too,

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courts must take care not to construe the CAA in such a manner as to “erect a massive procedural roadblock to access to the courts.” Id. at 362; see McRae v. Librarian of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988) (internal quotations omitted). Here appellants submitted, through their professional association, materials that identified their claims and were deemed by the Office to have requested counseling, and received notices of the end of the counseling period from the Office. Attorney Ware then requested mediation on behalf of the officers he represented, in conformance with OC Rule 2.04(b), and participated in Office processes to engage in mediation, but his clients ultimately concluded, as Congress made clear they could, that they did not wish to extend mediation further. That determination came after the Office had turned down the parties’ joint request to extend mediation, noting that if mediation efforts proved useful after one month, requests for further extensions would be considered favorably. At this juncture, end-of-mediation notices were issued by the Office. Given Congress’s determination to hold itself accountable in the same manner it previously required of the other branches of government, “that wholesome objective would be disserved by requiring in the name of exhaustion more of [such officers] than [they] already [have] done,” Vance, 627 F.2d at 363. We therefore hold that the reference in section 1408(a) to “completed counseling . . . and mediation” means no more than that the employee timely requested counseling and mediation, that the employee did not thwart mediation by failing to give notice of his or her claim to the employing office upon request, that the mandated time periods have expired, and that the employee received end of counseling and mediation notices from the Office.
Finally, we observe that any good faith requirement that may exist for completion of counseling and mediation would present the district court with an opportunity for only a limited

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inquiry. Although courts have recognized circumstances in which a plaintiff so thwarted the administrative process as to preclude judicial relief, see, e.g., Wrenn v. Sec’y, Dep’t of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990); Johnson v. Bergland, 614 F.2d 415, 418 (5th Cir. 1980); Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983); Edwards v. Dep’t of the Army, 708 F.2d 1344 (8th Cir. 1983); Jordan v. United States, 522 F.2d 1128 (8th Cir. 1975), this court has recognized that those cases involved extreme situations in which “the complainants rest[ed] on vague allegations of discrimination and refuse[d] to provide any details or dates, thus completely frustrating the agencies’ ability to investigate complaints.” Wilson v. Peña, 79 F.3d 154, 165 (D.C. Cir. 1996). Nothing in the record described herein suggests appellants did not proceed in good faith.
Accordingly, we hold that under the CAA, counseling and mediation are jurisdictional requirements, with the consequence that the doctrine of vicarious exhaustion does not apply. We also hold that the CAA does not require the officers to attend counseling and mediation in person. Finally, because the receipt of end of mediation notices documented completion of counseling and mediation under section 1408(a), we remand the cases to the district court.5

5 On remand, the district court shall determine which officers made timely requests under sections 1402 and 1403 and provided notices of their claims upon request, and which officers received end of mediation notices and made timely elections pursuant to section 1404.

 
 Case 1:01-cv-02221-EGS Document 376 Filed 12/14/12 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHARON BLACKMON-MALLOY, et al., :

:

Plaintiffs,

:

:

v.

:

:

UNITED STATES CAPITOL POLICE, :

:

Defendant.

:

:

Civil Action No. 01-2221 (EGS/JMF)

REPORT AND RECOMMENDATION

This case was referred to me by Judge Sullivan for a Report and Recommendation regarding Defendant’s Motion to Dismiss for Lack of Jurisdiction [#298].1

This case has been before this Court and the D.C. Circuit Court of Appeals for over

eleven years, yet remains at the jurisdictional stage. The factual and procedural background of

this case is quite lengthy, and has been summarized in prior proceedings. I will begin by

reviewing briefly the proceedings that lead to the instant motion to dismiss, and the concomitant

burden on the plaintiffs to show that their claims are properly before this Court, before they can

be heard on the merits.

BACKGROUND

I. History of the Case

The plaintiffs are all officers with the United States Capitol Police, each of whom claim

that the Capitol Police Board discriminated against them with respect to assignments,

1 Initial citations to documents in the record will include the name of the document and the document number on ECF. All subsequent citations to that same document will include the document number only.

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promotions, and disciplinary decisions on the basis of the officers’ race. See generally Fourth Amended Complaint [#278] at 1. More specifically, the plaintiffs complain they were “subjected to (1) a racially hostile work environment, and/or (2) race discrimination in promotions, other selections, work assignments, discipline, and termination, and/or (3) retaliation.” Id. at 2-3.
The heart of the defendant’s motion to dismiss is the defendant’s claim that few, if any, of the named plaintiffs exhausted their administrative remedies, as required by the Congressional Accountability Act (“CAA”).2 I previously issued a Report and Recommendation regarding a motion for reconsideration of Judge Sullivan’s dismissal of many of the claims at issue before this court once again. Report and Recommendation [#151]. Appeal was eventually taken from Judge Sullivan’s order on the motion to dismiss, and the D.C. Circuit issued three rulings important to the motion before the Court today: 1) that the exhaustion requirement present in the CAA was jurisdictional; 2) that the doctrine of vicarious exhaustion does not apply to excuse officers’ non-compliance with the CAA’s jurisdictional prerequisites; and 3) that officers were not required to attend counseling or mediation in person for their claims to be deemed exhausted. Blackmon-Malloy v. U.S. Capitol Police, 575 F.3d 699, 699 (D.C. Cir. 2009). The D.C. Circuit then remanded the case to this Court, instructing the Court to determine “which officers made timely requests under sections 1402 and 1403 and provided notices of their claims upon requests, and which officers received end of mediation notices and made timely elections pursuant to section 1404 [of the CAA].” Id. at 714, n.5. In response to the Circuit Court’s instructions, Judge Sullivan ordered the plaintiffs to file another amended complaint—the fourth—pleading
2 The CAA is the only avenue for relief for employees of the legislative branch asserting claims of discrimination. Although employment discrimination claims are normally brought under Title VII of the 1964 Civil Rights Act, those provisions, as enacted, did not apply to employees who work in the legislative branch of the government. In 1996, however, via the CAA, Congress extended certain Title VII protections to legislative branch employees, including within the CAA certain anti-discrimination and anti-retaliation provisions. See 2 U.S.C. §§ 1302, 1311, 1317.
2

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subject matter jurisdiction with specificity, i.e., how and when each named plaintiff exhausted the administrative remedies required by the CAA for each claim. Order [#271]. That complaint was filed on May 10, 2010. [#278]. In response to that complaint, the defendant filed the instant motion to dismiss, claiming that the vast majority of the plaintiffs did not and could not show exhaustion under the CAA, and therefore, the Court lacks jurisdiction to hear the plaintiffs’ claims. II. The CAA Administrative Review Process
The CAA requires a four step process before an employee-plaintiff may file suit in federal court. First, the employee must request counseling from the Office of Compliance within 180 days of the alleged violation of the employee’s rights. 2 U.S.C. § 1402(a).3 The counseling period lasts 30 days, beginning on the date the request for counseling is received. 2 U.S.C. § 1402(b). Once the counseling period has concluded, and the employee is notified in writing, the employee has 15 days to request mediation with the Office of Compliance. 2 U.S.C. § 1403(b). At the end of the mediation, which lasts for 30 days, the employee may bring her claims either in federal court or before a board convened by the Office of Compliance. 2 U.S.C. §§ 1404, 1408(a). The complaint must be filed with the court or the Office of Compliance no sooner than 30 days but no later than 90 days after receiving notification of the end of mediation. 2 U.S.C. § 1404.
Strict adherence to this administrative review process is required by the CAA before any action may be commenced in federal court. 2 U.S.C. § 1361(d). Indeed, as held by the D.C. Circuit, exhaustion of these administrative remedies is a jurisdictional issue; without exhaustion, the courts have no authority to hear the employee’s claims. See 2 U.S.C. § 1408(a) (“The district
3 All references to the United States Code are to the electronic versions found on Westlaw or LexisNexis.
3

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courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title.”); Blackmon-Malloy, 575 F.3d at 705-06 (“The conclusion that Congress intended the three-step process to be jurisdictional is consistent with the statutory scheme that Congress established to handle discrimination (and other) claims by its employees.”).
The CAA administrative regime and the Office of Compliance were created to provide employees of the legislative branch “an opportunity to settle claims prior to commencement of formal administrative or judicial proceedings.” Blackmon-Malloy, 575 F.3d at 706. This purpose underlies the various administrative steps plaintiffs must go through before they can bring suit. By giving notice of the claim to the employer and participating in the counseling and mediation process, the parties can attempt to reach resolution before initiating the type of protracted, resource-intensive litigation present throughout this case.
DISCUSSION I. Standard of Review
On a motion to dismiss for lack of jurisdiction, the plaintiff bears the burden of proving, by a preponderance of the evidence, that jurisdiction is proper over each claim asserted. Fed. R. Civ. Pro. 12(b)(1); Auburn Reg’l Med. Ctr. v. Sebelius, 686 F. Supp. 2d 55, 61 (D.D.C. 2010) (citing U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)); Bennett v. Ridge, 321 F. Supp. 2d 49, 51 (D.D.C. 2004); Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000). Even though a motion to dismiss is not a motion on the merits, because the plaintiff bears the burden of proof, her “factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to
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state a claim.” Bennet, 321 F. Supp. 2d at 52 (citing Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001)); Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 87 (D.D.C. 2010).
In determining whether the court has subject matter jurisdiction, the court “is not limited to the allegations contained in the complaint.” Johnson v. Holder, 598 F. Supp. 2d 50, 54 (D.D.C. 2009). Rather, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197-98 (D.C. Cir. 1992).
The D.C. Circuit, in reviewing a prior opinion in this case, explicitly held that because administrative exhaustion is a jurisdictional prerequisite to being heard in federal court, the Court is “not empowered to apply the equitable doctrine of vicarious exhaustion to excuse compliance with [the CAA’s] requirements.” Blackmon-Malloy, 575 F.3d at 706. In other words, each individual plaintiff must plead exhaustion as to each individual claim with the required specificity in order to be heard on the merits. Plaintiffs may not survive a motion to dismiss by “piggy backing” off other claims or plaintiffs to gain jurisdiction; a plaintiff does not gain jurisdiction on a non-exhausted claim by virtue of bringing a properly exhausted one, nor can one plaintiff establish jurisdiction on a non-exhausted claim simply by virtue of its similarity to another plaintiff’s claim that was properly exhausted. II. Analysis
As noted above, Judge Sullivan ordered the plaintiffs to “file a new complaint pleading subject matter jurisdiction as set forth in the D.C. Circuit’s decision.” [#271] at 2. The defendant argues in its motion to dismiss that the Fourth Amended Complaint is insufficient for a variety of
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reasons, including: 1) that for many plaintiffs and their claims, no factual support for the claim was put forth; 2) that many of the claims were disallowed under prior rulings in this case, and those holdings were not disrupted on appeal; and, perhaps most importantly, 3) that the latest complaint is filled with cursory or conclusory statements regarding exhaustion that fail to include any dates or factual support (i.e., “The plaintiffs requested counseling and received End of Mediation Notices from the Congress’s Office of Compliance as a result of these discriminatory experiences,” [#278] at 3; “All the Plaintiffs in this category, among others, made timely requests for counseling . . . to the Office of Compliance; provided the Office with any and all information requested, received End of Mediation Notices; and timely filed in the U.S. District Court within 90 days thereafter.” [#278] at 8, 9, 10, 13). See Memorandum in Support of Defendant’s Motion to Dismiss the Fourth Amended Complaint [#299] at 2.
Defendant’s argument has merit. Plaintiffs often state that they have exhausted their claims, without giving any of the information necessary for the Court to determine whether or not that is true, a point previously made by Judge Sullivan.
Additionally, Judge Sullivan criticized the plaintiffs for filing pleadings that are not in accordance with this Court’s orders, or which assert claims that were already dismissed as not viable. See Minute Order of February 15, 2008 (“Plaintiffs are cautioned that the Amended Complaint must adhere strictly to this Court's previous Orders and the Report and Recommendation and Supplemental Report issued by Magistrate Judge Facciola and adopted by Judge Sullivan in this case; to the extent the Amended Complaint attempts to incorporate new claims, or includes claims that have previously been dismissed by the Court, the Court will impose sanctions and/or dismiss the Amended Complaint forthwith.”). Unfortunately, plaintiffs’ fourth bite at the apple is plagued with many of the same errors and lack of support as prior
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complaints. As described in detail below, I am left with no other choice but to recommend once again that the vast majority of the claims be dismissed.
A. Previously Dismissed Claims and Plaintiffs A few categories of claims may be disposed of at the outset. First, the plaintiffs assert, once again, a discrimination claim on behalf of black officers “who would otherwise have participated in the promotion process but concluded that participation was futile based on the racist history of the promotion process.” [#278] at 21. However, in a prior ruling, Judge Sullivan held that only those who actually participated in the 2000 promotional process have potentially viable claims for non-promotion, because the participation opt-in date for the 2000 Sergeant’s and Lieutenant’s exam was more than 180 days before any of the plaintiffs began the CAA administrative review process. Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp. 2d 97, 110-12 (D.D.C. 2004) (affirmed in part, BlackmonMalloy v. U.S. Capitol Police, 575 F.3d 699, 699 (D.C. Cir. 2009)) . That holding was neither addressed nor disturbed on appeal, and therefore must stand. Thus, I recommend that all claims falling under this category, listed alphabetically by officer in Exhibit 9 to the Fourth Amended Complaint, be dismissed with prejudice for lack of jurisdiction.4 Second, the plaintiffs continue to assert disparate impact claims – listed in Exhibits 4 and 5 – which were, like the futility argument described above, specifically disallowed by Judge Sullivan’s previous ruling. Blackmon-Malloy, 338 F. Supp. 2d at 112.5 The disparate impact
4 For example, Kendrick Young is listed in the Fourth Amended Complaint only in Exhibit 9. [#278-9]. This plaintiff, therefore, should be dismissed with prejudice, as no other claim is put forth. 5 “It is clear the plaintiffs have not alleged that the ‘excessively subjective’ system had a disparate impact on African Americans within 180 days of the first request for counseling. Plaintiffs have not alleged that the 2000 Sergeant’s or Lieutenant’s promotion process had a disparate impact on African American officers. Plaintiffs have not alleged that an African
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claims were not alleged within 180 days of the first request for counseling, and therefore were
not timely. These claims should also be dismissed with prejudice.
Third, at different points in the case, a number of plaintiffs 1) were voluntarily dismissed
from the case; 2) indicated they wanted to be dismissed; 3) failed to respond to show cause
orders requiring them to assert why they should not be dismissed; or 4) were deemed by both
parties to be out of the case for failure to have properly exhausted their administrative remedies.
See, e.g. Parties’ Joint Report in Response to the Court’s March 8, 2010 Order [#275] at 2-3.
The parties also previously agreed that certain plaintiffs had not properly exhausted their
administrative remedies. Id.
Plaintiffs assert that some of those individuals filed declarations in support of their
opposition to defendant’s motion to dismiss, and therefore, “it is clear that they are no longer
interested in withdrawing from the case.” Plaintiffs’ Memorandum of Points and Authorities in
Opposition to Motion to Dismiss [#331] at 69. However, plaintiffs who are voluntarily
dismissed are not reinstated into a case simply by virtue of filing a new declaration in support of
an opposition to the defendant’s motion. They must instead move to vacate their dismissal from the case.6
American officer was denied a promotion based on the existence of a command discipline or performance notes in his or her personnel file or received unfavorable assignments within 180 days of the first request for counseling. Without a timely request for counseling and mediation, these claims also fail.” Blackmon-Malloy, 338 F. Supp. 2d at 112. 6 “A voluntary dismissal without prejudice results in a tabula rasa. It renders the proceedings null and void and leaves the parties in the same position as if the action had never been prosecuted.” Jorge v. Rumsfeld, 404 F.3d 556, 563 (1st Cir. 2005); Breen v. Peters, 529 F. Supp. 2d 24, 28 (D.D.C. 2008). Moreover, a final order of judgment is not necessary to voluntarily dismiss a plaintiff from a case: “When the plaintiff files a notice of dismissal before service by the adverse party of an answer or of a motion for summary judgment, the dismissal takes effect automatically: the trial judge has no role to play at all.” Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987). This Circuit has also held that voluntary dismissals of plaintiffs and all their claims operate as “adjudications on the merits” and are considered “final judgments”
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Additionally, two plaintiffs—Clinton Bradford and Shafton Adams—were instructed to show cause as to why their claims should not be dismissed with prejudice. Order to Show Cause [#218]. They did not respond. Even though the plaintiffs argue that they should be given a second chance, their claims must be dismissed. The D.C. Circuit’s remand does not amount to an open-season opportunity for all plaintiffs previously dismissed to suddenly re-assert their claims without any regard to prior decisions or inaction in this court. Only certain issues were raised and ruled on by the appellate court, and I do not recommend yielding to the plaintiffs’ assertions that we must begin from scratch, especially when most of Judge Sullivan’s prior rulings had nothing to do with—and were therefore not impacted by—the reasoning and holdings of the D.C. Circuit.
To the extent that the Fourth Amended Complaint asserts claims on behalf of any of plaintiffs previously dismissed voluntarily or who should have been dismissed for failing to respond to a show cause order, I recommend that those claims be denied as well.
As for those plaintiffs who indicated to their class counsel that they wished to withdraw from the case just before the filing of the Fourth Amended Complaint, I recommend that these claimants be dismissed as well. These include 1) Shawn Deneal; 2) Yvonne Dove; 3) Marcus Edwards; 4) Charles Nanton Jr.; 5) Anthony Washington; 6) Jolania White Sharps (Cobbin); and 7) Rodric Myers. [#275] at 3-4.
B. Claims Not Properly Noticed Much of defendant’s motion to dismiss and the plaintiffs’ opposition concerns whether the defendant was sufficiently put “on notice” of each claim by each plaintiff under the CAA.
subject to Rule 60, which requires the dismissed plaintiff to move the court for relief from the previous notice of dismissal. Id.; Fed. R. Civ. P. 60(b). Absent a Rule 60(b) motion, therefore, the court lacks authority to reconsider the claims of a previously dismissed plaintiff.
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For multiple plaintiffs, defendant repeats the same language that the plaintiffs “failed to provide the Capitol Police Board with notice of any of the claims during the administrative process,” Notice of Filing Second Amended Memorandum in Support of Defendant’s Motion to Dismiss the Fourth Amended Complaint [#315-1] at 48, or “failed to provide the Capitol Police Board with any information regarding the factual basis for his claim during the administrative process.” Id. at 74. The defendant believes that because of certain plaintiffs’ failures to identify any factual support showing 1) when the alleged violation occurred; or 2) that their claim was raised at the administrative level at all, they are “unable to show that [they] requested counseling within 180 days of an allegedly discriminatory act.” Id. Indeed, it would appear impossible to determine compliance with the CAA without at least some information about each claim, including its nature and the date when the alleged violation occurred.
Plaintiffs counter this point by asserting that mediation is an “informal process,” and that the parties should not be obligated to “provide every detail of the incidents complained of.” [#331] at 51. Plaintiffs point to Artis v. Bernake, 630 F.3d 1031 (D.C. Cir. 2011), a Title VII case, for support, noting that there, the D.C. Circuit held that a handful of anecdotes of disparate treatment were sufficient to put the Federal Reserve Board on notice of the class’ claims. Id. at 1038. Although this may be true, the jurisdictional pleading requirements in a case brought under the CAA are decidedly different from those in a Title VII action. See Blackmon-Malloy, 575 F.3d at 706 (holding that the CAA’s timely filing requirement, unlike Title VII’s, is jurisdictional, and doctrines of vicarious exhaustion, applicable in Title VII cases, do not apply here). What is true for Title VII, therefore, is not necessarily true for actions brought under the CAA. When timely satisfaction of an administrative regime is jurisdictional, dates and details matter. Plaintiffs who did not provide any details about their claim—including, at a minimum,
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the date of the alleged violation and what the alleged violation was—cannot show that their claims were timely raised and exhausted. Further, plaintiffs cannot rely on the properly noticed claims of their fellow officers in satisfying their own jurisdictional requirements, nor can they simply say “this claim was timely exhausted” without putting forth any evidence showing as much.
Contrary to the plaintiffs’ assertions, therefore, the defendant is not trying to subject the mediation sessions to “re-examination by the court,” [#331] at 55, nor is it challenging the D.C. Circuit’s clear instruction that the court’s evaluation of whether jurisdiction is proper is a “limited inquiry,” Blackmon-Malloy, 575 F.3d at 714. The defendant merely argues that, with hundreds of plaintiffs and many more claims in and out of this case over the last eleven years, there are some claims for which absolutely no information was provided, and in others, the assertions were so general or vague that it is impossible to tell whether the claims were raised and the administrative process exhausted.
It would defeat the purpose of the CAA’s administrative regime if a group of 200+ claimants were deemed to have put the defendant on sufficient notice of their claims merely because their attorney said that “these 150 experienced a racial slur” or that “these 100 were unfairly disciplined” without providing any indication of when those events allegedly occurred. If such blanket statements, and nothing more, constituted “notice” of each claim and timely exhaustion, there would be no point to engaging in counseling or mediation, because the employer would be at a loss to determine what went wrong and how any violations could be remedied.
Plaintiffs counter that, if a claim was not properly identified, or if the exact date of the alleged violation was not put forth, it is because the Office of Compliance did not ask the
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plaintiffs to identify their claims with specificity when the administrative process began. [#331] at 31. For that reason, plaintiffs argue, it would be unfair to require them to now assert specific dates for the alleged acts to show they occurred within 180 days of their request for counseling. Id. This argument also fails. Because the plaintiffs bear the burden of proof with regards to jurisdiction, which includes showing that each claim was timely brought and properly noticed, plaintiffs must be able to show 1) exactly when the event occurred; and 2) that all subsequent steps of the administrative process were satisfied. Even if the Office of Compliance did not specifically ask at that time, plaintiffs must be able to show timeliness if they want their claims heard in federal court, especially given the strict instructions of both the D.C. Circuit and Judge Sullivan. Conclusory statements that “all plaintiffs exhausted in a timely fashion” are simply insufficient to meet the standards imposed by the CAA, and any claim without documentation actually showing timely exhaustion does not meet this requirement.
As the defendant correctly points out, hostile work environment claims are “different in kind” from discrimination claims brought in response to discrete acts. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Rather than occurring on a specific date, these claims are about pervasive conduct over a period of time. So long as an officer sought counseling within 180 days of any act that contributed to the hostile work environment claim, that claim would be timely. Id. at 117. That does not mean, however, that other claims based on discrete acts, previously held to be time-barred or non-exhausted, should be permitted to proceed merely because they were “recast,” as defendant puts it, as hostile work environment claims in the latest complaint. [#315-1] at 23. Unless raised as such at the administrative level, and without any evidence affirming exhaustion of that specific claim, any hostile work environment
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claims now asserted by the plaintiffs cannot possibly be considered in a manner consistent with the court of appeals’ determination that the exhaustion requirements are jurisdictional.
With regards to the original plaintiffs who proceeded to counseling in April 2001, there appears to be a genuine factual dispute whether Mr. Ware, their attorney at the time, raised the hostile work environment claim on each of their behalf. See [#331] at 57-54; [#365] at 9-10. Plaintiffs assert that, because the administrative complaint “provided details for a few Plaintiffs and general information as to the issues raised by almost all of the Officers . . . the [Capitol Police Board] was put on notice that a hostile work environment . . . was an issue for all Plaintiffs . . . and the fact that Attorney Ware did not give dates or specific incidents that contributed to such an environment does not prevent his statement from constituting adequate notice for the purpose of mediation.” [#331] at 58-59.
The defendant, for its part, states that Mr. Ware did not assert this claim at counseling or in mediation, nor did he note in his prior declaration filed with this Court that the hostile work environment claim was raised on behalf of all plaintiffs. Reply in Support of Defendant’s Motion to Dismiss the Fourth Amended Complaint [#365] at 9-10. The defendant also points out that in the numerous other proceedings conducted in this case over the last ten years, never before have all the plaintiffs asserted, or purported to assert, a hostile work environment claim. Id. at 11.
Although it is true that many of the discrete acts alleged by the plaintiffs could, in the aggregate, support a hostile work environment claim, that analysis is not proper at this juncture. Such an inquiry is better left to either a 12(b)(6) motion or to a motion for summary judgment under Rule 56. Our only concern at the moment is whether the hostile work environment claims were previously raised, and if so, by whom. Only those who asserted the claim in the administrative process—and can demonstrate such an assertion—may proceed. This means that,
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in order to proceed, individual plaintiffs must have raised information sufficient to put the defendant on notice of his or her hostile work environment claim during the administrative process. A blanket statement from the attorney that “all plaintiffs raise this claim” is no more sufficient than the blanket claims of exhaustion, present throughout the complaint, which I criticized above.
In the remainder of this report and recommendation, I will highlight those plaintiffs who have sufficiently demonstrated that their hostile work environment claims were properly raised during the administrative process. Apart from those few, I recommend that all others claims in this category be dismissed with prejudice for failing to show that their claim was properly exhausted.7
C. Remaining Claims and Plaintiffs This brings us to the remaining plaintiffs. In my previous Report and Recommendation [#151], I reviewed the documents submitted by plaintiffs and concluded that the vast majority of their claims should be dismissed with prejudice. I included four charts with my Report – Appendix A, listing the claims represented to be exhausted by plaintiffs’ counsel; Appendix B, listing all claims not supported by evidence of exhaustion and needing to be dismissed with prejudice; Appendix C, listing those claims from Appendix A that should be dismissed without prejudice because they needed supplemental support; and Appendix D, aggregating only the presently viable claims. [#151-1, 2, 3, 4]. Appendix D showed that only eight plaintiffs had exhausted administrative remedies on at least one of their claims: 1) Shafton Adams; 2) Sharon Blackmon-Malloy; 3) Clinton Bradford; 4) Duvall Phelps; 5) Vernier Riggs; 6) Regina BoldenWhitaker; 7) Arnold Fields; and 8) Frank Adams. [#151] at 25. The defendant concedes that
7 The “blanket statement” approach is taken with regards to many other claims as well. The same reasoning holds true for those claims, as discussed in Part C, infra.
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many of these plaintiffs have exhausted administrative remedies on at least one claim. See [#365] at 23-26. I will discuss each of those plaintiffs in more detail below.
On appeal, the D.C. Circuit overruled this Court’s previous determination that the officers must have participated in counseling or mediation in person, rather than via a representative, in order to exhaust those remedies. Blackmon-Malloy, 575 F.3d at 710. To the extent that I recommended that claims or claimants be dismissed with prejudice solely on the grounds of failing to appear in person for counseling or mediation, the D.C. Circuit’s opinion makes such claims and claimants viable once again. For example, I initially recommended that plaintiff Richard Webb’s discrimination and hostile work environment claims be dismissed because “Officer Webb did not appear personally at any mediation sessions related to those claims.” [#151] at 25. As that holding is no longer good law, Officer Webb should not be precluded from bringing his claim only on this ground.
As the defendant correctly points out, however, some of these claims are not asserted in the Fourth Amended Complaint, and if they are, the assertion is too cursory or general to glean whether administrative remedies were timely exhausted. Throughout the complaint, for each category of claims, the plaintiffs put forth individual narratives of some officers, followed by an exhibit listing all of the officers asserting that claim. I am inclined to agree with the defendant that this approach fails in two respects: 1) it does not follow the strict instructions of the Court of Appeals or Judge Sullivan that each claim for each plaintiff must be stated with specificity, and must include the relevant dates and timeliness under the CAA; and 2) it provides no factual support upon which any reasonable court could determine whether a claim was properly exhausted.
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The instruction from the Court of Appeals was clear. Merely asserting that “this is what happened to X, and it happened to A, B, C, and D, too” does not alert either the defendant or the Court to the information necessary to determine whether A, B, C and D made a timely complaint. The merits cannot be reached without knowing 1) when the alleged incident occurred; 2) whether it was raised with specificity to the Office of Compliance in a timely fashion; and 3) whether the rest of the administrative review process was timely completed. Instead of pleading the foregoing for each claim brought by each officer, as they were instructed to do, and as the defendant was able to do in its voluminous motion to dismiss, the plaintiffs left the brunt of this work to the Court.
After a review of all the documentation submitted – both for the original motion to dismiss, and the instant one – I must conclude, once again, that the vast majority of the plaintiffs are unable to satisfy their burden for each of their claims, for at least one of the following reasons: 1) they did not timely exhaust at least one step of the administrative process; or 2) they did not provide adequate documentation showing that, for each claim, they exhausted administrative remedies timely and properly.
I will proceed much as I did in my previous report in this case. Below, I will discuss some of the more complicated cases in detail, highlighting my recommendations as to which claims should and should not proceed. I will also raise issues resulting from the parties’ inaccurate and often unnecessarily confusing pleadings, where such issues result in a need for clarification. Any plaintiffs not discussed in the following paragraphs should be dismissed outright because absolutely no evidence was submitted on their behalf showing 1) that they properly raised their claims in the administrative process; 2) that they exhausted that process; and
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3) that they timely proceeded to federal court, in either Civil Action No. 01-2221 or one of the consolidated cases.
Finally, in Appendix B at the end of this report, there is a list summarizing which plaintiffs and claims I recommend be allowed to go forward. Conversely, I recommend dismissal of all claims and plaintiffs not present on this list.
1. Frank Adams The defendant concedes that Lt. Adams has at least one viable claim for discrimination. [#365] at 25. Lt. Adams originally alleged 57 different incidents spanning the period between November 30, 1994 and July 1, 2004. [#151] at 8-9. Many of those claims were dismissed as untimely, as a request for counseling was not submitted within 180 days of the alleged violation. Id. I allowed 33 of those claims to go forward. Id.; see also [#151-1] at 1. I recommend that the court maintain jurisdiction over those actions that survived in my previous Report and Recommendation. The defendant previously conceded jurisdiction for Lt. Adams’s hostile work environment and adverse actions claims filed in the lead case. [#151] at 9. Defendant also concedes, via its reply to plaintiffs’ opposition to the motion to dismiss, that Adams “appears timely for his non-selection to John Hopkins PELP program (August 28, 2003), non-selection to a management college (September 11, 2003), non-selection to the FBI Academy (October 27, 2003), threat of transfer (November 3, 2003), and involuntary transfer (November 6, 2003)” claims, as well as his non-selection to Captain claim dated Nov. 24, 2005. [#365] at 30. Those
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claims, asserted in Civil Action Nos. 04-0943 and 06-0653, respectively, should therefore go forward.8
2. Shafton Adams The pleadings and briefings surrounding this plaintiff are confusing, to say the least. I
previously held that Special Agent Adams’ hostile work environment claim could go forward;
this was the only claim asserted on behalf of this plaintiff. [#151] at 11-12. However, this claim was not re-asserted in the current complaint.9 In the Fourth Amended Complaint, Special Agent Adams only asserts claims for racist actions and retaliation.10 [#278-3, 10]. Neither of these two
claims is described in any detail in the new complaint, making it impossible to determine when
they occurred and if they were raised at the administrative level.
Moreover, the defendant’s briefings in the motion to dismiss appear to contradict one
another. In the brief in support of the motion, the defendant points out that Special Agent Adams
failed to respond to a show cause order, issued April 17, 2008, which noted that failure to
respond would result in a dismissal of his claim. [#218] at 1. The defendant claims this is
grounds to dismiss all of Special Agent Adams’ claims. Yet, in its reply brief to the motion to
dismiss, the defendant 1) asserts that Special Agent Adams “has not shown that he is timely for
his non-selection for the criminal investigatory and intelligence investigator positions,” yet 2)
8 These claims were previously dismissed without prejudice “until such evidence is provided” establishing exhaustion. [#151] at 10. Although no certification of compliance was submitted from the Office of Compliance certification, the defendant concedes jurisdiction, so these claims should survive. 9 The Court finds it curious that Special Agent Adams’ name is absent from the list of names in Exhibit 1. Although it appears that almost all of the remaining plaintiffs are now asserting hostile work environment claims via this exhibit, Special Agent Adams, one of the few plaintiffs previously held to have a viable claim in this area, is absent from the list. 10 Special Agent Adams is also listed on Exhibit 9, but for reasons stated above, this claim should fail. The retaliation claim appears to be for discipline for bringing his child to work. [#365-2] at 41.
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includes him on a list of plaintiffs who have satisfied the jurisdictional requirements for at least one claim. [#365-3] at 1. As for Special Agent Adams’ other claims, no documentation was submitted with the Fourth Amended Complaint or plaintiffs’ opposition to the motion to dismiss that affirmatively shows exhaustion.
It is impossible on this record to determine what claim is being asserted, whether it was exhausted, and whether jurisdiction is conceded for that claim. I will therefore order the following before making a final recommendation to Judge Sullivan on this plaintiff: Special Agent Adams will have ten days from the date of this opinion within which to state as clearly as possible what claim(s) he is asserting and why he believes they are exhausted in accordance with the principles articulated in this Report and Recommendation. Defendant will have ten days to respond, and at that point, the Court will determine what (if any) claims this plaintiff may assert.
3. Sharon Blackmon-Malloy Defendant concedes that Lt. Blackmon-Malloy exhausted two claims for discrimination – one stemming from receipt of a CP-550 performance note in March 2001, and another for receipt of five performance notes for an incident occurring in February, 2001. [#315-1] at 294. These claims are described in the complaint at ¶ 70. It also appears that then-Sgt. Blackmon-Malloy exhausted her administrative remedies with regards to her retaliation claim for non-promotion from the 2003 lieutenant promotion exam, asserted in Civil Action No. 04-0320, and the defendant concedes as much in its reply brief. [#365] at 30. Finally, defendant concedes that Lt. Blackmon-Malloy’s claim of retaliatory exposure to second-hand smoke, asserted in Civil Action No. 02-1859, is timely. Id. I therefore recommend that these claims go forward.
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Although Lt. Blackmon-Malloy is listed on numerous other exhibits to the complaint, no other circumstances or proof of exhaustion is offered on those claims other than in general terms. I must therefore recommend that any additional claims be dismissed.
4. Regina Bolden-Whitaker I previously held that Officer Bolden-Whitaker had exhausted her administrative remedies on two claims – one for retaliation for refusing to wear body armor, which appeared in the original case, Civil Action No. 01-2221, and another unspecified claim of retaliation brought under Civil Action No. 03-2644, which I now understand to be retaliation for refusing to sign a deputation form. See [#151-4]; [#365] at 24. The defendant concedes that the retaliation for refusing to sign a deputation form claim has been adequately exhausted. [#365] at 31. Details of these claims are absent from the body of the Fourth Amended Complaint, although previously elaborated-upon allegations are “incorporated by reference.” [#278] at 29. Bolden-Whitaker’s name is listed in Exhibits 1, 2, 3, 4, and 10, but no support is given to show these claims were raised at the administrative level and properly exhausted. I therefore recommend that any non-retaliation claim asserted by Bolden-Whitaker be dismissed. As to the body armor claim raised in Civil Action No. 01-2221, defendant now claims Bolden-Whitaker could not possibly have exhausted her administrative remedies, because that case was filed the same day she received her end of counseling notice – October 29, 2001. [#365] at 24. Plaintiffs, in their opposition brief, also note that Bolden-Whitaker “requested counseling at the OC in September 2001” for the body armor claim. [#331] at 47. The defendant is correct in its assertion that, if counseling was requested in September 2001, Bolden-Whitaker would not have exhausted her administrative remedies until December at the earliest, given that she would need to 1) receive her end of counseling notice; 2) proceed with mediation; and 3)
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receive an end of mediation notice before bringing her claim in court. [#365] at 24. Indeed, in my previous recommendation, I noted that mediation concluded December 6, 2001 – a month and a half after the complaint in Civil Action No. 01-2221 was filed. [#151-4] at 2.
In the Title VII context, “the Circuit Court has held . . . where a plaintiff fails to completely exhaust her administrative remedies prior to filing suit, but exhausts them after filing and before dismissal, the Court should excuse the plaintiff's prior failure to exhaust.” Holmes v. PHI Serv. Co., 437 F. Supp. 2d 110, 123 (D.D.C. 2006) (citing Williams v. Wash. Met. Area Transit Auth., 721 F. 2d 1412 (D.C. Cir. 1993)). “Whether a plaintiff has cured her failure to exhaust administrative remedies prior to bringing a civil action by exhausting those remedies after filing her complaint depends on whether the exhaustion requirement at issue imposes a jurisdictional or non-jurisdictional barrier.” Holmes, 437 F. Supp. 2d at 118-19. As I previously explained, Title VII differs from the CAA in that the D.C. Circuit has explicitly held that exhaustion under the CAA is a jurisdictional prerequisite to bringing a suit in federal court. Therefore, although a failure to exhaust before filing a Title VII suit may be cured by subsequent exhaustion, this is not the case under the CAA. “If a particular exhaustion requirement constitutes a jurisdictional prerequisite to suit, the Court may not excuse its failure.” Id. (citing Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C. Cir. 2004). I therefore recommend that Officer Bolden-Whitaker’s body armor claim be dismissed.
5. Clinton Bradford In the Fourth Amended Complaint, Officer Bradford is listed in Exhibits 1, 3, 4, 5, 10 and 11, but not in the body of the complaint. [#278-1, 2, 3, 4, 5, 10, 11]. Additionally, a declaration by Officer Bradford was filed along with the plaintiffs’ opposition to the motion to dismiss, wherein he asserts that he was discriminated against by not being selected for a K-9 position and
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subjected to a racially discriminatory statement regarding the reason for denial. [#331-6] at 3940. Officer Bradford alleges that he participated in the counseling and mediation process under the lead case, Civil Action No. 01-2221. Id. No other facts are alleged with regards to this plaintiff and no documentation from the Office of Compliance was submitted.
I originally held that enough evidence of exhaustion was produced to allow Officer Bradford’s claims of non-promotion and hostile work environment to go forward. [#151] at 16. However, on April 17, 2008, Judge Sullivan issued a show cause order, indicating that Officer Bradford wished to have his claims dismissed and requiring him to respond and show cause why that should not occur. [#218]. Judge Sullivan noted that failure to respond would result in the dismissal of his claims. Id. Plaintiff Bradford failed to respond in time. Accordingly, these claims should be dismissed in conformance with Judge Sullivan’s order.
6. Tyrone Brooks This plaintiff appears in the Fourth Amended Complaint only under Exhibit 9, a list of individuals claiming that participation in the promotion process was futile. Yet, his name also appears in the list of plaintiffs, provided to this court, whom the parties agreed had properly exhausted their claims. [#275] at 1. Further, in its reply brief, the defendant asserts that Officer Brooks may go forward on his claim for retaliation with respect to the 2002 Sergeant promotion process, brought in federal court under Civil Action No. 04-320. [#365] at 26. Officer Brooks is not, however, listed in the corresponding exhibit for this claim in the Fourth Amended Complaint. [#278-7]. For the reasons described above, the claim that he should be excused from exhausting his administrative remedies because doing so would have been futile must fail. Supra at 7. As for
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the retaliation claim, I recommend that that this claim be allowed to proceed because the defendant appears to concede jurisdiction.
7. Sandra Brown-James In the Fourth Amended Complaint, Sandra Brown-James is listed under exhibits claiming hostile work environment, racist actions, disparate treatment, and non-promotion with respect to the 2000 Sergeant’s exam. [#278-1, 3, 5, 7]. She is also listed on the joint status report as a plaintiff whom the parties agree properly exhausted her claims. [#275] at 1-2. This plaintiff presents a peculiar problem, however, which is raised with a handful of other plaintiffs, discussed below. Despite its concession in the parties’ joint submission just one month before the Fourth Amended Complaint was filed, that jurisdiction over this plaintiff was appropriate, defendant later asserted that this plaintiff voluntarily dismissed her discrimination claims in 2008, and that those claims are no longer before the Court. [#315-1] at 75. Apart from listing her name in various exhibits, plaintiffs fail to provide any other information about her claims. A certification from the Office of Compliance was submitted along with the plaintiff’s opposition memorandum, indicating that administrative remedies were exhausted for Case No. 03-CP-82, but it is unclear which claims were raised during that administrative review. [#331-5]. Given all this confusion, I must seek clarification from the parties as to which claim – if any – was properly exhausted in 03-CP-82. If there is a claim that was properly exhausted, I find it strange that the defendant would claim that this plaintiff was previously dismissed, and therefore jurisdiction over any of her claims is improper, while at the same time submitting her name on a list of agreed upon plaintiffs who may proceed. Clarification on that point is also necessary before any final action is taken. The parties will file jointly a praecipe indicating
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whether they agree as to what claim was properly exhausted in 03-CP-82. If they cannot agree, plaintiffs will file a statement so indicating within ten days of the issuance of this Report and Recommendation, and defendant may respond thereto ten days thereafter. At that time, I will make my final recommendation on this plaintiff to Judge Sullivan.
8. Arnold Fields I previously found that this plaintiff exhausted his claims in the consolidated cases, Civil Action Nos. 02-1346, 03-1505, and 03-2644, for hostile work environment and retaliation. [#151] at 17; [#151-4] at 2; [#331] at 29. Fields is also listed in the parties’ joint status report as a plaintiff who may proceed with at least some of his claims. [#275]. In its motion to dismiss, the defendant asserts that any claim made in Civil Action No. 01-2221 is untimely because the only events discussed during the administrative review under that case occurred more than 180 days before counseling was sought. [#315-1] at 106. Because I previously found that exhaustion was proper for Fields’ claims in Civil Action Nos. 02-1346, 03-1505 and 03-2644, I recommend that those claims for retaliation and hostile work environment be allowed to proceed.11 Any other claim purportedly asserted by Fields in the Fourth Amended Complaint, by virtue of the inclusion of his name in various exhibits, should be dismissed, as no evidence was provided showing those claims were properly exhausted. This means that Fields should be able to go forward with his claims for hostile work environment and retaliation, but not discrimination.
11 Defendant also concedes that the jurisdictional burden was satisfied for specific claims of retaliation related to Officer Fields’ 2002 performance evaluation and the “Family Friendly Leave investigation.” [#365-4] at 8. Assuming that these are the same allegations as in Civil Action Nos. 02-1346, 03-1505, and 03-2644, I agree that they should proceed.
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9. Gary Goines In the Fourth Amended Complaint, Goines is only listed in various exhibits. [#278-1, 2, 3, 4, 7, 9]. No supporting facts are alleged elsewhere in the complaint. The defendant contests that Goines provided notice during the mediation period only for claims that were untimely, in that they occurred more than 180 days before the request for counseling was made. [#315-1] at 114. In Civil Action No. 04-0320, Goines alleged discrimination with respect to the Sergeant promotion process from 2002-2004. [#278] at 27. Documentation was submitted with the plaintiffs’ opposition brief indicating that Goines completed the administrative process for this claim. [#331-5]. Goines is also listed as a plaintiff whom the parties agreed had properly exhausted at least one claim. [#275]. Once again, it is unclear to which claim the parties agreed. However, given that documentation was provided for 03-CP-95, that claim—presumably for discrimination in the promotion system and retaliation—should be allowed to go forward. All other claims should be dismissed for failure to provide adequate documentation of exhaustion.
10. Tammie D. Green Although the parties agreed that this plaintiff could go forward on at least one claim in the 2010 status report, [#275], curiously, this plaintiff appears nowhere in the Fourth Amended Complaint. Both sides address Ms. Green in the motion to dismiss and opposition, but it appears the defendant might have confused Ms. Green with a different plaintiff, Clifford Green. Plaintiffs must not have noticed the error either, as they respond to the motion as if Tammie Green was listed in the complaint. I previously held that Officer Green could not proceed because she failed to appear at mediation in person. [#151] at 18. At that time, Officer Green was proceeding only on a claim of
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discrimination in the 2003 promotion process. Id. at 17. Obviously, given the D.C. Circuit’s ruling, failure to appear in person at mediation is no longer grounds for dismissal. And, even if I am to construe the Fourth Amended Complaint as incorporating all previous claims asserted on behalf of named plaintiffs in the lead case and the consolidated cases, the timeliness of Officer Green’s retaliation claim under Civil Action No. 04-320 is disputed. Officer Green’s declaration states that the end of mediation notice for this claim was issued on November 17, 2003, [#331-1] at 48, which would make the complaint in Civil Action No. 04-320 untimely, as it was filed more than 90 days after the end of mediation notice was served. The Office of Compliance certification, however, states that the end of mediation notice was given on December 5, 2003. [#331-5]. This inconsistency makes it difficult to tell whether or not the district court complaint was timely filed, and therefore, whether jurisdiction is proper.
Given that Officer Green is not listed anywhere in the complaint, I must request that the plaintiff submit clarification, in writing, no later than ten days from the filing of this Report and Recommendation, clarifying what claim(s), if any, Officer Green is asserting. Defendant may respond thereto within 10 days.
11. Ave Maria Harris I previously held that Officer Harris’s claim filed in Civil Action No. 03-2644, for retaliation and hostile work environment “due to the Capitol Police’s investigation and discipline of her for failing to respond to an alarm while on her break,” needed additional support in order to proceed. [#151] at 18-19. In its opposition brief, plaintiffs filed a certificate of compliance for two police board claims, 03-CP-44, and 04-CP-34. [#331-5]. Because the certification forms show exhaustion of her claim in the consolidated case, Civil Action No. 03-2644, and the
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defendant concedes as much in its reply brief, [#365] at 30, I recommend that Officer Harris be allowed to proceed on that claim.
No evidence of exhaustion has been submitted for any claims brought under Civil Action No. 01-2221. Therefore, any claims asserted on behalf of Harris through the Fourth Amended Complaint’s exhibits do not meet the jurisdictional burden. I recommend that those claims be dismissed.
12. Larry Ikard In the lead case, Sergeant Ikard claims he was discriminated against on numerous occasions, including when he was not selected for promotion as a K-9 officer, and when a new dog was adopted and named “Huk.” [#315-1] at 141. The defendant asserts that the K-9 selection process claim was premature, because at the time counseling was requested, promotional decisions were still being made. [#315-1] at 141-42. In support of this argument, the defendant points to Halcomb v. Senate Sergeant at Arms, 209 F. Supp. 2d 175 (D.D.C. 2002), in which the court held that a plaintiff’s retaliation/non-promotion claim was premature because the plaintiff filed for counseling before all promotion decisions were made. In other words, plaintiff attempted to initiate the review process before her claim was ripe. I previously dismissed Sgt. Ikard’s non-promotion claim “in light of counsel’s representation that [Ikard] did not personally attend counseling and mediation sessions in relation” to that claim. [#151] at 19. As that ground for dismissal is no longer valid, I recommend that Sgt. Ikard be permitted to proceed with his non-promotion claim. With respect to Sgt. Ikard’s hostile work environment and/or discrimination claim regarding the Capitol Police Board’s adoption of a black retriever dog and naming it “Huk,” defendant concedes that it was timely exhausted. [#315-1] at 123. This claim is set forth in the
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Fourth Amended Complaint at 5-6, and should go forward. Sgt. Ikard’s retaliation claim, premised on his not being promoted to a K-9 officer, however, was not alleged in the complaint in any detail, and there was no demonstration that administrative remedies were exhausted for this claim. I must, therefore, recommend dismissal of the retaliation claim.
13. John N. Johnson Officer Johnson is listed in Exhibits 3 and 7 of the Fourth Amended Complaint. [#278-3, 7, 9].12 The parties agree that Officer Johnson’s claim of non-selection following the 2000 Sergeant’s exam should go forward. [#315-1] at 156; [#275]. However, as no evidence was submitted to show exhaustion of Officer Johnson’s claim for racist words or actions, I must recommend that it be dismissed.
14. Governor Latson In the Fourth Amended Complaint, Officer Latson asserts discrimination in discipline, listed in Exhibit 4. [#278-4].13 A statement in the body of the complaint also references Officer Latson: “Governor Latson [was] among the Plaintiffs discriminated against in the 2002 promotional process.” [#278] at 20. Officer Latson is not, however, listed in Exhibit 7 or 8, the two exhibits listing all those complaining of non-promotion. To confuse matters more, in their opposition to the instant motion, plaintiffs submitted a compliance certification letter stating that Officer Latson completed the administrative process on December 5, 2003, for claim number 03CP-85. [#331-5]. This appears to be the claim for non-promotion. Why the plaintiffs would submit certification of exhaustion for a claim they do not adequately state in the complaint is confusing. Moreover, Officer Latson is listed among those plaintiffs as to whom the parties
12 Officer Johnson is also listed in Exhibit 9, but for the reasons discussed elsewhere in this opinion, that claim is not viable and should remain dismissed. 13 Governor Latson is also listed in Exhibit 9, but for the reasons discussed elsewhere in this opinion, that claim is not viable and should remain dismissed.
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agree a claim may go forward. [#275]. Given this Court’s authority to look beyond the pleadings themselves to all the information available in the case, Herbert, 974 F.2d at 197-98, I will construe the Fourth Amended Complaint to assert a non-promotion claim on behalf of Officer Latson and I recommend that he be allowed to proceed, as he appears to have exhausted his administrative remedies.
I previously dismissed any discrimination claim made by this plaintiff under Civil Action No. 01-2221 for failure to provide adequate evidence of exhaustion of the administrative process. [#151-2] at 16. I therefore recommend that Officer Latson’s claim for non-promotion survive this motion to dismiss, but all others, including those listed in Exhibit 4, be dismissed.
15. Kevin Matthews In its motion, the defendant concedes that Officer Matthews properly exhausted his administrative remedies for his claim of discipline he received on February 13, 2001. [#315-1] at 180. However, Matthews is also listed in Exhibits 1, 2, 3, 4, 5, 9, 10, and 11, without any factual background for these claims or evidence that administrative remedies as to those claims were exhausted. I therefore recommend that only the claim for discipline on February 13, 2001 go forward, and any other claims be dismissed.
16. Michael Malloy The defendant appears to concede that Officer Malloy timely exhausted his nonpromotion claim. [#315-1] at 175-76. He is also listed, without any explanation, in Exhibits 1, 2, 3, 4, 5, 7. I therefore recommend that only his claim for non-promotion go forward.
17. Danny McElroy Officer McElroy is listed on several exhibits, but not in the body of the complaint. [#2782, 3, 9, 10]. Certification of exhaustion from the Office of Compliance was submitted with the
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plaintiff’s opposition to the instant motion for administrative complaint number 03-CP-75, stating that the administrative process for this claim ended on December 5, 2003. [#331-5]. This claim appears to be one of non-promotion, eventually brought under the consolidated Civil Action No. 04-320.
Once again, however, there appears to be an error in the complaint, as McElroy is not listed in Exhibit 7 or 8 – the exhibits for those claiming non-promotion. As discussed above, I recommend construing the Complaint to incorporate other claims previously made on behalf of a plaintiff, unless there is a specific reason to not do so.
However, that does not solve Officer McElroy’s problems, because the evidence submitted to show exhaustion of this non-promotion claim is inconsistent. McElroy’s own declaration states that mediation ended on November 17, 2003, [#331-5] at 55, but the certification provided by the Office of Compliance states that the end of mediation notice was given on December 5, 2003. [#331-5] at 33. This date makes a difference – if the end of mediation notice was received on November 17, 2003, then the complaint needed to be filed in district court on or before February 16, 2004 to be considered timely. The complaint in Civil Action No. 04-320 was filed on February 26, 2004. If the end of mediation notice was sent on December 5, 2003, however, as the Office of Compliance letter indicates, the plaintiffs had until March 4, 2004 to file. Under that interpretation, the district court case was timely filed.
Given that the compliance certification letter is likely to be more accurate than a plaintiff’s memory, I recommend that Officer McElroy be permitted to proceed on his nonpromotion claim.
Officer McElroy also asserts claims for racist words/actions and discipline, brought under Civil Action No. 01-2221. [#278-2, 3, 10]. However, no facts were alleged in support of
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exhaustion of such claims in the Fourth Amended Complaint. He attests to these claims, as well as to his participation in the administrative process on those claims, only by a declaration resubmitted with the plaintiffs’ opposition to the instant motion. [#331-5] at 53-54. Officer McElroy asserted various claims in Civil Action No. 01-2221, one of which occurred in March 2001, and therefore appears to be timely. It appears that this claim was previously dismissed for failure to appear in person at mediation. [#151-2] at 17. As that is no longer an issue, I recommend that Officer McElroy’s 2001 claim for improper discipline, stemming from the facts alleged in his declaration, [#331-5] at 53-54, go forward as well. All other claims lack support for exhaustion, and therefore must be dismissed.
18. Brent Mills Officer Mills is listed in Exhibits 1, 2, 3, 4, 5, 7, 9, 10 and 11, but no information is provided in the body of the complaint. The parties previously agreed that Officer Mills had at least one viable claim. [#275]. Officer Mills appeared as both a named plaintiff in Civil Action Nos. 01-2221 and 04-320. In the lead case, Officer Mills alleged discrimination in that he was denied a promotion. [#151] at 22. I recommended that this claim be dismissed for failure to exhaust administrative remedies, because the plaintiff’s declaration was incomplete and inconsistent with his counsel’s assertions regarding dates of counseling and mediation. Id. I further recommended dismissal without prejudice with respect to his claim in Civil Action No. 04-320 for retaliatory non-promotion in 2003, noting that additional evidentiary support was needed to account for the dates counseling was initiated and the administrative process was completed. Id. at 22-23. Given the documentation now submitted with the plaintiffs’ opposition to the instant motion certifying that Officer Mills completed the administrative process on this retaliation claim, [#331-5] at 20, I recommend that this claim be allowed to proceed.
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Finally, in the Fourth Amended Complaint, Officer Mills attempts to assert new, additional claims as well, such as hostile work environment, [#278-1], racist words and actions [#278-2, 3], discipline [#278-4, 10], and discrimination in assignments, [#278-5]. No evidence was submitted to show exhaustion on these claims. I therefore must recommend that they be dismissed.
19. Duvall Phelps Officer Phelps asserts multiple claims in the Fourth Amended Complaint, including that he was “constructively discharged and forced into early retirement.” [#278] at 24. Officer Phelps construes this as a discrimination-in-discipline claim, and is listed under Exhibit 10. [#278] at 26; [#278-10]. The defendant correctly points out that this claim, asserted in the lead case, is untimely, because Officer Phelps entered into a settlement agreement regarding his retirement in June 2000, and did not seek counseling until 10 months later, on April 28, 2001. [#365] at 24. This claim should therefore be dismissed with prejudice. Officer Phelps was also a named plaintiff in a consolidated complaint of retaliation in Civil Action No. 03-2644. [#278] at 29. In that complaint, he alleges he was denied access to the Capitol complex in retaliation for being a plaintiff in the lead case, Civil Action No. 03-2644, and that on another occasion, he was escorted out of a building in retaliation for filing his lawsuit. Id. Officer Phelps also alleges a hostile work environment as it relates to those claims. Id. Finally, Officer Phelps alleges that he was discriminated against when items were stolen from his car including his police credentials, while parked in a secure Capitol Police location. Id. at 12. The defendant concedes that Officer Phelps is timely with respect to his claim for retaliation based on his credentials being stolen from his car. [#365] at 29. However, regarding
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the other two allegations, the defendant asserts that he received end of mediation notices for those claims on April 23 and May 23 of 2003, but did not file Civil Action No. 02-2644 until December 29, 2003—more than seven months past the CAA deadline. [#365] at 29. This is contradicted by the certification provided by the Office of Compliance, attached to plaintiffs’ opposition to the instant motion, which states that mediation for claim 03-CP-62 ended October 23, 2003.
I previously held that all of Officer Phelps’ claims could proceed, on the basis of assertions in Officer Phelps’ declaration. [#151] at 23. I see no reason to disturb that holding, especially on the basis of the compliance certification. I therefore recommend that all claims asserted by Officer Phelps in Civil Action No. 03-2644 be allowed to go forward.
20. Vernier Riggs Sergeant Riggs asserts two claims in the Fourth Amended Complaint: discrimination with respect to denials of sick leave, [#278] at 10, and being verbally reprimanded for wearing the wrong shirt on April 13, 2001, [#278] at 29, a claim raised in consolidated Civil Action No. 04320. With regards to the sick leave claim, Sgt. Riggs alleges that she was harassed when she asked for leave for a period up through October 2000. The defendant argues that Sgt. Riggs can only be deemed to have timely requested counseling on this claim for individual incidents of harassment occurring after October 14, 2000 – 180 days before counseling was requested. [#278] at 297. I agree with this assessment, and therefore recommend that Sgt. Riggs be permitted to proceed only on claims of specific incidents of harassment occurring after October 14, 2000. Sgt. Riggs’ claim of unfair discipline for being reprimanded for wearing the incorrect shirt should also be allowed to proceed. The defendant appears to concede as much. [#315-1] at
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297 (“Ms. Riggs timely exhausted this discrimination claim”); [#365-4] at 8. I therefore recommend that this claim be allowed to go forward.
To the extent that other claims are asserted, I recommend that they be dismissed, as no evidence of exhaustion was presented for those claims.
21. Leonard Ross In the Fourth Amended Complaint, Officer Ross asserts claims of discipline and discrimination in promotions, and is listed in Exhibit 4 and 10. [#278-4, 10]. The non-promotion claims do not appear to be timely, as Officer Ross does not assert any facts supporting an allegation that he was denied a promotion within 180 days of his request for counseling. Without this showing, it is impossible to determine whether this Court has jurisdiction over his non-promotion claims. The defendant concedes, however, that Officer Ross has timely retaliation claims regarding discipline on June 27, 2002 and July 29, 2002, for discussing investigations when ordered not to do so. [#365] at 30. I therefore recommend that those claims go forward.
22. Conrad Smith The defendants point out that in 2007, Conrad Smith requested that the Court dismiss him as a plaintiff in this case. [#151-2] at 22. Judge Sullivan, in his order granting the motion for entry of final judgment, dismissed all plaintiffs who were listed in Appendix B and C of my March 19, 2007 Report and Recommendation. Final Order [#223]. Although many of those plaintiffs had their claims remanded for re-consideration, nothing in the Blackmon-Malloy opinion from the D.C. Circuit indicates that its holdings are intended to reverse the previous dismissal of plaintiffs who wanted to be removed from the case. A strong argument is made by the defendant, therefore, that Conrad Smith is no longer properly before this Court.
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Yet, he appears (like Reginald Waters, described below) on a list of plaintiffs for which the parties agree at least one claim is viable. [#275]. As that list appears in a joint status report from the parties, I am perplexed why defendant asserts in that report that Smith has a viable claim, yet denies viability as to all claims in its motion to dismiss.
Smith is listed in multiple exhibits to the Fourth Amended Complaint, but not in the body of the complaint, and this discrepancy is not addressed by either the plaintiffs or the defendant in their briefs on the motion to dismiss. If there is a viable, properly-exhausted claim, it is unclear what it is, or why it is even being raised if the defendant was already dismissed. I therefore must request clarification before deciding whether this plaintiff’s claims should be dismissed. This plaintiff shall, within ten days of this Report and Recommendation, submit an explanation to this Court as to what (if any) claim he is asserting, and why he believes that it was exhausted in accordance with the principles articulated in this Report and Recommendation. The defendant may respond within ten days, and at that time, I will issue my final recommendation on this plaintiff.
23. Reginald Waters This plaintiff’s name only appears in various exhibits to the Fourth Amended Complaint, and not in the body of the complaint itself. No details are given regarding this plaintiff’s claims, when they arose, and when each administrative step was satisfied. It their opposition brief, the plaintiffs submitted a certification of compliance stating exhaustion of remedies for case number 03-CP-77, but it is unclear from the documentation which claims were raised during that process and are therefore exhausted. Confusing things more, Reginald Waters, like Conrad Smith, above, appears on the list of plaintiffs submitted to the court for which the parties agreed at least one claim was viable, but the list does not indicate the claim to which the parties agreed. [#275].
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In later submissions, such as the motion to dismiss and its corresponding reply brief, the defendant asserts that no claims are viable for Reginald Waters. I therefore ask that the plaintiffs submit clarification regarding what claim(s), if any, Officer Waters is asserting. That submission is due no later than ten days from the filing of this Report and Recommendation. Defendant may respond within ten days thereafter. I will then issue my recommendation regarding whether Officer Waters may proceed in this case, and if so, on which claims.
24. Richard Webb Officer Webb alleged discrimination related to the K-9 promotions process. Specifically, he alleges that he “was not included among the recruits on the K-9 mini-list announced on April 18, 2001, which instead include[d] less experienced white recruits.” [#278] at 19. The Fourth Amended Complaint also lists Officer Webb under the appendices for those claiming hostile work environment, racist words or actions, denial of normal privileges, and unfair denial of promotion during the 2002-2004 promotion period. [#278-1, 2, 3, 4, 7]. I previously held that Officer Webb could not proceed on his K-9 unit non-promotion and hostile work environment claims because he did not appear in person for mediation sessions. [#151] at 24-25. As that holding is no longer valid, and certification of completion of the administrative process was provided by the Office of Compliance, those claims should be allowed to proceed. [#331-3]. Webb also was named as a plaintiff in Civil Action No. 04-320, where he complained of non-promotion during the 2002-2004 promotion period. The Office of Compliance certified that Officer Webb completed the administrative process on January 6, 2004 for this claim. [#331-5] at 23. This claim should also be permitted to proceed.
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However, no evidence was submitted to show timely exhaustion on any other claim. Therefore, for any other claim Officer Webb attempts to make in the Fourth Amended Complaint, I recommend that it be denied for lack of jurisdiction.
25. Frank Wilkes Officer Wilkes is listed in Exhibits 1, 2, 3, 5, 7 and 9 of the Fourth Amended Complaint. [#278-1, 2, 3, 5, 7, 9]. In the previous joint status report, Officer Wilkes is listed as a plaintiff whom the parties agree has exhausted at least one of his claims. [#275] at 1-2. However, in its motion to dismiss, the defendant claims that insufficient facts have been alleged to determine whether Officer Wilkes has exhausted any of his claims. [#299] at 253. Similar to the cases of Tammie Green and Danny McElroy, there is a discrepancy with respect to the date that the end of mediation notice was given for Officer Wilkes’ non-promotion complaint brought under Civil Action No. 04-320. The certification letter from the Office of Compliance Certification and Officer Wilkes’ declaration indicates that Officer Wilkes properly exhausted administrative remedies for his non-promotion claim on December 5, 2003, which would make the filing of the complaint on February 26, 2004, timely. [#331-5] at 16. However, Officer Wilkes’ own declaration states that the end of mediation notice was issued on November 17, 2003, which would make the district court case untimely. [#332-5] at 12. Consistent with my conclusions for other plaintiffs, stated above, the compliance certification document should control. Accordingly, Officer Wilkes’ non-promotion claim should go forward. I previously held that Officer Wilkes’ claims brought in the lead case, Civil Action No. 01-2221, should be dismissed with prejudice because no date was given for the alleged violation, meaning that it is impossible to determine whether his administrative actions were timely. [#1512] at 26. This error was not corrected in the declaration submitted in opposition to the motion to
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dismiss, as the only dates provided were for incidents that occurred well more than 180 days before any request for counseling was made. [#332-5] at 13-14. I therefore recommend that any claims asserted in Civil Action No. 01-2221 remain dismissed.
CONCLUSION The vast majority of the plaintiffs in this case should be dismissed for failure to exhaust their administrative remedies as required under the CAA. Many plaintiffs may be dismissed at the outset as per prior agreements between the parties. These plaintiffs are listed in Appendix A. Those plaintiffs who have submitted enough evidence of exhaustion to proceed past the motion to dismiss are identified in Appendix B. I recommend that only those plaintiffs and claims listed in that appendix be allowed to proceed. For all others, I recommend dismissal with prejudice. Finally, there are five plaintiffs for whom additional clarification is necessary. Those plaintiffs are identified in Appendix C. Counsel for those plaintiffs should refer to the discussion of each plaintiff above, and submit all the additional information in accordance with my instructions and deadlines. After receipt of that information and the defendant’s response, I will issue my final recommendation as to those five plaintiffs. Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn, 474 U.S. 140 (1985).
Digitally signed by John M. Facciola DN: c=US, st=DC, l=Washington, email=john_m._facciola@dcd.uscou rts.gov, o=United States District Court for the District of Columbia, cn=John M. Facciola
__________________D_a_t_e:_2_0_12_._12_._14_14:36:55 -05'00' JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE
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APPENDIX A Individuals who were once involved in the lawsuit but the parties agree have not exhausted their
claims, and thus are not within the Court’s jurisdiction List compiled from Parties’ Joint Report in Response to the Court’s March 8, 2010 Order [#275] at 1-2.

3. Akins, Charles 10. Bailey Washington, Monica 15. Black, Clarence 33. Butler, Alphonso 37. Cannady, Stephen 39. Cathion, Keith 40. Chestnut, Bonnie 41. Christian, Joe 50. Curtis, Monte 51. Curtis, Ronald 53. Davis, William C. 54. Deas, Joe 56. Dickens, Willie 58. Dingle, Raymond 67. Emory, Keith 70. Evans Herring, Kim Y. 72. Farmer, Rhonda 80. Gibson, George 85. Graves, Eric 89. Green, Alvin

107. Hart, Moses 108. Hickman, Frentress 120. Jackson, Meldon 123. Jacobs, Henry 126. Jenkins, Carleton 128. Jenkins III, Thomas L.2 130. Jeter, Jr., Clarence 132. Johnson, Frank 134. Johnson, Willie 136. Jones, Jr., Naudain 138. Jones, Mervin 141. Kennedy, James 142. Kennedy, Mack 145. Kyle, Dorothy 148. Landrum, Janice 150. Lassiter, Sylvia 175. McNair, Samuel 176. Mihilis, Spiro 179. Moffett, Alfred 193. Newton, Marcelus

195. Nowden, Clarence 201. Patterson, Marvin 205. Pinnix, James P. 206. Pittman, Kenneth 208. Powell, James 209. Powell, Sr., Albert 211. Proctor, Jr., James 214. Rainey, Barry 215. Reid, Doris 223. Rose, Thomas 234. Shields, Leroy 251. Steward, Robert 260. Thompson, Kennieth 261. Thorne, Jasper 262. Trader, David 273. Weems, Stephanie 281. Whitt, James 282. Wilkerson, Daniel 289. Williams, Roosevelt 292. Williams, Thomas

The number assigned to each plaintiff corresponds to the number assigned to each plaintiff in the notice of appeal the plaintiffs filed with the Court on September 12, 2007.

Claims listed in the Fourth Amended Complaint that were dismissed on 11/29/11 via Minute Order and are therefore no longer before the court

Alphonso Butler Masood Darsanni Yvonne Dove Kim Y. Evans-Herring Michael Funderburk14 Alvin Green James Griffin

Frentress Hickman Henry L. Jacobs Mack Kennedy Ollie McCoy Calvin K. Shields, Jr.15 Robert Stewart

Kennieth F. Thompson
Jasper Thorne
David A. Trader Steven Washington16 Victoria J. Williams17 Reginald P. Wilson18

14 Listed in Ex. 1, 4, 9. [#2781, 4, 9]

15 Listed in Ex. 6. [#278-6]. 39

16 Listed in Ex. 1, 4, 9 [#278-1,
4, 9]. 17 Listed in Ex. 6. [#278-6]. 18 Listed in Ex. 3, 4, and 10
[#278-3, 4, 10].

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APPENDIX B Viable Claims

Plaintiff Adams, Frank
Blackmon-Malloy, Sharon
Bolden-Whitaker, Regina Brooks, Tyronne Fields, Arnold
Goines, Gary Green, Tammie Harris, Ave Maria Ikard, Larry
Johnson, John N. Latson, Governor Matthews, Kevin Malloy, Michael McElroy, Danny Mills, Brent Phelps, Duval
Riggs, Vernier
Ross, Leonard Webb, Richard
Wilkes, Frank

Claims that may proceed Discrimination/hostile work environment for racial slurs/language Discrimination in selection for Johns Hopkins PELP program, management college, and FBI National Academy; Negative comments, threats of transfer, and involuntary transfer Lt. with less seniority was promoted; denied Captain promotion and denied request to transfer Non-selection to Captain position Incorrect score on Lt. exam, receipt of CP-550 performance notes and CP-534 Exposure to second hand smoke Non-promotion following 2003 Lt. Promotions exam Retaliation for refusing to sign a deputation form
Retaliation re: non-promotion in 2002 Hostile work environment and retaliation, including retaliation related to his 2002 performance evaluation and the Family Friendly Leave investigation Discrimination in the Sgt. Promotions process Non-promotion Retaliation for failure to evacuate building during an alarm Non-promotion to K-9 officer position and hostile work environment/discrimination when dog was adopted and named “Huk” Non-selection following 2000 Sgt. Exam Non-promotion in the 2002 promotional process Discipline received on February 13, 2001 Non-promotion from 2000 Sgt. Exam Improper discipline in 2001 for stepping off his post Retaliation in non-promotion in 2003 Retaliation in being denied access to the Capitol complex, being escorted out of the building, and having his credentials stolen from his car Denial of sick leave from October 14, 2000 and October 30, 2000 Unfair discipline for wearing the incorrect shirt Retaliation for discussing details of internal investigations
Denied promotion to K-9 Unit, hostile work environment Retaliation in non-promotion during 2002-2004 promotion period Non-promotion claim

Case Number 01-2221
04-0943
05-0491
06-0653 01-2221
02-1859 03-2644 03-2644
04-320 02-1346, 031505, 03-2644
04-0320
03-2644 01-2221
01-2221 04-320 01-2221 01-2221 01-2221 04-320 03-2644
01-2221
04-320 02-2481 01-2221 04-320
04-320

40

Case 1:01-cv-02221-EGS Document 376 Filed 12/14/12 Page 41 of 41

APPENDIX C Additional clarification is needed for these plaintiffs/claims
Please see the corresponding page number for details

Plaintiff Adams, Shafton Brown-James, Sandra Green, Tammie Smith, Conrad Walters, Reginald

Page number in Report and Recommendation 17-18 22 24-25 33-34 34-35

41

 
 Case 1:01-cv-02221-EGS Document 429 Filed 10/13/16 Page 1 of 136

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________

)

SHARON BLACKMON-MALLOY, et al., )

)

Plaintiff,

)

)

v.

) Civil Action No. 1-2221 (EGS)

)

UNITED STATES CAPITOL POLICE )

BOARD,

)

)

Defendant.

)

________________________________)

MEMORANDUM OPINION

The plaintiffs in this case allege that they suffered

discrimination and retaliation in violation of the Congressional

Accountability Act, 2 U.S.C. § 1301, et seq. Pending before the

Court are: (1) the plaintiffs’ objections to Magistrate Judge

Facciola’s Report and Recommendation, which suggests that this

Court should grant the defendant’s motion to dismiss most of the

plaintiffs and claims in this case; and (2) the plaintiffs’

motion for leave to file a Fifth Amended Complaint. Upon

consideration of the motion for leave to file an amended

complaint, the response and reply thereto, the applicable law,

and the entire record, the Court will DENY the motion. The Court

therefore proceeds to consider defendant’s motion to dismiss,

the response and reply thereto, the Magistrate Judge’s Reports

and Recommendations, and the objections and replies thereto.

Upon consideration of these materials, as well as the applicable

Case 1:01-cv-02221-EGS Document 429 Filed 10/13/16 Page 2 of 136
law and the entire record, the Court will ADOPT IN PART AND
REJECT IN PART Magistrate Judge Facciola’s Reports and
Recommendations and GRANT IN PART AND DENY IN PART defendant’s
motion to dismiss. With regard to Officer Macon, who is proceeding pro se in this matter, the Court will ADOPT
Magistrate Judge Facciola’s Supplemental Report and Recommendation and GRANT defendant’s motion to dismiss his
claims. As explained below, the Court will also STAY the
effectiveness of this ruling and WITHHOLD issuance of any Final
Order regarding these pending motions and objections, until such
time as the various attorney-representation issues that are
pending in this case have been resolved. I. Background
A. Plaintiffs Pursue Administrative Proceedings With the Capitol Police Board.
The Court of Appeals for the District of Columbia Circuit has
summarized the administrative proceedings that took place in
this matter:
[B]etween April 12 and May 15, 2001, officers from the United States Capitol Black Police Association delivered materials to the Office[of Compliance], on behalf of “approximately 200 individual Capitol Police officers, former officers, and former recruits” (collectively “officers”), asserting that the Police Board and others had violated 2 U.S.C. § 1311, which made applicable protections under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and Title I of the Americans with Disabilities Act of 1990. The materials identified Charles Jerome Ware, Esq., as their attorney.
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By letter of April 13, the Executive Director of the Office informed the Association and Attorney Ware of the [Congressional Accountability Act’s] counseling and mediation requirements and advised that he had accepted the materials submitted as “requests for counseling by each and every individual named in the material.” Ltr. from William W. Thompson II to Charles Jerome Ware at 2 (Apr. 13, 2001). Counseling was conducted in three mass counseling sessions that took place on April 28, April 30, and May 5, 2001. The Office issued to the complainants written “Notifications of End of Counseling Period” on May 16 and June 15, 2001, based on the date counseling was requested.
On June 5, 2001, Attorney Ware requested mediation “on behalf of all the employees he represent[s].” Ltr. From Charles Jerome Ware to William W. Thompson II at 1. On June 12, the Office appointed Herbert Fishgold and Marvin Johnson as mediators for the cases. Additional officers requested mediation on June 27, 2001. On June 28, the parties jointly requested extension of the mediation period to October 1, 2001, but the Executive Director extended the period only to August 1, explaining that “[i]f the parties are engaged in serious mediation efforts, further extensions will be reviewed favorably.” Notice of Extension of Mediation (June 29, 2001). In mid-July, Attorney Ware provided further information about approximately 76 of his clients. Upon agreement of the parties to proceed in alphabetical order, multiple mediation sessions were conducted on July 23 and 25, 2001. Attorney Ware’s records show various telephone calls and meetings with the mediators in June and July, and by sworn declaration he stated that prior to August 2, 2001, he had spoken on behalf of all his clients with Office representatives, the mediators, and counsel for the Police Board and had represented selected officers in joint mediation sessions conducted by the Office. Ware Decl. May 21, 2004.
On August 2, 2001, the Office sent Attorney Ware and the Police Board a “NOTICE OF END OF MEDIATION” advising them of the dates of mediation and that the matters underlying the requests for mediation were not resolved. The notice also advised that the officers had to make an election pursuant to section 1404 to proceed under sections 1405 or 1408 “not later than 90 days, but no
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sooner than 30 days, after [they] ha[d] received this notice.” The notice provided further details about proceedings under section 1405. Attached to the notice was a five-page single-spaced listing of the names and case numbers of the officers to whose claims the notice applied. On October 2, 2001, the Office certified, through its custodian of records, the dates of the requests for counseling and mediation, the dates the notices of the ends of those periods were mailed, and the dates receipt of the notices was acknowledged. Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 703–04 (D.C. Cir. 2009). B. Plaintiffs File a Putative Class Action Against the
Capitol Police Board and Quickly Encounter Representational Difficulty. On October 29, 2001, Mr. Ware — apparently serving as counsel for all plaintiffs — filed this lawsuit. See Compl., ECF No. 1. The Complaint named over 250 individuals — current and former officers of the Capitol Police — as plaintiffs who intended to pursue a variety of claims under the Congressional Accountability Act, 2 U.S.C. § 1301, et seq. See id. at 1–7, 9. Those claims included allegations of racial discrimination in hiring, promotions, training opportunities, and termination of employment; disparate treatment/hostile work environment; gender discrimination in hiring and promotions, training opportunities, assignments, discipline, and work assignments; sexual harassment; “abusive discharge”; and intentional infliction of emotional distress. See id. at 20–40.
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Soon after the case was filed, Mr. Ware withdrew as counsel for the plaintiffs. See Notice of Withdrawal, ECF No. 7 at 1. At this point, some confusion ensued about who was representing the plaintiffs. Attorneys from the law firm of Gebhardt & Associates, LLP filed a motion for class certification and a First Amended Complaint on behalf of the plaintiffs. See First Am. Compl., ECF No. 9; Mot. to Certify Class, ECF No. 10. Around the same time, Nathaniel Johnson filed two “Amended Complaints,” seemingly on behalf of the same putative class. See Am. Compl., ECF No. 12; Second Am. Compl., ECF No. 13. On June 28, 2002, the Gebhardt Attorneys sought to disqualify Nathaniel Johnson from acting as class counsel, on the grounds that Mr. Johnson had allegedly failed to comply with certain filing deadlines and otherwise “fail[ed] to demonstrate the experience and qualifications necessary to serve as a class counsel.” Mot. to Disqualify Johnson, ECF No. 18 at 1. Mr. Johnson responded that he had in fact adequately represented the plaintiffs through the filing of amended complaints. See Opp’n to Mot. to Disqualify, ECF No. 22.
On July 10, 2002, the Capitol Police Board filed its first motion to dismiss the various complaints. See First Mot. to Dismiss, ECF No. 20. The Capitol Police argued, inter alia, that the plaintiffs had largely failed to exhaust their administrative remedies and otherwise failed adequately to
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describe their claims. See id. That same day, the Capitol Police moved to stay briefing of the plaintiffs’ motion for class certification pending resolution of the motion to dismiss. See Mot. to Stay, ECF No. 19. Due to the ongoing representational issue, both the Gebhardt Attorneys and Mr. Johnson filed oppositions to the motion to dismiss. See Gebhardt Opp’n, ECF No. 28; Johnson Opp’n, ECF No. 29.
On September 16, 2002, the Court entered an Order addressing various pending issues. See Order, ECF No. 31. First, the Court denied without prejudice the pending motion for class certification, in light of the need to resolve first the pending motion to dismiss. Id. at 1. The Court then denied the motion to preclude Mr. Johnson from serving as Class Counsel because no class had yet been certified. See id. at 2. In an effort to clarify the representational conflict, the Court directed Mr. Johnson to explain precisely “the parameters of his current representation” and to “identif[y] the individual plaintiffs whom he represents and provide[] evidence of those plaintiffs’ consent to his representation of them in this lawsuit.” Id. The Court further ordered Mr. Johnson to show cause why the amended complaint he had filed should not be stricken for failure to comply with Federal Rule of Civil Procedure 15(a). See id. The Court later referred the plaintiffs to mediation before
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Magistrate Judge John M. Facciola for resolution of the representational dispute. See Order, ECF No. 38 at 1.
On January 14, 2003, the plaintiffs submitted a notice that they had resolved their representational dispute, that “[t]he Plaintiffs in this action are those named in the original Class Action Complaint filed on October 29, 2001, and that “[a]ttorney Gebhardt is the lead counsel for all Plaintiffs, and attorney Johnson is the co-lead counsel for all Plaintiffs.” Notice, ECF No. 46 at 2. The Court then denied without prejudice the Capitol Police Board’s first motion to dismiss, in light of the need for the plaintiffs to submit an amended complaint. See Order, ECF No. 48 at 1.
C. The Plaintiffs File a Second Amended Complaint. The plaintiffs — jointly represented by the Gebhardt Attorneys and Mr. Johnson — filed a Second Amended Complaint on January 29, 2003. See Second Am. Compl., ECF No. 51. The Second Amended Complaint — unlike the original complaint — did not name all 250 plaintiffs, but instead named seven apparent class representatives, arguing that they would represent “all AfricanAmerican Officers employed by the United States Capitol Police Board (including the named plaintiffs in the original complaint), at any time from November 4, 1998 to the date of the Court’s order granting relief . . . in this action.” Id. ¶ 1. The Second Amended Complaint continued to allege racial
7

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discrimination “in such personnel decisions as promotions, other selections, work assignments, discipline, and termination,” as well as “retaliat[ion] against African-American Officers who oppose discrimination.” Id. ¶ 2. The Second Amended Complaint ceased to mention many of the other claims for relief that had been raised in the initial complaint, however. See id. The Second Amended Complaint also contained a blanket assertion that “[t]he Plaintiff Class Agents have exhausted their administrative remedies by completing counseling and mediation with the Office of Compliance as required. Pursuant to 2 U.S.C. §§ 1402, 1403, and 1404(2), the original Complaint was filed in this case on October 29, 2001, within 90 days of the end of mediation, which had occurred on August 2, 2001.” Id. ¶ 7.1
The case spent much of 2003 in settlement discussions. On December 5, 2003, the Court held a status hearing, after which the case was returned to the Court’s active calendar and the Court set a schedule for the briefing of a renewed motion to
1 Soon after the Second Amended Complaint was filed, the Court granted the parties’ request to consolidate three separate cases involving individual claims into this case. See Order, ECF No. 52; Order, ECF No. 53. Those cases each alleged retaliation in response to the plaintiff’s participation in the underlying putative class action: Arnold Fields v. Capitol Police Board, No. 2-1346 (D.D.C. filed July 2, 2002); Sharon Blackmon-Malloy v. Capitol Police Board, No. 2-1859 (D.D.C. filed Sept. 20, 2002); Leonard Ross v. Capitol Police Board, No. 2-2481 (D.D.C. filed Dec. 17, 2002).
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dismiss. See Minute Order of December 5, 2003. On December 22, 2003, the Capitol Police Board moved to dismiss the Second Amended Complaint, renewing the argument that the plaintiffs had failed to exhaust their administrative remedies. See Second Mot. to Dismiss, ECF No. 64.
D. The Court Grants the Second Motion to Dismiss. On September 30, 2004, the Court granted the Capitol Police Board’s motion to dismiss. See Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp. 2d 97 (D.D.C. 2004)(“Blackmon-Malloy I”). The Court first held that the administrative-exhaustion requirements of the Congressional Accountability Act were jurisdictional in nature and therefore the failure to comply with those requirements could not be excused based upon doctrines such as equitable tolling or vicarious exhaustion. See id. at 101–06. Relatedly, the Court held that these jurisdictional limitations constituted conditions to the United States’s waiver of sovereign immunity: “[T]he timeliness requirement is a condition of waiver of sovereign immunity— failure to comply is fatal.” Id. at 104 (internal citation omitted). The Court discussed in detail the requirements for demonstrating a plaintiff’s compliance with these jurisdictional requirements. See id. at 107–09. To begin, because the plaintiffs bear the burden of establishing subject-matter jurisdiction, the Court held that “[p]laintiffs’ bare
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allegations that they have ‘completed counseling and mediation
with the Office of Compliance as required’ are insufficient to
establish subject matter jurisdiction in the face of a
challenge.” Id. at 107 (quoting Second Am. Compl., ECF No. 51 ¶¶
7, 11).
The Court next found that both the counseling and mediation
requirements of the Congressional Accountability Act required
that each plaintiff appear in-person for the counseling and
mediation sessions. See id. at 107–08. Finally, the Court
concluded that the notices issued by the Congressional Office of
Compliance regarding the end of counseling and mediation did not
necessarily mean that mediation or counseling were complete for
purposes of calculating the applicable deadlines. See id. at
107-108.
The Court also decided a number of other issues raised in the
defendant’s motion to dismiss:
• First, the Court briefly analyzed the adverseemployment-action requirement applicable to claims under the Congressional Accountability Act. See id. at 106– 07. This analysis revealed three deficiencies in the claims of certain plaintiffs: (1) “a plaintiff who is made to undertake or who is denied a lateral transfer— that is, one in which she suffers no diminution in pay or benefits—does not suffer an actionable injury unless there are some other terms, conditions, or privileges of her employment or her future employment opportunities”; (2) “a claim of an undesirable assignment, without any effect on salary, benefits, or grade, is similar to claims regarding lateral transfers, and thus does not constitute adverse action”; and (3) “formal criticisms or reprimands, without additional disciplinary action
10

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such as a change in grade, salary, or other benefits do not constitute adverse employment actions.” Id. at 106 (internal citation omitted). The Court declined to opine on whether such events could form part of a hostilework-environment claim. See id. at 107.
• Second, the Court held that it “cannot exercise jurisdiction over plaintiffs whose employment ended prior to the effective date of the CAA—January 26, 1996.” Id. at 110. Although the plaintiffs had argued that discovery may be required to “verify” allegations that certain individuals listed in the Second Amended Complaint were terminated prior to January 26, 1996, the Court rejected this argument: “Because plaintiffs bear the burden of persuasion to establish subject matter jurisdiction in the face of a Federal Rule of Civil Procedure 12(b)(1) challenge and plaintiffs have offered no justification for why these dates are not undisputed and easily discernable, these plaintiffs’ claims shall be dismissed.” Id.
• Third, the Court held that “[o]nly plaintiffs who participated in the 2000 Promotion Process have potentially viable promotion claims.” Id. This was so due to the 180-day deadline for seeking counseling after the occurrence of a discrete act of discrimination: “[W]hile a plaintiff can seek counseling for a hostile work environment claim under the CAA within 180 days of an act by defendant that contributed to the hostile environment, a plaintiff must seek counseling regarding a discrete act of discrimination or retaliation within 180 days of the date the act actually occurred.” Id. A failure-to-promote challenge to the 2000 Promotion Process “would accrue at the time plaintiffs ‘finally realized’ that participation in the 2000 process was a futile gesture,” which, in this case would have been August 1, 2000—“the participation opt-in date for both the Sergeant’s and Lieutenant’s exam.” Id. at 111, 112. This came more than 180 days prior to any of the plaintiffs’ counseling sessions, so “only those officers who participated in the 2000 promotion process”—and therefore had claims that would accrue later, upon their nonselection—“may challenge the process.” Id. at 112.
• Fourth, the Court dismissed plaintiffs’ “[n]on-timely disparate impact claims.” Id. Plaintiffs had alleged that the defendant “‘has established and maintained a
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racially discriminatory system which discriminates against its African American officers in promotions, other selections, work assignments, discipline, and termination in a way that is excessively subjective and which has had a disparate impact on African American employees.’” Id. (quoting Second Am. Compl., ECF No. 51 ¶ 53). The plaintiffs, however, did “not allege[] that the ‘excessively subjective’ system had a disparate impact on African Americans within 180 days of the first request for counseling”—“[w]ithout a timely request for counseling and mediation, these claims also fail.” Id.
The Court concluded its Opinion by noting that “[a]t this
time, it is unclear which, if any, of plaintiffs’ claims remain
viable.” Id. at 113. Accordingly, the Court granted the motion
to dismiss, but permitted the plaintiffs to move for
reconsideration to address “those plaintiffs’ claims that
conform to the timely counseling and mediation requests as
explained in this Memorandum Opinion.” Id. The Court directed
that any such motion “shall clearly state (and provide
appropriate documentation for) the allegedly discriminatory act,
the date the act occurred, the date counseling was requested,
the date the claimant attended counseling, the date mediation
was requested, and the date a mediation session was attended.”
Id. The Court further directed plaintiffs in the consolidated
cases to file a similar pleading. See id. E. Plaintiffs Move for Reconsideration; Magistrate Judge Facciola Recommends Denying the Motion and the Court Agrees.
On January 14, 2005, the plaintiffs filed a motion for
reconsideration, in accordance with the Court’s direction. See
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Mot. to Reconsider, ECF No. 96. The plaintiffs argued that “at least 19 Officers timely complained of adverse actions . . . and 19 Officers timely complained of hostile work environments in which one or more adverse actions or hostile incidents occurred within 180 days of their request for counseling at the Office of Compliance,” that plaintiffs “made timely claims challenging the year 2000 promotion process, and that they have made timely complaints and properly exhausted administrative remedies.” Id. at 3.2 On August 4, 2005, the Court referred the motion for reconsideration to Magistrate Judge Facciola for preparation of a Report and Recommendation. See Minute Order of August 4, 2005.3
On March 19, 2007, Magistrate Judge Facciola issued a Report and Recommendation. See Blackmon-Malloy v. U.S. Capitol Police Bd. (“Blackmon-Malloy II”), No. 1-2221, 2007 WL 841019 (D.D.C.
2 At this time, the Court, sua sponte, consolidated six additional separate cases involving individual claims into this case. See Order, ECF No. 108. Those cases were: Arnold Fields v. Capitol Police Board, No. 3-1505 (D.D.C. filed July 10, 2003); Derrick Macon v. Capitol Police Board, No. 3-1592 (D.D.C. filed July 25, 2003); Bolden-Whitaker v. Capitol Police Board, No. 32644 (D.D.C. filed Dec. 29, 2003); Kendrick Young v. Capitol Police Board, No. 4-320 (D.D.C. filed Feb. 26, 2004); Frank Adams v. Capitol Police Board, No. 4-943 (D.D.C. filed June 9, 2004); Frank Adams v. Capitol Police Board, No. 5-491 (D.D.C. filed Mar. 10, 2005). 3 While proceedings were underway before Magistrate Judge Facciola, the Court, sua sponte, consolidated another case into this one, Frank Adams v. Capitol Police Board, No. 6-653 (D.D.C. filed Apr. 10, 2006). See Order, ECF No. 142.
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Mar. 19, 2007). Judge Facciola summarized his findings as follows:
Parties were instructed to work together to complete two charts provided by this Court, Chart A and Chart B . . . and detail, for each Plaintiff and each claim, the exact cause of action and pertinent information regarding their exhaustion of administrative remedies. The Court has received and reviewed the charts and now finds that the majority of the claims must be dismissed for failure to exhaust administrative remedies or failure to provide required support, while a small group of claims satisfies the requirements [of administrative exhaustion]. Id. at *1. Magistrate Judge Facciola found that “only fourteen Plaintiffs . . . exhausted the administrative requirements for either all or some of their claims,” as set forth in a chart attached to his Opinion. Id. at *4. After considering the parties’ objections to Magistrate Judge Facciola’s reports and recommendations, the Court entered an Order adopting those recommendations in full. See Order, ECF No. 180. On September 12, 2007, the plaintiffs filed a notice of appeal raising the following issues: (1) this Court’s decision not to consider the Office of Compliance’s end-of-mediation notices as automatically signifying the close of the mediation period for deadline purposes; (2) this Court’s decision that mediation and counseling must be attended in-person for an individual to exhaust her administrative remedies; and (3) this Court’s denial of the plaintiffs’ motion for class certification, pending resolution of the defendant’s motion to dismiss. See Notice of
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Appeal, ECF No. 181. The appeal was filed on behalf of “Plaintiffs Regina Bolden-Whitaker, Ave Maria Harris, and the other Plaintiffs listed in Attachment 1.” Id. at 1. Attachment 1 to the Notice listed 306 names. See List of Plaintiffs/Appellants, ECF No. 181-1. On September 14, 2007, Derrick Macon and Frank Adams, each proceeding pro se, filed their own individual notices of appeal. See Macon Notice of Appeal, ECF No. 185; Adams Notice of Appeal, ECF No. 186.
F. The Court of Appeals for the District of Columbia Circuit Affirms in Part, Reverses in Part, and Remands for Further Proceedings.
The Court of Appeals issued its decision on July 31, 2009. See Blackmon-Malloy v. U.S. Capitol Police Bd. (“Blackmon-Malloy III”), 575 F.3d 699 (D.C. Cir. 2009). The Court of Appeals affirmed in part and reversed in part this Court’s decision in Blackmon-Malloy I and the related adoption of Magistrate Judge Facciola’s Report and Recommendation in Blackmon-Malloy II. See id. at 714. The decision addressed three legal issues:
First, the Court of Appeals affirmed this Court’s conclusion that the administrative-exhaustion requirements of the Congressional Accountability Act were jurisdictional and that failure to comply with them therefore could not be excused under the various equitable doctrines pressed by the plaintiffs. See id. at 704–07. Therefore, the Circuit held, “the district court correctly ruled that it was not empowered to apply the equitable
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doctrine of vicarious exhaustion to excuse compliance.” Id. at 706. The Circuit also rejected the plaintiffs’ complaint regarding this Court’s decision to address the defendant’s jurisdictional motion to dismiss before ruling on the plaintiffs’ request for class certification, “as jurisdiction is a threshold question.” Id.
Second, the Circuit reversed this Court’s conclusion that an employee must attend counseling and mediation sessions in person. See id. at 707–10.
Third, the Circuit reversed this Court’s conclusion regarding the effect of the Office of Compliance’s end-of-mediation notices. See id. at 710–13. It held, instead, that “the reference in section 1408(a) to ‘completed counseling . . . and mediation’ means no more than that the employee timely requested counseling and mediation, that the employee did not thwart mediation by failing to give notice of his or her claim to the employing office upon request, that the mandated time periods have expired, and that the employee received end of counseling and mediation notices from the Office.” Id. at 713.
In view of these rulings, the Circuit remanded the case to this Court, with the following instruction: “On remand, the district court shall determine which officers made timely requests under sections 1402 and 1403 and provided notices of their claims upon request, and which officers received end of mediation notices
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and made timely elections pursuant to section 1404.” Id. at 714 n.5.
G. The Court Resolves Pending Motions and Sets a Schedule for Addressing the Jurisdictional Issues on Remand.
Soon after the case was remanded, the Capitol Police Board filed a motion seeking to: (1) clarify which plaintiffs had actually appealed this Court’s prior Orders and which had not; and (2) discern precisely which individuals were represented by the various attorneys in this case. See Mot. to Strike, ECF No. 262-1. The Capitol Police Board argued that the notice of appeal appeared to indicate that the lawyers did not actually represent many of the individuals on whose behalf the notice was purportedly filed. See id. at 4–5. On March 8, 2010, the Court denied the Capitol Police Board’s motion, finding the notice “sufficient to qualify as an appeal of class-wide claims in this proposed class action proceeding” and “that regardless of whether plaintiffs’ counsel represented all the individual plaintiffs at different times throughout the litigation, plaintiffs’ counsel has at all times served as counsel for the proposed class.” Order, ECF No. 271 at 2-3.
That same Order set forth a schedule for resolution of the jurisdictional issues on remand from the Court of Appeals. See id. at 2. First, the Court ordered the parties to file:
[A] joint pleading with the Court containing the following information: (a) A list of plaintiffs that the
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parties agree have exhausted their remedies as set forth by the Circuit; (b) A list of individuals that were once involved in the lawsuit but that the parties agree have not exhausted, and are thus not within the court’s jurisdiction; (c) A list of individuals as to whom exhaustion is disputed; (d) A certification by the Plaintiffs that, so far as they are aware, this list constitutes a complete list of possible class members.
Id. at 2. Next, the plaintiffs were to:
[F]ile a new complaint pleading subject matter jurisdiction as set forth in the D.C. Circuit’s decision for individual and class claims. With the complaint, plaintiffs shall file a comprehensive list of plaintiffs/class members, which must be the same as that set forth in (1)(a) and (c) above.
Id. The Court also permitted the plaintiffs to take limited
jurisdictional discovery “with regard to defendant’s factual
attacks on plaintiffs’ exhaustion claims only.” Id.
On April 8, 2010, the parties submitted a joint pleading
setting forth their positions regarding the status of various
plaintiffs. See Joint Report, ECF No. 275. As for the list of
plaintiffs whom the parties agree properly exhausted their
administrative remedies, the parties submitted seventeen names.
See id. at 1–2.4 The defendant noted, however, that it agreed
that these individuals had exhausted their administrative
4 These plaintiffs are: Sharon Blackmon-Malloy; Frank Adams; Regina Bolden-Whittaker; Tyrone Brooks; Sandra Brown-James; Arnold Fields; Gary D. Goines; Tammie D. Green; John N. Johnson; Governor Latson; Brent A. Mills; Leonard Ross; Conrad Smith; Reginald W. Waters; Richard Webb; Frank Wilkes; and Kendrick Young.
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remedies regarding some of their claims; each individual also
appears on the list of those as to whom exhaustion is disputed
because the defendant argues that these individuals failed to
exhaust regarding certain claims. See id. at 1 n.1, 4–10. The
parties also agreed that sixty plaintiffs did not properly
exhaust their administrative remedies and thus should be
dismissed from this case, id. at 2–3,5 and that seven more had
indicated to counsel their intent to withdraw from the case. Id.
at 3–4.6 Finally, the report listed the remaining plaintiffs as
to whom exhaustion was disputed (this list included the
seventeen plaintiffs whom the defendant agrees exhausted some,
but not all, of their claims). See id. at 4–10. Plaintiffs’
5 These plaintiffs are: Charles Akins; Monica Bailey Washington; Clarence Black; Alphonso Butler; Stephen Cannady; Keith Cathion; Bonnie Chestnut; Joe Christian; Monte Curtis; Ronald Curtis; William C. Davis; Joe Deas; Willie Dickens; Raymond Dingle; Keith Emory; Kim Y. Evans Herring; Rhonda Farmer; George Gibson; Eric Graves; Alvin Green; Moses Hart; Frentress Hickman; Meldon Jackson; Henry Jacobs; Carleton Jenkins; Thomas L. Jenkins III; Clarence Jeter, Jr.; Frank Johnson; Willie Johnson; Naudain Jones, Jr.; Mervin Jones; James Kennedy; Mack Kennedy; Dorothy Kyle; Janice Landrum; Sylvia Lassiter; Samuel McNair; Spiro Mihilis; Alfred Moffett; Marcelus Newton; Clarence Nowden; Marvin Patterson; James P. Pinnix; Kenneth Pittman; James Powell; Albert Powell, Sr.; James Proctor, Jr.; Barry Rainey; Doris Reid; Thomas Rose; Leroy Shields; Robert Steward; Kennieth Thompson; Jasper Thorne; David Trader; Stephanie Weems; James Whitt; Daniel Wilkerson; Roosevelt Williams; and Thomas Williams. See id.
6 These plaintiffs are: Shawn Deneal; Yvonne Dove; Marcus Edwards; Charles Nanton, Jr.; Anthony Washington; Jolania White Sharps; and Rodric Myers. See id.
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counsel also certified that the individuals identified in these various sections “constitute a complete list of possible class members in the Blackmon-Malloy litigation, to the best of counsel’s information, knowledge, and belief.” Id. at 11.
In accordance with the Court’s Order, the plaintiffs then proceeded to submit a Fourth Amended Complaint. See Fourth Am. Compl., ECF No. 278. The Fourth Amended Complaint brought claims for “(1) a racially hostile work environment; and/or (2) race discrimination in promotions, other selections, work assignments, discipline, and termination; and/or (3) retaliation.” Id. ¶ 6. The Fourth Amended Complaint contained a number of vague and general allegations regarding the plaintiffs’ exhaustion of administrative remedies; at times, the Fourth Amended Complaint described a particular incident about which a plaintiff complained and vaguely asserted that other plaintiffs experienced similar events.7 Attached as exhibits to
7 See id. ¶ 6 (“Plaintiffs requested counseling and received End of Mediation Notices from the Congress’s Office of Compliance as a result of these discriminatory experiences.”); id. ¶ 16 (“From April to May 2001, the Plaintiffs in this case timely requested counseling from the Congress’s Office of Compliance, initiating their discrimination claims, in response to discriminatory incidents they had experienced in the 180 days prior to seeking counseling.”); id. ¶¶ 21–23 (describing two discrete events suffered by two plaintiffs, then claiming that many other plaintiffs suffered similar, but different, events “[d]uring the 180 days before the [plaintiffs] filed their requests for counseling”).
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the Fourth Amended Complaint were charts purporting to list individuals who had suffered a particular class of event (e.g. racist epithets, other allegedly racist actions, other abusive treatment) with the Complaint describing a single example or two and stating that those individuals listed in the relevant exhibit had suffered something similar and conclusorily asserting that all had made timely requests for counseling and followed the administrative process. See id. ¶¶ 25, 26, 28, 35, 38, 39, 45, 53, 54, 68, 73. The Fourth Amended Complaint also included more detailed narratives regarding certain individual plaintiffs. See generally id.
Although the defendant’s motion to dismiss was not due until August 12, 2010, the plaintiffs preemptively moved to “limit the scope of” that motion. See Mot. to Limit, ECF No. 292. The plaintiffs’ apparent concern was that the defendant might seek “to challenge whether counseling was requested as to each detail of Plaintiffs’ claimed discrimination charges and thereby relitigate the exhaustion issues already decided by the Court of Appeals.” Id. at 2. The Capitol Police Board opposed the motion, arguing, inter alia, that plaintiffs entirely misunderstood the Court of Appeals’ decision:
The plaintiffs erroneously assert that an officer may exhaust administrative remedies simply by receiving end of counseling and end of mediation notices [internal citations omitted]. The D.C. Circuit made no such ruling. To the contrary, the D.C. Circuit expressly held
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that each officer must show that he or she requested counseling within 180 days of the allegedly discriminatory act raised in the complaint. BlackmonMalloy [III], 575 F.3d [at] 713 n.5 [internal citations omitted][.] The officers’ statements during the counseling period are not only relevant to this inquiry, they are the most probative evidence of what alleged discriminatory act(s) an officer sought counseling for and whether the officer’s request for counseling was timely (i.e., made within 180 days of the allegedly discriminatory act(s)).
Opp’n to Mot. to Limit, ECF No. 295 at 3. On August 9, 2010, the
Court denied the motion without prejudice to the raising of any
related arguments in connection with the defendant’s forthcoming
motion to dismiss. See Minute Order of August 9, 2010. H. The Defendant Moves to Dismiss and the Court Refers the Motion to Magistrate Judge Facciola. On August 12, 2010, the Capitol Police Board moved to dismiss
all but a select handful of the plaintiffs and claims at issue in this case. See Mot. to Dismiss (“Mot.”), ECF No. 298.8 Officer
Macon filed his pro se opposition to the motion to dismiss on
November 12, 2010. See Macon Opp’n to Mot. (“Macon Opp’n”), ECF
No. 318. After obtaining numerous extensions of the deadline to
respond to the motion to dismiss, the plaintiffs (represented by
the Gebhardt Attorneys and Mr. Nathaniel Johnson) filed their
opposition to the motion to dismiss. See Pls.’ Opp’n to Mot.
8 Because of the statutory directive that counseling and mediation be “strictly confidential,” 2 U.S.C. § 1416(a) & (b), the Capitol Police Board supported its motion with a sealed filing. ECF No. 299.
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(“Pls.’ Opp’n”), ECF No. 331. After reviewing a declaration
filed by Charles Ware (who represented the plaintiffs during
administrative proceedings), the Capitol Police Board moved for
leave to depose Mr. Ware before filing their reply brief. See
Mot. for Discovery, ECF No. 336. Magistrate Judge Facciola
promptly resolved the motion in defendant’s favor, noting that
the issue “[w]hether the non-present plaintiffs did or did not
comply with the [administrative-exhaustion] requirements imposed
by the court of appeals is a precise function of what Ware did
or did not do.” Order, ECF No. 348 at 4.
Days before the defendant’s reply brief was due, the
plaintiffs submitted a pleading purporting to “amend” their
opposition to the motion to dismiss, in light of matters that
arose during the deposition of Mr. Ware. See Suppl. Opp’n to Mot., ECF No. 353-1.9 The Court granted extensions of the
9 Days later, on November 8, 2011, the plaintiffs filed a consent motion seeking to dismiss the claims of nineteen plaintiffs “voluntarily, with prejudice.” Pls.’ Mot. to Dismiss, ECF No. 354 at 1. These plaintiffs are: Alphonso Butler; Masood Darsanni; Yvonne Dove; Kim Y. Evans-Herring; Michael Funderburk; Alvin Green; James Griffin; Frentress Hickman; Henry L. Jacobs; Mack Kennedy; Ollie McCoy; Calvin K. Shields, Jr.; Robert Stewart; Kennieth F. Thompson; Jasper Thorne; David A. Trader; Steven Washington; Victoria J. Williams; and Reginald P. Wilson. Id. Due to the convoluted attorney-representation issues that had pervaded this case, the Court ordered the plaintiffs’ counsel to “confirm to the Court, forthwith, via an ECF filing, that they represent the 19 referenced plaintiffs and are authorized, therefore, to move for their voluntary dismissal from the case.” Minute Order of November 14, 2011. Upon receipt
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deadline for the defendant to file its reply brief. On December 21, 2011, the plaintiffs again supplemented their opposition to the motion to dismiss. See Notice, ECF No. 361. On December 23, 2011, the defendant filed its reply brief in further support of its motion to dismiss. See Reply in Supp. of Mot. (“Reply”), ECF No. 363. On March 9, 2012, the Court referred the motion to dismiss to Magistrate Judge Facciola for preparation of a report and recommendation. See Minute Order of March 9, 2012.
I. Magistrate Judge Facciola Issues a Second Set of Reports and Recommendations Regarding the Defendant’s Renewed Motion to Dismiss.
Magistrate Judge Facciola issued his Report and Recommendation on December 14, 2012. See R. & R., ECF No. 376 (“ECF No. 376”). Magistrate Judge Facciola began by noting that notwithstanding this Court’s direction that the Fourth Amended Complaint “plead[] subject matter jurisdiction as set forth in the D.C. Circiut’s decision,” Order, ECF No. 271 at 2, “[p]laintiffs often state that they have exhausted their claims, without giving any of the information necessary for the Court to
of this confirmation as to all 19 plaintiffs, ECF No. 356, the Court granted the motion to dismiss. See Minute Order of November 29, 2011. Plaintiffs later filed, on December 21, 2011, a motion seeking to dismiss with prejudice the claims of three additional plaintiffs: John W. Euill, II; Ronald L. Richardson; and Claudette Squires. See Pls.’ Mot. to Dismiss, ECF No. 360. Because this motion contained the requisite confirmation, the Court granted it. See Minute Order of January 3, 2012.
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determine whether or not that is true.” ECF No. at 6 (emphasis in original).
1. Magistrate Judge Facciola Recommends Dismissal of Renewed Claims and Plaintiffs’ Claims Previously Dismissed.
Magistrate Judge Facciola noted at the outset the plaintiffs’ failure to comply with prior warnings to avoid “‘includ[ing] claims that have previously been dismissed.’” Id. at 6 (quoting Minute Order of Feb. 15, 2008). In their Fourth Amended Complaint, the plaintiffs had raised a number of such claims.
First, the plaintiffs reasserted discrimination claims “on behalf of black officers ‘who would otherwise have participated in the promotion process but concluded that participation was futile based on the racist history of the promotion process.’” ECF No. 376 at 7 (quoting Fourth Am. Compl., ECF No. 278 at 21). Judge Facciola found this inappropriate, as this Court had concluded in 2004 that such claims were not viable because the date for opting in to the 2000 Sergeant’s and Lieutenant’s exam was more than 180 days before any plaintiff began counseling under the Congressional Accountability Act, so, by definition, such a claim was not properly exhausted. See id. at 7 (citing Blackmon-Malloy, 338 F. Supp. 2d at 110–12). “That holding was neither addressed nor disturbed on appeal, and therefore must stand,” Magistrate Judge Facciola held. Id. This resulted in a recommendation that these claims, raised by those individuals
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listed in Exhibit 9 to the Fourth Amended Complaint, be dismissed. See id.; Ex. 9 to Fourth Am. Compl., ECF No. 278-9.
Similarly, the plaintiffs renewed their disparate impact claims “which were . . . specifically disallowed by [this Court’s] previous ruling.” Id. (citing Blackmon-Malloy, 338 F. Supp. 2d at 112). Magistrate Judge Facciola reiterated, as this Court had previously found, that “[t]he disparate impact claims were not alleged within 180 days of the first request for counseling, and therefore were not timely.” Id. at 7–8. He therefore recommended their dismissal. See id.; Ex. 4 to Fourth Am. Compl., ECF No. 278-4; Ex. 5 to Fourth Am. Compl., ECF No. 278-5.
Third, Magistrate Judge Facciola found that “a number of plaintiffs 1) were voluntarily dismissed from the case; 2) indicated they wanted to be dismissed; 3) failed to respond to show cause orders requiring them to assert why they should not be dismissed; or 4) were deemed by both parties to be out of the case for failure to have properly exhausted their administrative remedies.” ECF No. 386 at 8. Magistrate Judge Facciola recommended that each of these plaintiffs remain dismissed— whether the Court granted the request for voluntary dismissal or formally dismissed the plaintiff for failing to show cause. See id. at 8 n.6 (noting that a final order of judgment is not necessary because “‘[w]hen the plaintiff files a notice of
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dismissal before service by the adverse party of an answer or of a motion for summary judgment, the dismissal takes effect automatically.’”) (quoting Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987)). This included plaintiffs Clinton Bradford and Shafton Adams — who failed to respond to orders to show cause, as well as others who had their claims voluntarily dismissed or sought to do so. See id. at 8-9.
2. Magistrate Judge Facciola Recommends Agreeing with the Defendant that More is Needed to Prove that a Claim Was Presented in Counseling and that Specific Notice Was Given During Mediation.
Magistrate Judge Facciola next resolved a legal dispute between the parties regarding what is needed to comply with two of the four requirements set forth in Blackmon-Malloy III for completing counseling and mediation under the Congressional Accountability Act—(1) proving that a particular claim was brought to counseling within 180 days of its occurrence; and (2) providing notice of the claim to the Capitol Police Board upon request during mediation. Id. at 10. Magistrate Judge Facciola rejected plaintiffs’ reliance upon Title VII exhaustion requirements—which permit, among other things, vicarious exhaustion—because “plaintiffs cannot rely on the properly noticed claims of their fellow officers,” cannot “simply say ‘this claim was timely exhausted’ without putting forth any evidence showing as much,” and must recognize that “[w]hen
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timely satisfaction of an administrative regime is jurisdictional, dates and details matter.” Id. at 10–11.
Magistrate Judge Facciola found this inquiry necessary under the Court of Appeals’ decision in Blackmon-Malloy III, and noted that “[i]t would defeat the purpose of the [Congressional Accountability Act’s] administrative regime if a group of 200+ claimants were deemed to have put the defendant on sufficient notice of their claims merely because their attorney said that ‘these 150 experienced a racial slur’ or that ‘these 100 were unfairly disciplined’ without providing any indication of when those events allegedly occurred.” Id. at 11. Without more, the plaintiffs cannot be said to have provided notice that would permit their employer “to determine what went wrong and how any violations could be remedied.” Id. Magistrate Judge Facciola also rejected the plaintiffs’ attempt to shift the blame for any deficiency to the Office of Compliance for failing to ask for more specificity: “Because the plaintiffs bear the burden of proof with regards to jurisdiction, which includes showing that each claim was timely brought and properly noticed, plaintiffs must be able to show 1) exactly when the event occurred; and 2) that all subsequent steps of the administrative process were satisfied.” Id. at 12.
Magistrate Judge Facciola recognized the difference between a hostile-work-environment claim and a discrimination claim. A
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hostile work environment claim would require only that “an officer sought counseling within 180 days of any act that contributed to the hostile work environment claim.” Id. Nonetheless, he found that this was not a license to recast discrete-act claims under the hostile-work-environment framework in the Fourth Amended Complaint. See id. Rather, “[u]nless raised as such at the administrative level, and without any evidence affirming exhaustion of that specific claim, any hostile work environment claims now asserted by the plaintiffs cannot possibly be considered in a manner consistent with the court of appeals’ determination that the exhaustion requirements are jurisdictional.” Id. at 12–13. Magistrate Judge Facciola found “a genuine factual dispute” whether Mr. Ware had raised such a claim on behalf of those plaintiffs who went to counseling in April 2001. See id. at 13. He did not need to resolve this dispute at the pleading stage, but noted that it was nonetheless necessary at this stage that “individual plaintiffs must have raised information sufficient to put the defendant on notice of his or her hostile work environment claim during the administrative process.” Id. at 13-14.
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3. Magistrate Judge Facciola Analyzes Individual Plaintiffs Over Whom There Is At Least Arguable Dispute.
In view of the large number of plaintiffs for whom absolutely no information was supplied, Magistrate Judge Facciola did not discuss every single plaintiff’s individual scenario. See generally ECF No. 376. He first explained why plaintiffs’ general approach of discussing in the Fourth Amended Complaint a few discrete events and then attaching a list of names purporting to be evidence that each plaintiff listed had suffered a similar harm failed. “[T]his approach fails in two respects: 1) it does not follow the strict instructions of the Court of Appeals or [this Court] that each claim for each plaintiff must be stated with specificity, and must include the relevant dates and timeliness under the [Congressional Accountability Act]; and (2) it provides no factual support upon which any reasonable court could determine whether a claim was properly exhausted.” Id. at 15–16. He therefore concluded that “the vast majority of the plaintiffs are unable to satisfy their burden for each of their claims.” Id. at 16.
Magistrate Judge Facciola then proceeded to discuss twentyfive individual plaintiffs who presented unique issues. See id. at 17–38. He attached to his Report a list naming those plaintiffs and stating that he recommended they should be permitted to proceed. See id. at 40.
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4. Magistrate Judge Facciola Issues Two Supplemental Reports and Recommendations.
On January 4, 2013, Magistrate Judge Facciola issued a separate Report and Recommendation addressing the claims of Derrick Macon, who has proceeded pro se in this case. See Macon Report & Recommendation, ECF No. 378. In his initial Report, Magistrate Judge Facciola noted the need for clarification regarding five plaintiffs. See ECF No. 376 at 17–18, 22, 24–25, 33–35, 41. After receiving supplemental materials from the parties regarding those plaintiffs, Magistrate Judge Facciola issued a supplemental report and recommendation regarding the issues raised in his December 14, 2012 report. See Suppl. Report & Recommendation, ECF No. 389.
J. The Plaintiffs Object to the Reports and Recommendations, and Subsequently Seek Leave to File a Fifth Amended Complaint.
The plaintiffs (represented by the Gebhardt Attorneys and Mr. Johnson) timely objected to Magistrate Judge Facciola’s December 14, 2012 Report and Recommendation and his March 7, 2013 Supplemental Report and Recommendation. See Pls.’ Objs. to R. & R., ECF No. 386; Pls.’ Objs. to Suppl. R. & R., ECF No. 390. Officer Macon also timely objected to the Report and Recommendation regarding his claims. See Macon Objs. to R. & R., ECF No. 384. The defendant filed a response to Officer Macon’s objections on April 1, 2013, and to the plaintiffs’ objections
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on May 3, 2013. See Response to Macon Objs., ECF No. 391; Response to Pls.’ Objs., ECF No. 394.
Just over two months after the briefing of the plaintiffs’ objections to Magistrate Judge Facciola’s reports and recommendations had become ripe, the plaintiffs moved for leave to file a Fifth Amended Complaint. See Mot. for Leave, ECF No. 396. The plaintiffs asserted that although “[t]he proposed Joint Fifth Amended Complaint adds absolutely no information or allegations that have not already been presented to the Court in previous Complaints and/or Plaintiffs’ Opposition to Defendant’s 2010 Motion to Dismiss and the Exhibits filed therewith,” it was needed “in order to clarify for the Court which Plaintiffs remain in the case and how each of them exhausted their administrative remedies.” Mem. in Supp. of Mot. for Leave, ECF No. 396-1 at 1. The defendant opposes that motion. See Opp’n to Mot. for Leave, ECF No. 398. The plaintiffs filed a reply brief in further support of their motion. See Reply in Supp. of Mot. for Leave, ECF No. 400.
K. Attorney Representation Issues Arise Once More. On April 21, 2015, the Gebhardt Attorneys filed a motion for leave to withdraw from representation of the plaintiffs. See Mot. to Withdraw, ECF No. 401. They asserted that the law firm of which they had once been members had “ceased to exist on May 31, 2014” and that the various attorneys no longer have the
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resources necessary to prosecute this case. See id. at 2. In view of this filing, the Court held a status hearing on April 30, 2015. During that status hearing, the Court inquired of those plaintiffs who were present how much time they needed to attempt to secure new counsel; and an approximate deadline of October 15, 2015 was agreed upon, subject to the potential need for an extension if representation was difficult to secure. See Minute Order of May 1, 2015. The Court then entered a Minute Order directing the plaintiffs’ counsel to file a motion to withdraw from representation by May 29, 2015, staying the case until further Order of the Court, and scheduling a status hearing for October 15, 2015. See Minute Order of May 1, 2015.
The Court subsequently received a letter from plaintiff Duvall Phelps, asserting his disagreement with the Gebhardt Attorneys’ request, and other disputes with those attorneys. See Letter, ECF No. 404. The Gebhardt attorneys also filed their motion to withdraw, along with signed forms from certain plaintiffs consenting to the withdrawal. See First Mot. to Withdraw, ECF No. 405; Second Mot. to Withdraw, ECF No. 406; First Suppl. Notice, ECF No. 407; Second Suppl. Notice, ECF No. 408. The Court held an additional status hearing on June 12, 2015. See Minute Entry of June 12, 2015. On June 15, 2015, the Court entered the following Minute Order memorializing those proceedings:
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The Court enters this Minute Order to memorialize the discussion held on the record during the June 12, 2015 status hearing, and to govern further proceedings in this case. First, as the Court indicated during the status hearing, the Court intends to issue a written opinion providing the Court’s reasoning and intended resolution of the pending objections to Magistrate Judge Facciola’s Report and Recommendation regarding the defendant’s motion to dismiss and the plaintiffs’ pending motion for leave to file an amended complaint. In view of the ongoing representation issues regarding the many plaintiffs currently represented by Joseph Gebhardt and members of his former law firm, the Court will delay entry of any final order and stay the effectiveness of this opinion pending resolution of those representation issues. No party raised any objection to the Court proceeding in this manner during the June 12, 2015 status hearing. Second, as discussed during the status hearing, Attorney Joseph Gebhardt and members of his former law firm seek to withdraw from representing the plaintiffs they have represented in this case. Further, Mr. Nathaniel Johnson—who currently represents a number of other plaintiffs, as reflected in the list of plaintiffs recited on the record by defendant’s counsel during the status hearing—may intend to withdraw from representation of one of his clients, Frank Adams, who expressed his current opposition to such a request. These representational issues shall be governed as follows: Any attorney who seeks to withdraw as counsel for one or more of his or her clients shall forthwith contact Bar Counsel for the District of Columbia to discuss the attorney’s responsibilities with respect to withdrawing from representation in this case and facilitating his or her client's ability to continue to prosecute this case. Any attorney seeking to withdraw as counsel for one or more of his or her clients shall also read and follow every portion of the following legal provisions—as well as any others that Bar Counsel may indicate are appropriate—Local Civil Rule 83.6, D.C. Rules of Professional Responsibility 1.1 and 1.16. In view of the admitted inadequacy of the notice provided thus far, Attorney Gebhardt and members of his former law firm shall ensure that all of their clients receive the complete notice of the pending request for withdrawal as well as an appropriate explanation of the client’s rights and responsibilities regarding further prosecution of this action, by first-class mail and
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certified mail, to the last-known address of each client, in accordance with the discussion held during the June 12, 2015 status hearing. Minute Order of June 15, 2015. For those reasons, the Court proceeds to express its intended resolution of all matters currently pending before the Court other than the attorneyrepresentation issues. As the Court’s Minute Order suggested, these rulings will not become effective, nor will a Final Order effectuating them be entered, until the various representation issues are resolved. The parties will be permitted a reasonable period of time to resolve the representation issues. II. Motion for Leave to File a Fifth Amended Complaint The plaintiffs ask this Court for leave to file a Fifth Amended Complaint, which, plaintiffs admit, “adds absolutely no information or allegations that have not already been presented to the Court in previous Complaints and/or Plaintiffs’ Opposition to Defendant’s 2010 Motion to Dismiss and the Exhibits filed therewith.” Mot. to Amend, ECF No. 396-1 at 1. The purpose plaintiffs proffer for seeking to file a Fifth Amended Complaint is instead “to clarify for the Court which Plaintiffs remain in the case and how each of them exhausted their administrative remedies.” Id. The defendant opposes the motion, calling it “a last ditch attempt to avoid the recommendations proposed by Magistrate Judge Facciola” and arguing that granting leave to amend “will unnecessarily delay
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this case and prevent the parties from moving forward with a
defined set of individuals whose claims meet the required
jurisdictional threshold . . . all while wasting over three
years of judicial resources.” Opp’n to Mot. to Amend, ECF No.
398 at 1. The Court agrees with the defendants.
Federal Rule of Civil Procedure 15(a)(2) governs requests for
leave to amend a complaint before trial, but after the brief
period during which amendment may be filed as a matter of
course. Fed. R. Civ. P. 15(a)(2). It provides that “a party may
amend its pleading only with the opposing party's written
consent or the court’s leave. The court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Supreme
Court has set forth the generally liberal policy in favor of
allowing amendments, with important limitations:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
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Foman v. Davis, 371 U.S. 178, 182 (1962); see also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1487 (3d ed. 2015) (“The liberal amendment policy prescribed by Rule 15(a) does not mean that leave will be granted in all cases.”). “[U]nder Rule 15, ‘the non-movant generally carries the burden in persuading the court to deny leave to amend.’” Heller v. District of Columbia, 290 F.R.D. 1, 3 (D.D.C. 2013) (quoting Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004)).
Timeliness is a relative consideration, and “[i]t would be unreasonable to restrict a party’s ability to amend to a particular stage of the action inasmuch as the need to amend may not appear until after discovery has been completed or testimony has been taken at trial.” 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1488 (3d ed. 2015). A request to amend, nonetheless, “should be made as soon as the necessity for altering the pleading becomes apparent”: “A party who delays in seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court denying permission because of the passage of time.” Id. (emphasis added). In this Circuit, “[a]bsent evidence of prejudice, delay . . . cannot justify denying a motion to amend to clarify the legal basis for a complaint.” Harrison v. Rubin, 174 F.3d 249, 250 (D.C. Cir. 1999); see also Caribbean Broad. Sys. v. Cable & Wireless, PLC, 148 F.3d 1080, 1084 (D.C. Cir. 1998) (“The length
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of a litigation is relevant only insofar as it suggests either bad faith on the part of the moving party or potential prejudice to the non-moving party should an amendment be allowed.”) (internal citation omitted). Accordingly, “the significance of a delay depends on the prejudice it causes.” Heller, 290 F.R.D. at 4. This requires that the Court inquire into “the position of both parties and the effect the request will have on them,” including “the hardship to the moving party if leave to amend is denied, the reasons for the moving party failing to include the material to be added in the original pleading, and the injustice resulting to the party opposing the motion should it be granted.” 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1487 (3d ed. 2015).
That the plaintiffs have delayed in presenting their Fifth Amended Complaint is undisputed — they admit that the Complaint “adds absolutely no information or allegations that have not already been presented to the Court in previous Complaints and/or Plaintiffs’ Opposition to Defendant’s 2010 Motion to Dismiss and the Exhibits filed therewith.” Mot. to Amend, ECF No. 396-1 at 1. Plaintiffs’ opposition to the motion to dismiss was filed on March 1, 2011; plaintiffs’ motion to amend was filed on July 10, 2013—over two years later.
Plaintiffs do not explain this delay at all. Nor is this “a case where facts unearthed during discovery revealed new claims
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or defects in the pleadings.” Heller, 290 F.R.D. at 4. The purpose plaintiffs proffer for seeking to file a Fifth Amended Complaint is only “to clarify for the Court which Plaintiffs remain in the case and how each of them exhausted their administrative remedies.” Mot. to Amend, ECF No. 396-1 at 1. But that is the issue that has been before this Court and the Court of Appeals in various postures for some time. An issue, moreover, on which the Court long ago directed the plaintiffs to provide much-needed clarity. See March 5, 2010 Order, ECF No. 271 at 2 (directing the plaintiffs to submit a Fourth Amended Complaint “pleading subject matter jurisdiction as set forth in the Court of Appeals’ decision for individual and class claims” and including “a comprehensive list of plaintiffs/class members”). Plaintiffs fail to explain coherently why they did not include this clarifying information in the Fourth Amended Complaint that this Court required them to file in 2010.
Plaintiffs’ delay would plainly prejudice the defendant by subjecting the defendant to extremely burdensome additional litigation and nullifying three years’ worth of work by the parties and the Magistrate Judge. Such circumstances constitute prejudicial delay. See, e.g., Doe v. Cassell, 403 F.3d 986, 991 (8th Cir. 2005) (finding prejudicial delay where the district court had previously directed the plaintiffs to submit an amended complaint explaining more clearly the particular
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defendants sued and the acts or omissions affiliated with each defendant, but the plaintiff failed to do so in filing an amended complaint and sought later to amend once more); Nat’l Sec. Counselors, 960 F. Supp. 2d 101, 135 (finding prejudicial delay where the plaintiff had long been aware of the facts it sought to add and “had over sixteen months to seek an amendment” but “chose not to do so, waiting until five weeks after the Court ruled on the motion to dismiss to seek such an amendment”). This is all the more so where the relevant facts have been known previously and the plaintiff offers little reason for the delay in presenting those facts. See Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987) (affirming denial of leave to amend “when so much time has passed and where the movant has had abundant opportunity over the course of a half-dozen years to raise the issue”); Howard v. Blank, 891 F. Supp. 2d 95, 101–02 (D.D.C. 2012) (noting “that the relevant facts have been known since the 1990s,” and the plaintiffs had not “offered any justification for failing to add these counts despite two prior opportunities to amend.”), aff’d in relevant part, rev’d on other grounds sub nom. Howard v. Pritzker, 775 F.3d 430 (D.C. Cir. 2015).
Indeed, it was only after the expenditure of significant resources by the parties and the Magistrate Judge that the plaintiffs deemed it appropriate to seek to amend their
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Complaint yet again to clarify matters to which the Court of Appeals and this Court had directed their attention years earlier. The plaintiffs filed their Fourth Amended Complaint in 2010 in response to the Court’s direction to clarify these very same issues; the parties briefed the defendant’s motion to dismiss between 2010 and 2011, with the plaintiffs filing numerous supplements and amendments to their opposition; the parties took jurisdictional discovery in 2011; Magistrate Judge Facciola issued three comprehensive Reports and Recommendations recommending dismissal of all but a few claims in 2012 and 2013; and the parties fully briefed the plaintiffs’ objections to those reports in 2013. Only after all of those events had occurred did the plaintiffs seek leave to submit a Fifth Amended Complaint, which would happen to have the effect of mooting the defendant’s motion to dismiss—the motion that Magistrate Judge Facciola has recommended that this Court grant.
Not only would plaintiffs’ unexplained and extensive delay prejudice the defendant, while denial of the motion for leave would, based on their own statements, appear to be of minimal harm to the plaintiffs, but the Court is also concerned as to the true purpose of the motion. “‘[C]ourts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [or] to
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present theories seriatim in an effort to avoid dismissal.’” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d at 133 (D.D.C. 2013) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006)). Such tactics are especially concerning when a plaintiff appears to be using a request for leave to amend as a means to evade prior unfavorable rulings. See id. at 134 (“When a plaintiff seeks leave to amend its complaint in ‘an attempt to evade the effect of [an Opinion] dismissing the plaintiff’s claims . . . the request will be denied.’”) (quoting Kurtz v. United States, No. 10-1270, 2011 WL 2457923, at * 1 n.1 (D.D.C. June 20, 2011)(internal citation omitted)). Waiting until the issuance of a “ruling upon dispositive motions,” therefore, “has been considered an undue delay.” Becker v. District of Columbia, 258 F.R.D. 182, 185 (D.D.C. 2009).
Two factors lead the Court to conclude that plaintiffs’ motion for leave is in fact a bad-faith attempt to make the complaint a moving target and thereby evade Magistrate Judge Facciola’s recommendation that this Court grant the motion to dismiss. First, the timing of plaintiffs’ request to amend. It was filed only shortly after the parties concluded briefing of the plaintiffs’ objections to Magistrate Judge Facciola’s Reports and Recommendations, even though the need for clarity regarding the administrative-exhaustion issue had been apparent since at least 2010. Second, the absence of any explanation of the reason
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for the delay. If the proposed Fifth Amended Complaint does not present any new evidence or legal theory to the Court, includes information that could have been put into an amended complaint much earlier, and does not articulate any reason for plaintiffs’ delay, the reasonable conclusion is that the defendant is correct: The motion is “a last ditch attempt to avoid the recommendations proposed by Magistrate Judge Facciola.” Opp’n to Mot. to Amend, ECF No. 398 at 1. For this additional reason, the Court finds that plaintiffs have unduly delayed such that their motion should be denied.
The prejudice to the plaintiffs of denying leave, moreover, appears relatively minimal as they admit that the amendment “adds absolutely no information or allegations that have not already been presented to the Court in previous Complaints and/or Plaintiffs’ Opposition to Defendant’s 2010 Motion to Dismiss and the Exhibits filed therewith.” Mot. to Amend, ECF No. 396-1 at 1. This assertion is remarkably similar to that of plaintiffs whose request for leave was denied in Barry v. Wing Mem’l Hosp. 142 F. Supp. 2d 161 (D. Mass. 2001). In that case, the amendment “would not assert any new claims or legal theories on which recovery could be granted,” but the plaintiffs claimed it would “‘amplif[y] those alleged facts which form the basis’ of [plaintiff’s] pre-existing claims.” Id. at 168. As the court held in Barry, “[t]hese facts have been thoroughly amplified
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through discovery and the summary judgment motions; amending the claims to include those amplifications would not stave off summary judgment.” Id. So too here. Any reorganization to “clarify” facts already presented to the Magistrate Judge and this Court is unnecessary.
* * * For all of these reasons, the Court will DENY plaintiffs’ motion for leave to file a Fifth Amended Complaint. III. Motion to Dismiss The administrative-exhaustion issues raised by the parties’ pleadings are largely, though not exclusively, questions of the application of the Court of Appeals’ legal standard to the facts alleged and proffered by each of the many plaintiffs in this case. The parties, however, do disagree as to portions of the legal standard. Accordingly, the remainder of the Court’s Opinion proceeds as follows: In Part A, the Court briefly discusses the relevant Standards of Review. In Part B, the Court resolves a number of other disputes regarding the Court’s previous dismissal of claims on grounds that were never appealed to the Court of Appeals. In Part C, the Court reviews the legal standard for administrative-exhaustion under the Congressional Accountability Act as set forth by the Court of Appeals and resolves the parties’ disputes about that standard’s application. In Part D, the Court addresses the application of
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these legal standards to the plaintiffs in this case. In Part D, the Court addresses all 312 plaintiffs. Finally, for ease of reference, Appendix I to this Memorandum Opinion contains a chart listing the disposition of each plaintiffs’ claims and the reasons therefore. Appendix II lists the remaining plaintiffs and their viable claims.
A. Standard of Review 1. Objections to a Magistrate Judge’s Report and Recommendation.
Pursuant to Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered a recommended disposition, a party may file specific written objections. The district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to,” and “may accept, reject or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3). Proper objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for objection.” Local R. Civ. P. 72.3(b). As numerous courts have held, “objections which merely rehash an argument presented to and considered by the magistrate judge” are not properly objected to and are therefore “not entitled to de novo review.” Morgan v. Astrue, Case No. 08–2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009) (collecting cases). Likewise, the Court need not consider cursory objections made
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only in a footnote. Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J. concurring) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”)(internal citations omitted).
2. Motion to Dismiss for Lack of Subject-Matter Jurisdiction.
A federal district court may only hear a claim over which it has subject matter jurisdiction; therefore, a Rule 12(b)(1) motion for dismissal is a threshold challenge to a court’s jurisdiction. Fed. R. Civ. P. 12(b)(1). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). That burden must be established by a preponderance of the evidence. Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 87 (D.D.C. 2010). In evaluating the motion, the Court must accept all of the factual allegations in the complaint as true and give the “plaintiff the benefit of all inferences that can be [drawn] from the facts alleged.” Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)(internal citation omitted). The Court is “not required . . . to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Cartwright Int’l Van Lines, Inc. v. Doan, 525 F.
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Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks omitted). However, because the plaintiff bears the burden, the “factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Gordon, 750 F. Supp. 2d at 87 (internal citations omitted). Finally, to resolve a 12(b)(1) motion, the Court “‘may consider materials outside of the pleadings.’” Id. (quoting Jerome Stevens Pharm, Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Plaintiffs and Claims Previously Dismissed from this Case.
Magistrate Judge Facciola correctly found that plaintiffs’ Fourth Amended Complaint sought to raise claims and plaintiffs that had previously been dismissed from this case on grounds that were neither appealed from nor otherwise challenged. See supra at 25-26. Other than asserting these claims on behalf of some officers, the plaintiffs did not object to his recommendation that the disparate-impact claims be dismissed because they had previously been dismissed by this Court. R. &. R., ECF No. 376 at 7-8; see generally ECF No. 386. Accordingly, the Court ADOPTS the dismissal of the disparate-impact claims raised by plaintiffs in Exhibits 4 and 5 to the Fourth Amended Complaint. To the extent a plaintiff asserts one of these claims only, that plaintiff is accordingly DISMISSED from this case.
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The plaintiffs did object to Magistrate Judge Facciola’s dismissal of claims of those who chose not to participate in the 2000 Promotions Process. But, as Magistrate Judge Facciola found, this Court’s prior ruling on this issue was not challenged or disturbed on appeal and the plaintiffs have not moved for relief or reconsideration. ECF No. 376 at 7. Plaintiffs offer no reason why this finding must be altered— beyond a general assertion that their success in appealing other legal rulings of this Court somehow vacates the rulings they chose not to appeal. ECF No. 386 at 25-26. This argument is unpersuasive and provides no authority for the proposition that the Court of Appeals’ partial reversal of this Court’s Order on certain issues somehow vacates all other rulings this Court issued that were not challenged. Accordingly, the Court ADOPTS the dismissal of the claims to the 2000 Promotions Process listed in Exhibit 9 to the Fourth Amended Complaint. To the extent a plaintiff asserts this claim only, that plaintiff is accordingly DISMISSED from this case.
Next, the plaintiffs object to some of Magistrate Judge Facciola’s decisions with respect to plaintiffs who had previously been dismissed from this case, asked to be dismissed, failed to respond to show cause orders, or were admitted by all parties to have failed to exhaust their administrative remedies. The plaintiffs appear only to challenge the findings with
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respect to those who did not respond to show cause orders and who asked to be, but were not formally, dismissed from the case. See ECF No. 386 at 16.
As for the plaintiffs who sought to be voluntarily dismissed, only later to join in the notice of appeal from this Court’s administrative-exhaustion ruling, Pls.’ Objs., ECF No. 386 at 17, the Court agrees with the defendant that the plaintiffs failed to explain any challenge to Magistrate Judge Facciola’s legal conclusion that those plaintiffs who asked to be dismissed from the case were barred from the case. See Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987) (“When the plaintiff files a notice of dismissal before service by the adverse party of an answer or of a motion for summary judgment, the dismissal takes effect automatically.”).
As for Shafton Adams and Clinton Bradford, who “failed to respond to the District Court’s April 17, 2008 Order to show cause why they should not be dismissed”, plaintiffs appear to argue that those individuals are still part of the case because they do not recall receiving the Show Cause Order and no final order was issued dismissing them for failing to respond to the Show Cause Order. ECF No. 386 at 18-19. They offer no legal authority for this proposition — as defendant notes, they were represented by counsel — and the Court further finds no reason to disagree with the Magistrate Judge’s conclusion that their
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failure to respond to the show-cause order must result in their dismissal from this case and that nothing in the Court of Appeals remand allows them to rejoin this case.
C. Administrative Exhaustion under the Congressional Accountability Act.
The Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq., “extend[s] the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch.” BlackmonMalloy III, 575 F.3d at 701. Subchapter IV of the Act (Sections 1401–1416) governs the procedures for the administrative processing of any disputes under the Act. As relevant here, it sets forth “a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief.” Id. The employee must first engage in counseling regarding her particular complaint. Then, she must proceed to mediation. Upon completion of mediation, she may elect to file suit in federal court.
In determining whether the employee “has completed counseling and mediation,” 2 U.S.C. § 1408(a), as required to file a lawsuit, the Court is not empowered to examine what actually transpired in any counseling or mediation session or to determine the effectiveness of those sessions. Blackmon-Malloy III, 575 F.3d at 711–12. Rather, “the reference in section
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1408(a) to ‘completed counseling . . . and mediation’ means no more than that[: (1)] the employee timely requested counseling and mediation, [(2)] that the employee did not thwart mediation by failing to give notice of his or her claim upon request, [(3)] that the mandated time periods have expired, and [(4)] that the employee received end of counseling and mediation notices from the Office.” Id. at 713.
1. The Counseling Requirement The first step an employee must take is “counseling as provided in section 1402.” 2 U.S.C. § 1401(1). “‘[T]o commence a proceeding,’ the employee must request counseling within 180 days of the date of the alleged violation of a law made applicable by the [Congressional Accountability Act].” BlackmonMalloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1402(a)). “As regards counseling, ‘[t]he Office shall provide the employee with all relevant information with respect to the rights of the employee.’” Id. at 702 (quoting 2 U.S.C. § 1402(a)). “The [Congressional Accountability Act] further provides that ‘[t]he period for counseling shall be 30 days unless the employee and the Office agree to reduce the period.’” Id. (quoting 2 U.S.C. § 1402(b)). The Court of Appeals held that the counseling requirement does not encompass a requirement that the complaining employee be physically present for counseling, “[g]iven the limited purpose of counseling to provide the
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employee with information about his or her rights and the limited benefit that would inure to the employee or the Office from performing this function in person.” Id. at 708. Finally, “[t]he Office must ‘notify the employee in writing when the counseling period has ended.’” Id. (quoting 2 U.S.C. § 1402(c)).
2. The Mediation Requirement The second step that an employee must take is “mediation as provided in section 1403.” 2 U.S.C. § 1401(2). “‘[N]ot later than 15 days after receipt . . . of notice of the end of the counseling period . . . but prior to and as a condition of making an election under section 1404,” the employee must “file a request for mediation with the Office.’” Blackmon-Malloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1403(a)). “Mediation ‘may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director’ of the Office, but ‘shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office.’” Id. (quoting 2 U.S.C. § 1403(b)(1), (2)). “The mediation period ‘shall be 30 days,’ which may be extended upon joint request of the parties, and (as with counseling) the Office must ‘notify in writing the covered employee and the employing office when the mediation period has ended.’” Id. (quoting 2 U.S.C. § 1403(c)).
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Just as for counseling, mediation need not involve the complaining individual’s physical presence. See id. at 710.
3. Election The third and final step is “election, as provided in section 1404 . . . of either . . . a formal complaint and hearing . . . subject to Board review . . . and judicial review in the United States Court of Appeals for the Federal Circuit . . . or . . . a civil action in a district court of the United States as provided in section 1408.” 2 U.S.C. § 1401(3); see also Blackmon-Malloy III, 575 F.3d at 702. If the civil-action route is chosen, the three-step procedure constitutes a jurisdictional requirement. The Congressional Accountability Act declares that “[t]he district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 . . . by a covered employee who has completed counseling under section 1402 . . . and mediation under section 1403 . . . . A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation.” 2 U.S.C. § 1408(a). This language, combined with its location in a section entitled “jurisdiction,” led the Court of Appeals to hold that “it is apparent from the plain terms of the text that Congress intended counseling and mediation to be jurisdictional requirements.” Blackmon-Malloy III, 575 F.3d at 705. Accordingly, district courts are “not
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empowered to apply the equitable doctrine of vicarious exhaustion to excuse compliance.” Id. at 706.
D. The Plaintiffs Misinterpret the Jurisdictional Requirements of Exhaustion under the Congressional Accountability Act.
Although the Court of Appeals appeared to have resolved the legal issues previously raised by the plaintiffs regarding administrative exhaustion in this case, the plaintiffs have raised yet more disputes. Their concern relates to precisely what they must do to demonstrate compliance with two parts of the analysis prescribed by the Court of Appeals: (1) showing that they alleged during counseling violations that occurred within 180 days of proceeding to counseling; and (2) showing that they did not thwart mediation and provided notice of their individual claims upon request. See Blackmon-Malloy III, 575 F.3d at 713. The defendant argues that, given that administrative exhaustion is a jurisdictional requirement, the plaintiffs bear the burden of presenting to this Court material that could support a finding that each claim of each plaintiff related to an action that occurred within the counseling timeframe and that if the Capitol Police Board asked for notice of that plaintiff’s claim, such notice was provided. See ECF No. 394 at 5-6.
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As to the timeliness requirement, although they assert that the plaintiffs that remain in the case timely requested counseling, plaintiffs’ counsel state that they
attempted to contact all of the remaining Plaintiffs to ascertain whether they are interested in remaining in the case, to ascertain precisely their claims, and to determine whether their claims arose during the 180 days preceding their requests for counseling. Due to the passage of time since this case began, 12 years ago, many of the Plaintiffs were unable to recall with sufficient specificity the time period during which they suffered discriminatory treatment; and others were simply unavailable to counsel. ECF No. 386 at 4. Moreover, plaintiffs assert that for the remaining plaintiffs, exhaustion of remedies is either indisputable, or the individual Officer’s declarations attached to the plaintiffs’ opposition to the motion to dismiss “describe the discriminatory events that occurred within 180 days of their requests for counseling.” Id. at 5. To prove that a particular claim was timely raised in counseling, however, the plaintiffs cannot rely upon blanket statements that all plaintiffs exhausted their administrative remedies nor on declarations in which an officer asserts that she timely sought counseling without specifying the date upon which the alleged violation occurred. This Court has indicated as much on many occasions, yet plaintiffs persist in using vague language to describe their claims. See generally Fourth Am.
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Compl, ECF No. 278. Moreover, because the plaintiffs are proceeding under a jurisdictional requirement, under Rule 12(b)(1), they bear the burden of establishing, by a preponderance of the evidence, that they sought counseling within 180 days of the alleged violation. See Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 69 (D.D.C. 2011) (dismissing where plaintiff failed to meet his burden of “establish[ing] by a preponderance of the evidence that any one of these discrete incidences of denial of leave or denial of Telework privileges occurred within the 180–day statutory window.”).
As to the notice-of-claim requirement, the plaintiffs respond that mediation is less formal and that parties should not be required to present in mediation excessive detail. In so arguing, the plaintiffs rely on the Court of Appeals’s decision in Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011), which as Magistrate Judge Facciola found, is distinguishable for a number of reasons. Artis guides this Court insofar as it held that “[w]here counseling produces sufficient information to enable the agency to investigate the claim, th[e] purpose [of counseling] has been served.” Id. at 1035 (quotation marks omitted). “To hold otherwise would turn the informal counseling requirement into a trap for unwary counselees rather than a step toward remediation, and it would violate the principle that
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Title VII’s exhaustion requirement should not be read to create useless procedural technicalities.” Id. A plaintiff therefore must provide notice of her individual claim upon request, but need not provide exhaustive detail.
Plaintiffs err in relying on Artis for the proposition that their class-wide presentation of general grievances, along with a handful of instances of individual allegations, was sufficient to exhaust administrative remedies for each and every plaintiff. Such a procedure was sufficient in Artis because the case arose under Title VII, which permits the theory of vicarious exhaustion that the plaintiffs appear to be raising. See Artis, 630 F.3d at 1039. There, class representatives had initiated
class-wide counseling by presenting a document that claimed the Board paid them lower salaries than non-minority secretaries, awarded them fewer and smaller bonuses, granted them fewer promotions, deflated their performance appraisals, denied them privileges and training that non-minority secretaries enjoyed, unfairly enforced leave procedures against them, and discriminated against them in the quantity and quality of work assignments.
Id. at 1033. As the Court of Appeals held, however, vicarious exhaustion is inapplicable to the Congressional Accountability Act. See Blackmon-Malloy III, 575 F.3d at 706. So while this Court must keep in mind Artis’ suggestion that plaintiffs not be required to present too much information during counseling, the
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Court cannot find that plaintiffs’ presentation of a class-wide complaint similar to that utilized in Artis served to exhaust administrative remedies for a single plaintiff.
As to which officers received end of mediation notices and made timely elections pursuant to 2 U.S.C. § 1404, plaintiffs, relying on the declaration of Charles Jerome Ware, Esq., who represented the plaintiffs during the administrative process, assert that “[t]here can be no serious dispute” that the plaintiffs “received end of mediation notices, and [ ] made timely elections pursuant to section 1404” of the CAA. ECF No. 386 at 2. In his declaration, Mr. Ware states that he prepared an administrative complaint which was presented to the Office of Compliance on April 12, 2001, at which time counseling was also requested. ECF No. 331-3, Ex. 8 at 1. The fifteen count administrative class-action complaint alleged the following: (1) racial discrimination; (2) sex/gender discrimination; (3) abusive discharge; (4) civil conspiracy; (5) intentional infliction of emotional distress and/or mental distress or anguish; (6) disparate treatment/hostile work environment; (7) sexual harassment; (8) discrimination in promotions based on race and color; (9) discrimination in promotions based on sex; (10) discrimination in hiring based on race and color; (11) discrimination in assignments based on sex; (12) discrimination in assignments based on race and color; (13) discrimination in
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hiring based on sex; (14) discrimination in discipline based on race and color; (15) reprisal and/or intimidation. ECF No. 3311, Ex. 7. The Administrative Complaint includes lists of complainants categorized by claim. ECF No. 353-4, Ex. 105. Mr. Ware stated that during the first meeting with the Capital Police Board, he informed “counsel and the mediators that all of the Officers were complaining of a hostile work environment” and that some were “complain[ing] of racial discrimination in assignments, discipline, and the promotion process.” ECF No. 331-3 at 5-6.
The Notice of End of Mediation issued August 2, 2001 states that “[t]he subject of the requests for mediation were allegations that the employing office discriminated based on race and sex in violation of Section 201 and retaliation in violation of Section 207 of the Congressional Accountability Act.” Id. at 11. This Notice, as supplemented on August 8, 2001, provides a list of the Officers who completed mediation and accordingly could proceed to filing a formal compliant with the Office of Compliance, or file a civil action in federal Court. Id. at 11-25.
While there is little dispute as to which officers received end of mediation notifications based on the counseling periods that began on April 12, May 9, May 11, and May 15, 2001 for allegations of discrimination based on race and sex, and for
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retaliation, most plaintiffs discussed in detail below have been unable to demonstrate that, pursuant to 2 U.S.C. § 1402(a), they sought counseling with 180 days of the alleged violation of law. As stated above, because the plaintiffs are proceeding under a jurisdictional requirement, under Rule 12(b)(1), they bear the burden of establishing, by a preponderance of the evidence, that (1) they sought counseling within 180 days of the alleged violation(s) of law; and (2) counseling and mediation were completed for the violation(s) alleged.
E. A Review of All 312 Plaintiffs As an initial matter, the Court observes that there is little or no dispute as to the dismissal of the vast majority of the plaintiffs in this case. In particular, 111 plaintiffs have previously been dismissed or have requested that they be dismissed from the case. See infra Section III.E.1. For another 140 individuals who were at some point in time listed as plaintiffs in this case, plaintiffs did not mention them in their objections to Magistrate Judge Facciola’s Report and Recommendation and thus no objection was made to the recommendation that they be dismissed from the case. See infra Section III.E.2. For another 12 plaintiffs, there is no dispute that at least some of their claims should proceed. See infra Section III.E.3. This leaves 49 plaintiffs as to whom there is a dispute as to whether some or any of their claims should
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proceed. See infra Sections III.E.3, 4. For the majority of the plaintiffs as to whom a dispute remains, plaintiffs have failed to demonstrate that the officer requested counseling within 180 days of the date of the alleged violation of a law because they have not provided the date(s) upon which the alleged violation(s) of law occurred, nor have they demonstrated that counseling and mediation were completed for the violation alleged. Following the Court of Appeals’ decision in BlackmonMalloy III, the Court permitted the plaintiffs to take limited jurisdictional discovery “with regard to defendant’s factual attacks on plaintiffs’ exhaustion claims only.” Order, ECF No. 271 at 2. Plaintiffs therefore had ample opportunity to gather evidence demonstrating which claims had been exhausted. As discussed below, the Court has determined that the claims of 24 plaintiffs may proceed. See infra Sections III.E.3, 4; III.F.
1. Plaintiffs Dismissed from the Case A total of 111 plaintiffs have previously been dismissed from the case or have requested that they be dismissed from the case: (1) Shafton Adams10; (2) Charles Akins; (3) Earl Allen; (4) Monica Bailey-Washington; (5) Kenneth Baldwin; (6) Clarence Black; (7) Gayle Boone; (8) Clinton Bradford;11 (9) Grady
10 See supra 48-49. 11 See id.
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Bradford, Sr.; (10) Robert Braswell;12 (11) Sandra Brown-James as to claims in Civil Action No. 01-2221 only; (12) Alphonso Butler; (13) Stephen Cannady; (14) Keith Cathion; (15) Bonnie Chestnut; (16) Joe Christian; (17) Monte Curtis; (18) Ronald Curtis; (19) Masood Darsanni; (20) William C. Davis; (21) Joe Deas; (22) Shawn Deneal; (23) Willie Dickens; (24) Jerry Dickson or Dixon; (25) Raymond Dingle; (26) Yvonne Dove; (27) Marcus Edwards; (28) Keith Emory; (29) John Euill; (30) Kim EvansHerring; (31) Kim Ewings;13 (32) Rhonda Farmer; (33) Michael Funderburk; (34) George Gibson; (35) Eric Graves; (36) Tammie Green as to Civil Action No. 01-2221 only; (37) Alvin Green; (38) Clara Grice-Washington; (39) James Griffin; (40) Derek Hamilton; (41) Moses Hart; (42) Fentress Hickman; (43) Larry Hudson; (44) Kevin Jackson; (45) Meldon Jackson; (46) Henry Jacobs; (47) Carleton Jenkins; (48) Michael Jenkins;14 (49) Thomas L. Jenkins, III; (50) Clarence Jeter, Jr.; (51) Frank
12 Plaintiffs assert that Officer Braswell states a claim for hostile work environment and futility, but do not assert that he exhausted his administrative remedies. See ECF No. 386 at 36. However, Officer Braswell was dismissed from this case in 2007. See Appendix I. 13 Plaintiffs assert that Officer Ewings has a timely claim for discrimination in the promotion process. See ECF No. 386 at 39. However, Officer Ewings was dismissed from this case in 2007. See Appendix I. 14 Plaintiffs assert that Officer Jenkins’ claim for hostile work environment was timely. See ECF No. 386 at 42. However, Officer Jenkins was dismissed from this case in 2007. See Appendix I.
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Johnson; (52) Willie Johnson; (53) Naudain Jones, Jr.; (54) Linval Jones; (55) Mervin Jones; (56) James Kennedy; (57) Mack Kennedy; (58) Michael Killebrew; (59) Dorothy Kyle; Alana Lambert; (60) Janice Landrum; (61) Sylvia Lassiter; (62) Mark Latson (63) Brenda Luckey; (64) Michael Malloy; (65) Ollie McCoy; (66) Samuel McNair; (67) Spiro Mihilis; (68) Alfred Moffat; (69) Luanne Moran; (70) Rodric Myers; (71) Charles Nanton, Jr.; (72) Marcellus Newton; (73) Clarence Nowden; (74) Marvin Patterson; (75) Sherrie Perkins; (76) James Pinnix; (77) Kenneth Pittman; (78) Jacqueline Portee-Raymond; (79) James Powell; (80) Albert Powell, Sr.; (81) James Proctor, Jr.; (82) Barry Rainey; (83) Doris Reid; (84) Ronald Richardson; (85) Thomas Rose; (87) Calvin Shields; (87) Leroy Shields; (88) Conrad Smith;15 (89) Robert Spratt; (90) Claudette Squires; (91) Robert Stewart; (92) Wendell Summers; (93) Gerald Thomas;16 (94) Kennieth Thompson; (98) Jasper Thorne; (99) David Trader; (100) Anthony Washington; (101) Steven Washington; (102) Stephanie Weems; (103) Jolania White-Sharpes (Cobbin); (104) James Whitt;
15 Plaintiffs assert that Officer Smith exhausted his administrative remedies in Civil Action No. 04-320. See ECF No. 386 at 46. However, Officer Smith was dismissed from this case in 2007. See Appendix 1. 16 Plaintiffs assert that Officer Thomas has established a timely claim for discrimination in the opportunities for specialty assignments. See ECF No. 386 at 47. However, Officer Thomas was dismissed from this case in 2007. See Appendix I.
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(105) Daniel Wilkerson; (106) Kado Wilks; (107) Roosevelt Williams; (108) Thomas Williams; (109) Victoria Williams; (110) Reginald Wilson; (111) John Young. The basis for the dismissal for each plaintiff is indicated in Appendix I to this Memorandum Opinion. To clarify the record in this case, and to the extent a prior Order of the Court has not been entered dismissing these plaintiffs from the case, the Court will DISMISS these plaintiffs from the case.
2. Plaintiffs As To Whom No Specific Objection Was Raised in Response to Magistrate Judge Facciola’s Recommendation that the Plaintiff be Dismissed from the Case.17
The 140 individuals listed below were at some point listed as plaintiffs in this case. In their Objections to the Report and Recommendation of the Magistrate Judge, plaintiffs do not address these individuals. See generally ECF No. 386. In his report and recommendations, Magistrate Judge Facciola stated that
[a]ny plaintiffs not discussed in the following paragraphs should be dismissed outright because absolutely no evidence was submitted on their behalf showing 1) that they properly raised their claims in the administrative process; 2) that they exhausted the process; and 3) that they timely proceeded to federal court in either Civil Action No. 01-2221 or one of the consolidated cases.
17 This category does not include plaintiffs who were dismissed from the case as set forth in Section III.E.1. supra.
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ECF No. 376 at 16-17. The plaintiffs listed below were not discussed by Magistrate Judge Facciola. Furthermore, for the plaintiffs listed below, no objection was raised in the Plaintiffs’ Objections to the Report and Recommendation of the Magistrate Judge. See generally ECF No. 386. Therefore, plaintiffs have not objected to Magistrate Judge Facciola’s recommendation that they be dismissed from the case.
Accordingly, the Court will ADOPT the recommendation as to the individuals listed below and they will be DISMISSED from this case: (1) Damon Adams; (2) Twanda Alexander-Wise; (3) Vernon Alston; (4) Marsha Anderson; (5) Audrey Augustus; (6) Sherry Bailey; (7) Daryl Banks; (8) Trenton Bass; (9) Larry Bennett; (10) Lewin Blackston; (11) Shirley Bland; (12) Darrin Bloxson; (13) Eric Boggs; (14) Wilbert Booth, Jr.; (15) Sylvia Bradley; (16) Rani Brooks; (17) Kalyana Byrd; (18) John W. Caldwell, Jr.; (19) Bryan Carter; (20)Pernell Clark; (21) Karen D. Clay; (22) William Cleveland; (23) Luarthur Cochran; (24) Charles Coffer, Jr.; (25) Reginald Collins; (26) Michael Covington; (27) Beverly Davis; (28) William Diggs; (29) Tyrone Dixon; (30) Cheryl Duncan-Woodland; (31) Leo Dunklin; (32)Vanessa H. Edwards; (33) Deforest L. Fleming; (34) Marcus Fleming; (35) Robert Fountain; (36) Larry Gaines; (37) Tierre B. Golsby; (38) Raymond Goodine; (39) James Graham, Jr.; (40) Mark A. Gray; (41) Patrick F. Gray; (42) Larry Grear; (43) Clifford Green; (44) Pamela J. Green;
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(45) Lynwood Guise; (46) David Hamlett; (47) Macco Harper III; (48) Timothy Harrell; (49) John R. Harris, Jr.; (50) Robin Harris-Sanabria; (51) Nikkol P. Hicks; (52) Timothy Hunter; (53) Korey Irby; (54) Bernard Jackson; (55) Edward Jackson; (56) Wainwright Jackson; (57) Gregory Jacobs; (58) Stephen T. James; (59) Denea Jamison; (60) Arva Johnson; (61) Larverne JohnsonReynolds; (62) Ronald P. Jones; (63) Wanda Kennedy; (64) John Lanceslin; (65) Lonnie Lane; (66) Cynthia Lassiter-Norris; (67) Errington Lindo; (68) Anthony Lucas; (69) Clarence Luckey, Sr.; (70) Robert Lumkpin; (71) Sheryl Lutrell; (72) William R. Maedel, Jr.; (73) Daniel Malloy; (74) Joseph Tyrone Marshall; (75) Brandy Martin-Wilcher; (76) David Massie; (77) Dawyna Mauney; (78) Keisha McCatty; (79) Dina McIlwain; (80) Jeanita Mitchell; (81) Jocelyn Moore; (82) Morris Moore, Jr.; (83) Monique Moore; (84) Renoard Moore; (85) Denise Morris; (86) Clark Morton; (87) Adrian Motley; (88) David Nelson; (89) Glenn Newell; (90) Brandell Odom; (91) Paula Orem; (92) Cynthia (Edwards) Parker; (93) Sherrie Parker; (94) Trudy Parker; (95) Antoinette Pettis; (96) Wayne Powell; (97) Paul Proctor; (98) Willie Ragland; (99) Michael Richardson; (100) Ritchie Glenn, Jr.; (101) Darius Rose; (102) Felicia Ross; (103) Lloyd Rudd; (104) Gregory Rush; (105) Daryl Scott; (106) Steven S. Scott; (107) Jeffrey Scruggs; (108) Glynis Senn; (109) Kenneth Shaw; (110) Michael Shirley; (111) Dorman Simmons; (112) Floyd
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Simpson, Jr.; (113)Henry Smith, Jr; (114) Maurita Smith; (115) Samuel Smith; (116) Pinkney Speights; (117) Chauncey Spriggs; (118) Michael Spriggs (Springs?); (119) Reginald M. Straughn; (120) Patricia R. (Sumber) Sumlin; (121) Chadd Sutton; (122) Shelly (Moore) Taylor; (123) Gladys Trader; (124) Tyrone Tucker; (125) Clinton Turner, III; (126) Irvin Washington; (127) Thurston Weaver; (128) James Westbrooks, II; (129) Angela Wheeler; (130) Rita Wheeler; (131) Charles Williams, Jr.; (132) Kathy B. Williams; (133) Malcolm Williams; (134) Stefani Williams; (135) Tanya Williams; (136) Johnny Wilson; (137) Renee Wilson; (138) Spencer Wilson; (139) Robert C. Woodland; (140) Clabe Wright.
3. Plaintiffs Listed by Magistrate Judge Facciola Below, the Court addresses twenty-two individual plaintiffs discussed in detail by Magistrate Judge Facciola.
a. Frank Adams Magistrate Judge Facciola recommends that Lt. Adams’ thirtythree claims in the main case and Mr. Adams’ cases filed pro se that survived in his 2007 Report and Recommendation go forward. ECF No. 376 at 17. Magistrate Judge Facciola notes that the defendant had “previously conceded jurisdiction for Lt. Adams’ hostile work environment and adverse actions claims filed in the main case.” Id. Magistrate Judge Facciola also notes that the defendant had conceded jurisdiction for Lt. Adam’s claims in
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Civil Action Nos. 04-943 and 06-653 for the following claims: (1) non-selection to Johns Hopkins PELP program; (2) nonselection to a management college; (3) non-selection to the FBI Academy; (4) threat of transfer; (5) involuntary transfer; and (6) non-selection to Captain claim. Id.
With regard to Lt. Adams’ claims in the main case, plaintiffs disagree with Magistrate Judge Facciola’s recommendation only as to those of Lt. Adams’ hostile work environment claims that the Magistrate Judge found to be timely in his 2007 Report and Recommendation. ECF No. 386 at 32-33. With regard to Lt. Adams’ claims in Civil Action No. 04-943, plaintiffs, citing Lt. Adams’ declaration, disagree with Magistrate Judge Facciola’s recommendation only as to Lt. Adams’ “claim for a hostile work environment created by the negative remarks of Division Commander Callaway.” Id. at 33. With regard to Lt. Adams’ claims in Civil Action No. 05-491, plaintiffs state that Lt. Adams’ “claims of hostile work environment, including discrimination in training opportunities” should be allowed to proceed. Id. at 3334. With regard to Lt. Adams’ claims in Civil Action No. 06-653, plaintiffs state that Lt. Adams’ claim of a continuing hostile work environment should be allowed to go forward. Id. at 34. The defendant responds that Lt. Adams’ did not exhaust his administrative remedies regarding his claims in Civil Action No 06-0653. ECF No. 394 at 10.
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With regard to Lt. Adams’ claims in the main case, except for Lt. Adams’ claim for hostile work environment created by racist words, it is not clear which of Lt. Adams’ claims in the Fourth Amended Complaint correlate to the claims that Magistrate Judge Facciola recommended survive in his 2007 Report and Recommendation. Compare ECF No. 278 with ECF No. 151-1 and ECF No. 376 at 17-18, App. B. Consequently, by no later than 14 days after the Court issues the Final Order associated with this Memorandum Opinion, plaintiffs shall file a supplemental briefing regarding Lt. Adams’ claims in the main case as set forth in Appendix I to this Memorandum Opinion and identify which claims in the Fourth Amended Complaint correlate to the claims listed in ECF No. 151-1. Following the response and the reply, the Court will determine which of Lt. Adams’ claims in the main case may proceed. The Court will only consider argument on claims in the main case.
b. Sharon Blackmon-Malloy Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Lt. Blackmon-Malloy and the defendant raises no objections. See ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and Lt. Blackmon-Malloy’s claims listed in Attachment II to this Memorandum Opinion may proceed. Lt. Blackmon-Malloy’s remaining claims will be DISMISSED.
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c. Regina Bolden-Whittaker Magistrate Judge Facciola recommends dismissing all of Officer Bolden-Whittaker’s claims in Civil Action No. 01-2221 but that the claim for retaliation for refusing to sign a deputation form in Civil Action 03-2644 be allowed to proceed. See ECF No. 376 at 20-21. Magistrate Judge Facciola states that the defendant conceded that Officer Bolden-Whittaker adequately exhausted her retaliation claim in Civil Action No. 03-2644. Id. at 20. With regard to Officer Bolden-Whittaker’s claim for retaliation for refusing to wear body armor, plaintiffs conceded that she did not request counseling for this claim until September 2001; therefore she did not exhaust her administrative remedies on that claim prior to the filing of this lawsuit on October 29, 2001. Id. at 20-21. Citing her declarations as well as Magistrate Judge Facciola’s prior dismissal based on her failure to attend mediation in person, plaintiffs object only to the dismissal of Officer Bolden-Whittaker’s claims for “hostile work environment, including repeated discriminatory denials of assignment.” ECF No. 386 at 34. Plaintiffs argue that Magistrate Judge Facciola had recommended dismissal of these claims in his 2007 Report and Recommendation because Officer Bolden-Whittaker did not attend mediation in person and since in person attendance is not required per the Court of Appeals’ prior decision in this case,
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this is no longer a reason to dismiss these claims. See id. at 35. Plaintiffs then argue that Officer Bolden-Whittaker’s claim for retaliation for refusal to wear body armor “is not properly part of the main case”, but is properly part of Civil Action No. 03-2264 as part of her continuing retaliatory hostile work environment claim. Id.
The defendant responds that Office Bolden-Whittaker’s “own declaration admits that she did not mediate any of her claims in Civil Action 01-2221 because she was recovering from surgery.” ECF No. 394 at 11. However, what Officer Bolden-Whittaker’s declaration states is that she did not attend a mediation session [in person] because she was recovering from surgery. See ECF No. 331-7, ¶ 7.
With regard to her claim for “hostile work environment, including repeated discriminatory denials of assignment” in one of her declarations, Officer Bolden-Whitaker states that she was discriminated against when she was not considered for a bus driver position in 2000 and that when the same position was announced in January 2001, she did not apply for it because she thought that reapplying would be futile. ECF No. 331-7, Ex. 30 at 1. Her other two declarations do not provide additional information about this claim. See generally ECF No. 331-7, Ex. 29 and 31. The declaration does not provide the specific date upon which the alleged violation occurred. See generally id.
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Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violation alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Bolden-Whitaker sought counseling within 180 days of the alleged violation. With regard to plaintiffs’ argument that Officer Bolden-Whittaker’s claim for retaliation for refusal to wear body armor is properly part of Civil Action No. 03-2644 as part of her continuing retaliatory hostile work environment claim, the complaint in that case does not contain a hostile work environment claim. See generally First Am. Compl., ECF No. 21 in Civil Action No. 03-2644. Accordingly, the Court WILL ADOPT the recommendation. Officer Bolden-Whittaker’s claim for retaliation for refusing to sign a deputation form in Civil Action No. 032264, as listed in Attachment II to this Memorandum Opinion, may proceed. Officer Bolden-Whittaker’s remaining claims will be DISMISSED.
d. Tyrone Brooks Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Officer Brooks and the defendant raises no objections. See ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and Officer Brooks’ claims listed in Attachment II to this
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Memorandum Opinion may proceed. Officer Brooks remaining claims will be DISMISSED.
e. Sandra Brown-James The parties filed a joint praecipe in which they agree that Officer Brown-James exhausted her administrative remedies regarding her claims in Civil Action No. 04-320, but that she did not exhaust her administrative remedies concerning the claims she raised in Civil Action No. 01-2221 and she must be dismissed from that case. See ECF No. 379-2. In his supplemental Report and Recommendation filed March 7, 2013, Magistrate Judge Facciola acknowledged the joint praecipe; however, his recommendation that Officer Brown-James be permitted to proceed on a claim in Civil Action No. 01-2221 is clearly an error. Accordingly, the Court WILL ADOPT IN PART and REJECT IN PART the recommendation. Officer Brown-James’ claim in Civil Action No. 04-320 as listed in Attachment II to this Memorandum Opinion may proceed. Officer Brown-James will be DISMISSED from Civil Action No. 01-2221.
f. Arnold Fields Magistrate Judge Facciola recommends that Officer Fields’ claims in Civil Action No. 01-2221 be dismissed “as no evidence was provided showing those claims were properly exhausted,” but that Officer Fields’ claims in Civil Actions No. 02-1346, 031505, and 03-2644 be allowed to proceed. See ECF No. 376 at 24.
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Citing his declarations, plaintiffs object only to the dismissal of Officer Fields’ claim for hostile work environment and retaliation in Civil Action No. 01-2221 based on events that began in April 2000 through January 2001. ECF No. 386 at 39. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Jones’ declaration does not provide the necessary information. See ECF No. 394 at 24-25.
In his declaration, Officer Fields states that on January 2, 2001, there was an incident that involved a disciplinary charge because he did not wear his badge and that on May 9, 2001, he requested counseling for this incident. ECF No. 332-1, Ex. 42 at 2. Officer Fields asserts that this incident constituted a hostile work environment. Id. This is the only incident discussed in his declaration regarding Civil Action No. 01-2221. See generally id. Although Officer Fields’ declaration refers to an Attachment, that Attachment was not included in the Exhibit. Id.
If Officer Fields requested counseling for this incident on May 9, 2001, his request would have been timely. However, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance
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of the evidence, that Officer Fields sought counseling within 180 days of the alleged violation. The defendant does not object to Mr. Fields proceeding on his claims in Civil Action Nos. 021346, 03-1505, and 03-2644. ECF No. 394 at 23-24. Accordingly, the Court will ADOPT the recommendation and Officer Fields’ claims in Civil Action No. 01-2221 will be DISMISSED. Officer Fields may proceed on the claims in the consolidated cases as listed in Attachment II to this Memorandum Opinion.
g. Gary Goines Magistrate Judge Facciola recommends that all of Officer Goines’ claims in Civil Action No. 01-2221 be dismissed for failure to provide adequate documentation of exhaustion, but that Officer Goines’ claim in Civil Action No. 04-0320 be allowed to proceed. ECF No. 376 at 25. Citing his declaration and the defendant’s prior concession that Officer Goines had timely requested counseling for this claim, plaintiffs object only to the recommended dismissal of Officer Goines’ claim for discrimination and retaliation in the 2000 promotion process. ECF No. 376 at 40. With regard to the prior concession, the defendant “conceded that Officer Goines timely requested counseling regarding his 2000-2002 promotion claim.” ECF No. 90 at 16. The defendant does not dispute the prior concession, but appears to claim that the concession was in error. ECF No. 394 at 26. The defendant conceded the timeliness of Officer Goines’
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2000-2002 promotion claim and has not adequately explained why that concession was in error. Furthermore, the defendant does not object to Magistrate Judge Facciola’s recommendation that Mr. Goines proceed on his claim in Civil Action No. 04-320. Accordingly, the Court will ADOPT IN PART AND REJECT IN PART the recommendation. Officer Goines may proceed on the claim for discrimination and retaliation in the 2000 promotion process in Civil Action No. 01-2221 and on the claim for discrimination in the Sergeant promotion process from 2002-2004 in Civil Action No. 04-320 as listed in Attachment II to this Memorandum Opinion. Officer Goines’ remaining claims will be DISMISSED.
h. Tammie D. Green Plaintiffs concede that Officer Green must be dismissed from the main case for failure to properly exhaust her administrative remedies. ECF No. 379 at 4-5; ECF No. 386 at 40. However, Officer Green is not included in the Fourth Amended Complaint nor in any of the Exhibits thereto. See generally ECF No. 278. Magistrate Judge Facciola stated that “plaintiffs submitted sufficient documentation to support a finding of timeliness on Officer Green’s retaliation claim stemming from the 2003 Sergeants’ exam” which Officer Green asserts in Civil Action No. 04-329. ECF No. 389 at 4. The defendant asserts that Office Green did not exhaust her administrative remedies in Civil Action No. 04-329 but provides no argument as to why. See ECF
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No. 394 at 26-27. Accordingly, the Court will ADOPT the recommendation and Officer Green may proceed on the claim in Civil Action No. 04-329 as set forth in Attachment II to this Memorandum Opinion. To the extent Officer Green alleges any claims in the Fourth Amended Complaint, they will be DISMISSED.
i. Ave Maria Harris Plaintiffs concur with Judge Facciola’s Report and Recommendations as to Officer Harris and the defendant raises no objections. See ECF No. 386 at 28, see generally ECF No. 394. The Court will ADOPT the recommendation and Officer Harris may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Harris’ remaining claims will be DISMISSED.
j. Larry Ikard Magistrate Judge Facciola recommends that Sergeant Ikard’s claims for discrimination based on non-promotion as a K-9 officer and for hostile work environment and/or discrimination regarding the name given to a dog in the K-9 unit be allowed to proceed. ECF No. 376 at 27-28. Magistrate Judge Facciola recommends dismissal of “Sgt. Ikard’s retaliation claim, premised on his not being promoted to a K-9 officer [because it] was not alleged in the complaint in any detail, and there was no demonstration that administrative remedies were exhausted for this claim.” ECF No. 376 at 28.
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Citing his declarations, plaintiffs object to the dismissal of other hostile work environment claims and the retaliation claim based on Sgt. Ikard’s non-promotion as a K-9 officer. ECF No. 386 at 41. Plaintiffs state that Sgt. Ikard should be able to pursue his non-promotion claim as an act of retaliation, not only as an act of discrimination. See id. Plaintiffs also state that although Sgt. Ikard is not listed in the complaint for Civil Action No. 04-320, it is a proposed class action and thus includes Sergeant Ikard. Id. Further, according to plaintiffs, Sgt. Ikard has exhausted his claims in that case. See id. The defendant earlier conceded that Sgt. Ikard exhausted his claim regarding the name of the dog in the K-9 unit. ECF No. 315-1 at 142.
The defendant responds that the plaintiffs have not identified the incidents or dates that the other hostile work environment claims were exhausted, that Sgt. Ikard did not assert a nonpromotion claim in the Fourth Amended Complaint, and that Sgt. Ikard did not demonstrate that he exhausted his administrative remedies in Civil Action No. 04-320. ECF No. 394 at 32-33.
Sgt. Ikard asserted only one hostile work environment claim in the Fourth Amended Complaint. See generally ECF no. 278. Accordingly, plaintiffs’ contention that he should be able to proceed on additional hostile work environment claims is unavailing. The Court agrees with plaintiffs that Sgt. Ikard may
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proceed on his retaliation claim based on not being promoted to a K-9 officer position. Magistrate Judge Facciola found that Sgt. Ikard exhausted his administrative remedies for a hostile work environment claim arising out of those facts and Officer Ikard has asserted a retaliation claim in the Fourth Amended Complaint. The Court rejects the plaintiffs’ argument that Sgt. Ikard can proceed with his claims in Civil Action No. 04-320 because he is not a named plaintiff in that case. Accordingly, the Court will ADOPT IN PART and REJECT IN PART the recommendation and Sgt. Ikard may proceed on his two claims as listed in Appendix II to this Memorandum Opinion. Sgt. Ikard’s remaining claims will be DISMISSED.
k. John N. Johnson Magistrate Judge Facciola recommends that Officer Johnson’s claim of non-selection following the 2000 sergeant exam should go forward because the parties agreed that his claim was timely, but that his claim for racist words or actions should be dismissed because “there was no demonstration that administrative remedies were exhausted for this claim.” ECF No. 376 at 28. The plaintiffs do not object to Magistrate Judge Facciola’s recommendation, but relying on Officer Johnson’s
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declaration in the main case,18 assert that Officer Johnson’s claim in Civil Action No. 04-320 should proceed as well. ECF No. 386 at 43. Magistrate Judge Facciola’s Report and Recommendation is silent on this claim. See generally ECF No. 376.
Although the defendant has conceded the timeliness of this claim, see ECF No. 315-1 at 156 and ECF No. 275, the defendant argues that Officer Johnson did not exhaust his administrative remedies with regard to a retaliation claim regarding the 2002 Sergeant’s promotion process in Civil Action No. 01-2221. ECF No. 394 at 36-37. However, Officer Johnson did not assert this claim in the Fourth Amended Complaint. The defendant does not respond to plaintiffs’ arguments regarding Civil Action No. 04320.
In Civil Action No. 04-320, Officer Johnson asserts disparate treatment and retaliation claims arising out of the year 2003 promotion to Sergeant and Lieutenant examinations. Compl., ECF No. 1 at 14-15. However, the plaintiffs have provided no evidence to demonstrate that Officer Johnson exhausted his administrative remedies with regard to that claim. Accordingly, Officer Johnson’s claim in Civil Action No. 04-320 will be DISMISSED.
18 The declaration cited in Plaintiffs’ opposition does not exist in the record.
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With regard to Civil Action No. 01-2221, the Court will ADOPT the recommendation and Officer Johnson may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Johnson’s remaining claims will be DISMISSED.
l. Governor Latson Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Officer Latson and the defendant raises no objections. ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and Officer Latson may proceed on the claim as listed in Attachment II to this Memorandum Opinion. Officer Latson’s remaining claims will be DISMISSED.
m. Derrick Macon Magistrate Judge Facciola found that Officer Macon, whose claims are included in the Fourth Amended Complaint, but who is proceeding pro se, raised four claims in this case: “1) that he was subjected to a hostile work environment; 2) that he was denied training in April of 2000; 3) that he was selected for a training regarding pick-pocketing in November of 2000, but was never given the opportunity to attend; and 4) that he was denied sick leave in retaliation for filing a complaint.” Id. at 2 (citing Fourth Am. Compl., ECF No. 278 ¶ 33; Macon Decl., ECF No. 318-1). Magistrate Judge Facciola found that Officer Macon failed to supply evidence of having exhausted the hostile work
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environment claim “because no evidence was presented showing that Officer Macon raised this claim at the administrative level.” Id. (internal citation omitted). The claim regarding pick-pocket training had not been raised at the administrative level, Magistrate Judge Facciola found, because even the evidence submitted by the plaintiff did not contain anything that would indicate that the claim was raised until June 27, 2001, more than 180 days after the November 2000 training. See id. at 3. The claim regarding the April 2000 training was similarly infirm because Officer Macon did not contact a counselor about anything until April 12, 2001. See id. at 2 n.3. Finally, Magistrate Judge Facciola found Officer Macon’s retaliation claim had not been exhausted “because no date was provided for when this alleged violation occurred.” Id. at 3. Magistrate Judge Facciola did not specifically address Officer Macon’s claims that were listed in the Appendices to the Fourth Amended Complaint, but clearly recommended that all of Officer Macon’s claims in the Fourth Amended Complaint be dismissed. Id. at 3.
Officer Macon objects to the recommended dismissal of his claims and attaches to his objections “all documents given to him from the Office of Compliance (OOC) as additional evidentiary support of his exhaustion of administrative remedies.” Objs., ECF No. 384 at 2. Officer Macon relies on
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“Chart A” and “Chart B,” which the parties provided to the Court in response to the Court’s request, as evidence that he exhausted his administrative remedies. Id. at 2-3. Officer Macon also objects to Magistrate Judge Facciola’s recommended dismissal of his hostile environment claims stemming from events that occurred prior to October 14, 2000 because, according to Officer Macon, as long as he timely sought counseling for any act that contributed to that claim, his claim is timely. Id. at 4-5.
The defendant responds that: (1) Officer Macon has not complied with Local Civil Rule 72.3(b) in making his objections to Magistrate Judge Facciola’s Report and Recommendations; (2) Officer Macon was provided with clear guidance of what evidence he needed to provide to show that he exhausted his administrative remedies and he failed to provide evidence to show that he exhausted those remedies; (3) the parties agree that Officer Macon attended counseling on April 12, 2001, but Officer Macon has not shown that his claims arose within 180 days of the alleged violation;(4) Officer Macon did not present any facts or dates related to his hostile work environment claim nor his denial of sick leave claim and so he did not show that he timely pursued these claims; (5) Officer Macon’s claim for denial of training claim is untimely because it arose in April 2000 but he did not seek counseling until April 12, 2001; and
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(6) Although Officer Macon’s claim regarding the denial of pickpocket training arose in November 2000, he did not raise this claim until June 27, 2001, and even if he had, the Fourth Amended Complaint did not include the denial of pick-pocket training. Def’s Resp., ECF No. 391 at 3-5.
As a preliminary matter, the Court has already dismissed the disparate-impact claims raised by plaintiffs in Exhibits 4 and 5 to the Fourth Amended Complaint, see supra at 47, as well as the futility claims in Exhibit 9. See supra at 48. The Court has reviewed the materials Officer Macon attached to his opposition. Exhibit 1 is a June 27, 2001 letter from Officer Macon to Ms. Malloy regarding the claims he sought to pursue in District Court after going through counseling and mediation. This letter cites various alleged violations that occurred in 1990, 1992, 1993, 1999 and 2000 (pick-pocket training class) but does not provide the specific dates upon which any of the alleged violations occurred. The documents provided at Exhibit 2 are dated 2003 or later and therefore are not relevant to any claims asserted in Civil Action No. 01-2221 which was filed on October 29, 2001. With regard to “Chart A” (Exhibit 3) and “Chart B” (Exhibit 4), these Charts were provided in response to the Court’s request that the parties provide a chart indicating their exact cause of action and pertinent information regarding their exhaustion of administrative remedies. Chart A indicates
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that Officer Macon asserts the following claims in Civil Action No. 01-2221: (1) denied the opportunity to take the sergeant’s exam in 1990; (2) internal affairs conducted investigation into a traffic stop of him by Park Police; (3) the review board found him guilty of conduct prejudicial to reputation of the department but he was not disciplined; and (4) discipline pending for two years and during those two years he was unable to transfer or be promoted. Chart A, ECF No. 127-1. “Chart B” indicates that Officer Macon alleged discrimination based on the 1990 sergeant promotion process, discipline, and hostile work environment and that the date of the alleged violation was November 30, 2000. ECF No. 384-1 at 42. The chart also provides the date counseling was requested and attended in person, the date the end of counseling notice was received, the date that mediation was requested and attended in person, and the date the end of mediation notice was received. Id. Comparing the information in “Chart A” to Officer Macon’s claims in the Fourth Amended Complaint shows little correlation between his claims in the complaint originally filed in this case and the claims asserted in the Fourth Amended Complaint. Exhibit 5 contains defendant’s acknowledgement that Officer Macon’s denial of participation in pickpocket training class falls within the 180day window preceding his April 12, 2001 request for counseling, but defendant states that it does know whether this incident was
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the subject of Officer Macon’s request for counseling. Exhibit 6 contains Appendix A to Magistrate Judge Facciola’s First R. & R. in this case. Exhibit 7 contains Magistrate Judge Kay’s (unsigned) order regarding a settlement conference in Civil Action No. 03-1592 and Exhibit 8 contains a confirmation of the date and time for the settlement conference. Lastly, Exhibit 9 contains the formal request for counseling dated May 8, 2001 pertaining to a promotional exam for which scores were made public in the second week of January 2001. This material appears to pertain to the futility claim, which the Court has already dismissed.
Although plaintiffs were given the opportunity to take discovery in order to obtain evidence to refute the defendant’s factual attacks on plaintiffs’ exhaustion claims, Mr. Macon has provided no evidence other than the letter at Exhibit 1 to show that he presented the pick-pocket training incident in counseling and mediation. Mr. Macon has therefore failed to meet his burden of establishing, by a preponderance of the evidence, that he presented this incident in counseling and mediation.
With regard to the remaining claims in the Fourth Amended Complaint, Officer Macon failed to meet his burden of establishing, by a preponderance of the evidence, that he sought counseling for any of the claims within 180 days of the alleged violations because neither the Fourth Amended Complaint, the
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Exhibits thereto, nor the materials Officer Macon cites provides the specific date(s) upon which any of his claims arose, nor that those claims were raised in counseling and mediation. Accordingly, the Court will ADOPT the recommendation and Officer Macon will be DISMISSED from the case.
Both Magistrate Judge Facciola and Officer Macon state that Civil Action No. 03-1592 has been dismissed without prejudice. Suppl. R. & R., ECF No. 378 n.1; Objs. n.1. However, this case was dismissed with prejudice on August 15, 2007, Order, ECF No. 36 at 1, and Officer Macon has not sought relief from this judgment. See generally Docket for Civil Action No. 03-1592.
n. Kevin Matthews Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Officer Matthews and the defendant raises no objections. ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and Officer Matthews may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Matthews’ remaining claims will be DISMISSED.
o. Danny McElroy Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations that Officer McElroy be permitted to proceed on his non-promotion claim in Civil Action No. 04-320 and his 2001 claim for improper discipline in Civil Action No. 01-2221. See
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ECF No. 386 at 28, ECF No. 376 at 30-31. The defendant objects only to the non-promotion claim, but does not explain why Magistrate Judge Facciola’s recommendation was incorrect. See ECF No. 394 at 40. Accordingly, the Court will ADOPT the recommendation and Officer McElroy may proceed on the claims listed in Attachment II to this Memorandum Opinion. Officer McElroy’s remaining claims will be DISMISSED.
p. Brent Mills Magistrate Judge Facciola recommends that Officer Mills’ claim in Civil Action No. 04-320 for retaliatory non-promotion in 2003 proceed and that all of his claims in Civil Action No. 01-2221 be dismissed. ECF No. 376 at 31-32. With regard to Officer Mills’ non-promotion claim in the main case, Magistrate Judge Facciola states that he had recommended dismissal of this claim “for failure to exhaust administrative remedies, because the plaintiff’s declaration was incomplete and inconsistent with his counsel’s assertions regarding dates of counseling and mediation.” ECF No. 376 at 31. Citing his declaration, the plaintiffs object to the recommended dismissal of Officer Mills’ claim for discrimination in promotion based on a November 5, 2000 incident. See ECF No. 386 at 43. In his January 3, 2004 declaration, Officer Mills states that he was discriminated against on November 5, 2000 when the defendant promoted four other officers to the rank of
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sergeant, and that he sought counseling for this incident on April 12, 2001. ECF No. 332-2, Ex. 63 at 2. The defendant responds that in an earlier document, Officer Mills stated that he was denied a chance at promotion on September 28, 2000, which makes his claim 16 days late. See ECF No. 394 at 41-42.
Plaintiffs have not responded to Magistrate Judge Facciola’s concerns about Officer Mills’ declaration. Accordingly, the Court will ADOPT the recommendation and Officer Mills may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Mills’ remaining claims will be DISMISSED.
q. Duvall Phelps Magistrate Judge Facciola recommends that Officer Phelps’ claims in Civil Action No. 01-2221 be dismissed, including his claim for discrimination in discipline “because Officer Phelps entered into a settlement agreement regarding his retirement in June 2000, and did not seek counseling until 10 months later on April 28, 2001.” ECF No. 376 at 32, App. B. With regard to Officer Phelps’ claims in Civil Action No. 02-2644, Magistrate Judge Facciola recommends that Officer Phelps’ claims in that case proceed based on Office of Compliance certifications and Officer Phelps’ declaration. ECF No. 376 at 33. Plaintiffs disagree with the recommendation only as to Officer Phelps’ claim for discrimination in discipline. ECF No. 386 at 30-31. Plaintiffs’ theory is that Officer Phelps was coerced
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into retiring because he would have been terminated if he had not settled, and thus his claim is timely because he sought counseling once it was “safe” for him to do so – on April 28, 2001, which was within 180 days of his actual separation on October 31, 2000. ECF No. 386 at 31.
Defendants respond that the plaintiffs did not identify why Magistrate Judge Facciola’s recommendation was wrong, and that moreover, under binding precedent in this Circuit pursuant to Brees v. Hampton, 877 F.2d 111 (D.C. Cir. 1999) a plaintiff who enters into a settlement agreement is barred from raising discrimination claims. See ECF No. 394 at 47. In that case, however, the settlement agreement itself precluded the plaintiff from filing additional claims. See Brees v. Hampton, 877 F.2d at 117. In this case, the terms of Officer Phelps’ settlement agreement are not in the record.
Given that the terms of the settlement agreement were not provided to the Court, the Court will ADOPT IN PART the recommendation and this claim will be dismissed without prejudice. Officer Phelps’ remaining claims in Civil Action No. 01-2221 will be DISMISSED. Officer Phelps may proceed on the claims listed in Attachment II to this Memorandum Opinion. Officer Phelps’ remaining claims will be DISMISSED.
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r. Vernier Riggs Magistrate Judge Facciola recommends that two of Sgt. Riggs’ claims proceed – the claim for discrimination with respect to denials of sick leave as to specific incidents of harassment that occurred after October 14, 2000, and the claim that she was retaliated against by being admonished for wearing an incorrect shirt. ECF No. 376 at 33-34. Plaintiffs object only to the date restriction on the claim for discrimination with respect to denials of sick leave on the grounds that this is a hostile work environment claim. ECF No. 386 at 32. The defendant does not respond. See generally ECF No. 394. However, Sgt. Riggs does not allege a hostile work environment claim in the Fourth Amended Complaint, see generally ECF No. 278, and may not refashion her retaliation claim as hostile work environment in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, the Court will ADOPT the recommendation and Sgt. Riggs may proceed on the claims listed in Attachment II to this Memorandum Opinion. Sgt. Riggs’ remaining claims will be DISMISSED.
s. Leonard Ross Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Officer Ross and the defendant raises no objections. ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and
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Officer Ross may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Ross’ remaining claims will be DISMISSED.
t. Reginald Waters Magistrate Judge Facciola recommends that Officer Waters be permitted to proceed on his hostile work environment claim. See ECF No. 389 at 6. Relying on their response to Magistrate Judge Facciola’s request for clarification, plaintiffs assert that Officer Waters exhausted his administrative remedies in both Civil Action Nos. 01-2221 and 04-320. ECF No. 386 at 49. The defendant concedes that it did not object to Officer Waters’ hostile work environment claim in its motion to dismiss. ECF No. 394 at 62. With their one-sentence general objection, plaintiffs have failed to “specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for objection.” Local R. Civ. P. 72.3(b). Accordingly, the Court will ADOPT the recommendation and Officer Waters may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Waters’ remaining claims will be DISMISSED.
u. Richard Webb Magistrate Judge Facciola recommends that Officer Webb be permitted to proceed on his K-9 unit non-promotion and hostile work environment claims in Civil Action No. 01-2111 and his non-
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promotion discrimination claim in Civil Action No. 04-320. See ECF No. 376 at 36. Citing his declaration, plaintiffs object to the dismissal of Officer Webb’s claim that he was unfairly denied a promotion after the 2000 sergeants’ examination. ECF No. 386 at 49. The defendant does not respond. See generally ECF No. 394. With regard to this claim, Officer Webb states that he took the promotional examination during the 1999-2000 process. ECF No. 332-4, Ex. 79 at 30. The declaration does not provide specific dates upon which this incident occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violation alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Webb sought counseling within 180 days of the alleged violation. Accordingly, the court will ADOPT the recommendation and Officer Webb may proceed on the claims listed in Attachment II to this Memorandum Opinion. Officer Webb’s remaining claims will be DISMISSED.
v. Frank Wilkes Plaintiffs concur with Magistrate Judge Facciola’s Report and Recommendations as to Officer Wilkes and the defendant raises no objections. See ECF No. 386 at 28, see generally ECF No. 394. Accordingly, the Court will ADOPT the recommendation and Officer
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Wilkes may proceed on the claim listed in Attachment II to this Memorandum Opinion. Officer Wilkes’ remaining claims will be DISMISSED.
4. Plaintiffs Not Listed by Magistrate Judge Facciola But Addressed Individually by the Plaintiffs
With regard to the 42 plaintiffs listed below, Magistrate Judge Facciola recommends dismissal of their claims “because absolutely no evidence was submitted on their behalf showing 1) that they properly raised their claims in the administrative process; 2) that they exhausted the process; and 3) that they timely proceeded to federal court in either Civil Action No. 012221 or one of the consolidated cases.” ECF No. 376 at 16-17. The plaintiffs’ objections to Magistrate Judge Facciola’s recommendations as to these plaintiffs and the defendant’s responses are set forth below and the Court resolves plaintiffs’ objections.
a. Roy Anderson Citing his Declaration, plaintiffs object to the recommended dismissal of Officer Anderson’s claim that he was unfairly denied a promotion after the 2000 Sergeant’s examination. ECF No. 386 at 34. The defendant responds that the plaintiffs have provided no evidence to support their contention that the defendant received notice of Officer Anderson’s administrative claim. ECF No. 394 at 11.
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In his declaration, Officer Anderson alleges that he participated in the 2000 promotion process, but that he was not provided with the “Incident Command Book” needed to prepare for the exam until after the exam and thus received a low score because he was unable to properly prepare. ECF No. 331-6, Ex. 26 at 2. Officer Anderson asserts that when he initiated counseling on April 12, 2001, it was within 180 days of the acts about which he complains. Id. However, the declaration does not provide specific dates upon which any of the incidents occurred, see general id., and the Fourth Amended Complaint does not allege the date upon which the year 2000 Sergeant’s examination(s) took place. Fourth Am. Compl. ¶ 53. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Anderson sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Anderson will be DISMISSED from the case.
b. Helen Bond-Jones Citing her declaration, plaintiffs object to the recommended dismissal of Officer Bond-Jones’ claim for “hostile work environment based on observing the treatment of other African-
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American Officers.” ECF No. 386 at 52-53. Officer Bond-Jones did not assert a hostile work environment claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, the Court WILL ADOPT the recommendation and Officer Bond-Jones will be DISMISSED from this case.
c. Armando Bowman Citing his declaration, plaintiffs object to the recommended dismissal of Officer Bowman’s claim for disparate treatment in assignments. ECF No. 386 at 36. The Court has already dismissed all claims for disparate treatment in assignment. See supra at 47. Accordingly, the Court will ADOPT the recommendation and Officer Bowman will be DISMISSED from this case.
d. Kevin Bull Citing his declaration, plaintiffs object to the recommended dismissal of Officer Bull’s claim for discrimination in the 2000 promotion process. ECF No. 386 at 17. Defendants respond that Office Bull does not appear in the complaint originally filed in this case, and thus plaintiffs have not shown that Officer Bull timely filed his claim in this court. ECF No. 394 at 17. Officer Bull is not listed as a plaintiff in Civil Action No. 01-2221 nor in any of the consolidated cases although he is listed in Exhibits 1,2, 4, 7, and 9 of the Fourth Amended Complaint. See generally Docket for Civil Action No. 01-2221 and ECF No. 278.
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In his declaration, Officer Bull states that he was discriminated against as a result of the 1999-2000 promotion exam for sergeant. ECF No. 332-1, Ex. 37. The declaration does not provide specific dates upon which the incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violation alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Bull sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Bull – to the extent he is a plaintiff in this case – will be DISMISSED from this case.
e. Loretta Bullock Citing her declaration, plaintiffs object to the recommended dismissal of Officer Bullock’s claims for discrimination in assignment and hostile work environment based on witnessing discrimination against other African-American officers. ECF No. 386 at 37. The Court has already dismissed the disparate impact claims raised by plaintiffs in Exhibits 4 and 5 to the Fourth Amended Complaint. See supra at 47. Officer Bullock did not assert a hostile work environment claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation.
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Accordingly, the Court will ADOPT the recommendation and Officer Bullock will be DISMISSED from this case.
f. Saphonia Butler Citing her declaration, plaintiffs object to the recommended dismissal of Officer Butler’s claim for hostile work environment based the fact that “openings for specialty assignments were not made known to African American Officers and based on her observation that African American Officers were consistently passed over for specialty assignments and promotions” and the fact that she ceased applying for promotions because she deemed it futile. ECF No. 386 at 37-38. The Court has already denied Office Butler’s sole claim that she was unfairly denied a promotion after the 2000 sergeant’s examination. See supra at 48. Officer Butler did not assert a hostile work environment claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, the Court will ADOPT the recommendation and Officer Butler will be DISMISSED from this case.
g. Dorian Coward Citing his declaration, plaintiffs object to the recommended dismissal of Officer Coward’s claim for “hostile work assignment,” which the Court understands to be a claim for hostile work environment. See ECF No. 386 at 38. In his
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declaration, Officer Coward states that he experienced racial discrimination as a result of specific events up to October 16, 2000 and through at least April 11, 2001. ECF No. 332-5, Ex. 87 at 1. Officer Coward states that he was regularly yelled at and disrespected by white officers, he was denied assignments, and in general was subjected to a very hostile work environment. Id. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Coward sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Coward will be DISMISSED from this case.
h. J. Carroll Creekmur Citing his declaration, and asserting that the claims are timely, plaintiffs object to the recommended dismissal of Officer Creekmur’s claim of “hostile work environment based on . . . discriminatory conduct by white Officers towards African American members of the public and retaliation against him for complaining to his superiors about this conduct.” ECF No. 386 at 38. The Court understands this to be Officer Creekmur’s hostile
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work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Creekmur’s declaration does not provide the necessary information. See ECF No. 394 at 19.
In his declaration, Officer Creekmur alleges that he experienced racial discrimination between October 16, 2000 and April 11, 2001. ECF No. 345-14, Ex. 100 at 2. Officer Creekmur describes how white officers would racially profile motorists and homeless persons. Id. at 2-5. The only information in the declaration regarding any actions taken against Officer Creekmur himself were that “[w]hen he brought [the racial profiling] to my Caucasian Sergeant’s attention . . he published my name as though I were complaining and I was pulled into IAD.” Id. at 3. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Creekmur sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Creekmur will be DISMISSED from this case.
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i. Donald Dixon Citing his declaration, plaintiffs object to the recommended dismissal of Officer Dixon’s “claim for a hostile work environment based on discriminatory discipline, unfounded IAD investigations, and an involuntary transfer.” ECF No. 386 at 38. The Court understands this to be Officer Dixon’s hostile work environment claim raised in the Fourth Amended Complaint. See ECF No. 278 ¶¶ 25, 28 Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Dixon’s declaration does not provide the necessary information. ECF No. 394 at 20-21. In his declaration, Officer Dixon alleges that he experienced racial discrimination between November 2000 and April 2001. ECF No. 333-2, Ex. 91 at 2. In particular, Officer Dixon states that he was blamed for a breach in discipline even though he was not on duty at the time of the incident. Id. at 3. Officer Dixon also states that from “October 2000 through 2001, he was subjected to numerous IAD investigations for the most ridiculous alleged infractions” and that he was “involuntarily transferred.” Id. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that
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counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Dixon sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Dixon will be DISMISSED from this case.
j. Kevin R. Evans Citing his declaration, plaintiffs object to the recommended dismissal of Officer Evans’ claim for “hostile work environment based on the discriminatory refusal to correct information in his personnel file to reflect accurately his education and enable him to be considered for specialty assignments for which he was qualified based on his education and experience.” ECF No. 386 at 38-39. The Court understands this to be Officer Evans’ hostile work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Evans’ declaration does not provide the necessary information. ECF No. 394 at 21. In his declaration, Officer Evans alleges that he experienced racial discrimination between October 2000 and April 2001. ECF No. 332-1, Ex 40 at 2. Specifically, Officer Evans states that despite numerous requests to correct his employment record to reflect that he had a college degree so that he could be
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considered for job advancement, this never occurred. Id. at 2-4. The declaration does not provide specific dates upon which Office Evans requested that his employment record be corrected. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Evans sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Evans will be DISMISSED from this case.
k. David Fleming Citing his declaration, plaintiffs object to the recommended dismissal of Officer Fleming’s claim for “hostile work environment, based on an unwarranted accusation by white Officers that he had been smoking marijuana and an improper investigation of that charge.” ECF No. 386 at 39-40. The Court understands this to be Officer Fleming’s hostile work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Fleming’s declaration does not provide the necessary information. ECF No. 394 at 24-25.
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In his declaration, Officer Fleming states that he experienced racial discrimination between October 16, 2000 and April 11, 2001. ECF No. 345-15, Ex. 101. In particular, Officer Fleming alleges that on November 11, 2000, he was “singled out” by “two white officers and accused of smoking marijuana” and that there was “no legitimate reason for [him] to have been accused of this.” Id. at 2. Id. Officer Fleming does not state that he sought counseling and mediation for this alleged violation of law. See generally id.
If Officer Fleming requested counseling for this incident on April 12, 2001, his request would have been timely. However, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the this incident. Accordingly, the Court will ADOPT the recommendation and Officer Fleming will be DISMISSED from this case.
l. James Gupton Citing his declaration, plaintiffs object to the recommended dismissal of Officer Gupton’s claim that he did not participate in the 2000 promotion process because he deemed it futile. ECF No. 386 at 53. Officer Gupton does not allege this claim in the Fourth Amended Complaint, but does allege that he was unfairly denied a promotion after the 2000 sergeant’s examination. In his declaration, Officer Gupton states that he “did not participate
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in the 2000-2002 promotion cycle because [he] deemed it to be futile.” ECF No. 332-2, Ex. 45, ¶5. The Court has already dismissed claims that participation in the 2000 promotion process would have been futile. See supra at 48. Accordingly, the Court will ADOPT the recommendation and Officer Gupton will be DISMISSED from this case.
m. Clarence Haizlip Citing his declarations, plaintiffs object to the recommended dismissal of Officer Haizlip’s claim for “hostile work environment based on observing the treatment of other African American Officers.” ECF No. 386 at 52-53. Officer Haizlip did not assert any claims in the Fourth Amended Complaint, see generally ECF No. 278, and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, Officer Haizlip will be DISMISSED from this case.
n. Ernestine Harding Citing her declaration, plaintiffs object to the recommended dismissal of Officer Harding’s claim for “hostile work environment based on observing the treatment of other African American Officers.” ECF No. 386 at 52-53. The Court understands this to be Offer Harding’s hostile work environment claim in the Fourth Amended Complaint. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth
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Amended Complaint and that Officer Harding’s declaration does not provide the necessary information. ECF No. 394 at 29-30.
In her declaration, Officer Harding alleges that she experienced racial discrimination between November 2000 and April 2001 when she witnessed the use of racial epithets, and that she “witnessed White officers yelling, threatening, and denying normal privileges provided to White officers” resulting in the Capital Police department being a hostile work environment for her. ECF No. 332-2, Ex. 47 at 5-6. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Harding sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Harding will be DISMISSED from this case.
o. Mark Harrison Citing his declaration, plaintiffs object to the recommended dismissal of Officer Harrison’s claim for retaliation. ECF No. 386 at 40. However, Officer Harrison’s sole claim in the Fourth Amended Complaint is for “additional” hostile work environment.
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See generally ECF No. 278. Officer Harrison did not assert a retaliation claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, the Court will ADOPT the recommendation and Officer Harrison will be DISMISSED from this case.
p. Jerry Howard Citing his declaration, plaintiffs object to the recommended dismissal of Officer Howard’s claim for “hostile work environment based on observing the treatment of other African American Officers.” ECF No. 386 at 52-53. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Howard’s declaration does not provide the necessary information. ECF No. 394 at 29-30. In his declaration, Officer Howard alleges that although he cannot remember the exact dates, he experienced racial discrimination between November 1, 2000 and April 11, 2001, in the form of “the use of a hangman’s noose, the use of a swastika, unprovoked stops while driving and fake write-ups (also known as “bear hunting”). ECF No. 332-2, Ex. 50 at 22. Officer Howard also alleges that during this time period he “witnessed Black Officers being yelled at, threatened, denied privileges that White Officers were receiving, and having their
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pictures posted on exam files” resulting in the Capitol Police department being a hostile work environment for him. Id. at 23. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Howard sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Howard will be DISMISSED from this case.
q. Dwayne Inabinet Citing his declaration, plaintiffs object to the recommended dismissal of Officer Inabinet’s claim for hostile work environment based on discrimination in assignments. ECF No. 386 at 42. The Court has already dismissed all claims for disparate treatment in assignment. Supra at 47. Plaintiffs cannot refashion the disparate-impact claim as a hostile work environment claim to attempt to avoid dismissal. Accordingly, the Court will ADOPT the recommendation and Officer Inabinet will be DISMISSED from this case.
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r. Gregory Jackson Citing his declaration, plaintiffs object to the recommended dismissal of Officer Jackson’s claims for hostile work environment and retaliation. ECF No. 386 at 42. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Jackson’s declaration does not provide the necessary information. ECF No. 394 at 34-35. In his declaration, Officer Jackson alleges that he experienced racial discrimination between November 2000 and April 2001 in the form of racial epithets, which he either overheard or were directed at him, and that he “witnessed White officers yelling, threatening, denying normal privileges provided to White officers, and Black Officers’ pictures posted on exam files” resulting in him being subjected to a hostile work environment. ECF No. 332-2, Ex. 52 at 38. Officer Jackson further alleges that he was subjected to discrimination in discipline based on race and that he was retaliated against for opposing racial discrimination when his white supervisors would inform him that complaints had been made against him but would not provide him with any details about the complaints. Id. at 39. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at
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2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Jackson sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Jackson will be DISMISSED from this case.
s. Theortis Jones Citing his declaration, plaintiffs object to the recommended dismissal of Officer Jones’ claims for hostile work environment and retaliation. ECF No. 386 at 43. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Jones’ declaration does not provide the necessary information. ECF No. 394 at 37. In his declaration, Officer Jones alleges that he experienced racial discrimination between November 2000 and April 2001 in the form of racist epithets, which he overheard or were directed at him; and that he “witnessed White officers yelling, threatening, denying normal privileges provided to White officers, and Black Officers’ pictures posted on exam files” resulting in him being subjected to a hostile work environment. ECF No. 332-2, Ex. 56 at 49-50. Officer Jones also alleges that “he witnessed and experienced racial discrimination in the form of racist actions and practices such as the hangman’s noose,
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swastika, threats, unprovoked stops while driving, or issuing fake write-ups (also knowns as “bear hunting”).” Id. at 50. Officer Jones states that he “witnesse[d] African American officers routinely receive less desirable assignments than White officers,” that “African American officers received harsher penalties than White Officers for similar offenses,” and that he “experienced retaliation for opposing racial discrimination in the Capitol Police Department.” Id. at 51. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Jones sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Jones will be DISMISSED from this case.
t. Jerome Lofty Citing his declaration, plaintiffs object to the recommended dismissal of Officer Lofty’s claim for hostile work environment. ECF No. 386 at 43. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth
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Amended Complaint and that Officer Lofty’s declaration does not provide the necessary information. ECF No. 394 at 38-39.
In his declaration, Officer Lofty alleges that he experienced racial discrimination between October 2000 and April 2001 in the form of racist epithets that he overheard or that were directed toward him. ECF No. 332-2, Ex. 59 at 58. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Lofty sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Lofty will be DISMISSED from this case.
u. Ronnie Massie Citing his declaration, plaintiffs object to the recommended dismissal of Officer Ronnie Massie’s claim for “hostile work environment based on observing the treatment of other African American Officers.” ECF No. 386 at 52-53. Officer Massie’s name does not appear in the Fourth Amended Complaint, nor in any of
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the Exhibits to that Complaint, see generally ECF No. 278.19 Officer Ronnie Massie cannot raise claims not asserted in the Fourth Amended Complaint in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Accordingly, Officer Massie will be DISMISSED from this case.
v. Joseph Moore Citing his declaration, plaintiffs object to the recommended dismissal of Officer Moore’s claims for discrimination in promotion based on his participation in the 2000 promotion process and for hostile work environment based on discrimination in assignments. ECF No. 386 at 44. The defendant responds that Officer Moore neither asserted the discrimination in promotion claim in the Fourth Amended Complaint nor did he timely seek mediation or timely file his claim in district court. ECF No. 394 at 42. Officer Moore did assert a futility claim, see ECF No. 278, ¶¶ 43, 57, Ex. 9, but the Court has already dismissed the futility claims. See supra at 48. Officer Moore did not assert a “hostile work environment based on discrimination in assignments” but if he had asserted a disparate treatment in assignments claim, the Court has already dismissed that claim as
19 Even if Officer Massie had asserted claims in the Fourth Amended Complaint, his declaration does not specify the dates upon which any incidents of alleged discrimination occurred, see ECF No. 332-2 at 65-66, and so he could also be dismissed for that reason.
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well. See supra at 47. Accordingly, the Court will ADOPT the recommendation and Officer Moore will be DISMISSED from this case.
w. Teresa Bradby (Morgan) Citing her declaration, plaintiffs object to the recommended dismissal of Officer Bradby (Morgan’s) claim for hostile work environment created by racist words. ECF No. 386 at 44. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Bradby (Morgan’s) declaration does not provide the necessary information. ECF No. 394 at 43. In her declaration, Officer Bradby (Morgan) states that she appeared at mediation and described the disparaging comments made repeatedly about African-Americans and African-American Officers by white officers. ECF No. 331-6, Ex. 20. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Bradby (Morgan) sought counseling within 180 days of the alleged violation. The Court therefore
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will ADOPT the recommendation and Officer Bradby (Morgan) will be DISMISSED from this case.
x. Barry Nixon Citing his declaration, plaintiffs object to the recommended dismissal of Officer Nixon’s hostile work environment claim and his claim that he did not participate in the 2000 promotion process because he believed it would be futile to do so. ECF No. 386 at 44-45. The Court has already dismissed the futility claims. See supra at 48. The defendant responds that plaintiffs have provided no factual details about Officer Nixon’s hostile work environment claim in the Fourth Amended Complaint and that Officer Nixon’s declaration does not provide the necessary information. See ECF No. 394 at 44-45. In his declaration, Officer Nixon alleges that he experienced a hostile work environment between October 15, 2000 and April 12, 2001, including being spoken to in a derogatory manner, being addressed with racist epithets, observing other AfricanAmerican Officers being treated in a similar way and being criticized or disciplined for conduct that White officers were not criticized or disciplined for, African-American Officers were assigned less desirable posts. ECF No. 366-3, Ex. 115 at 23. Officer Nixon further alleges that African-American officers were not made aware of opportunities for specialty assignments until it was too late to apply for them. Id. The declaration
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does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Nixon sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Nixon will be DISMISSED from this case.
y. Luther Peterson Citing his declaration, plaintiffs object to the recommended dismissal of Officer Peterson’s claim for discriminatory discipline. ECF No. 386 at 45. Plaintiffs assert that the defendant conceded the timeliness of this claim. Id. The defendant does not respond to this assertion. ECF No. 394 at 4546. Because the defendant conceded the timeliness of Officer Peterson’s disparate treatment in discipline claim, ECF No. 90 at 5-6, the Court will REJECT the recommendation and Officer Peterson may proceed on the claim for discriminatory discipline as set forth in Attachment II to this Memorandum Opinion. Officer Peterson’s other claims will be DISMISSED.
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z. Mary Jane Rhone Citing her declaration, plaintiffs object to the recommended dismissal of Officer Rhone’s retaliation claim. See ECF No. 386 at 45. The defendant responds that Officer Rhone’s retaliation claims were previously considered and dismissed by this Court in Civil Action No. 11-292. ECF No. 394 at 47. However, the claims asserted by Officer Rhone in Civil Action No. 11-292 are distinct from the claims asserted in this case. In her declaration dated January 20, 2011, Officer Rhone asserts that she was subject to retaliation “within the last 180 days” and that she was retaliated against after she filed her case in September 2010. ECF No. 333-2, Ex. 93. Thus any retaliation would have occurred after this case was filed. In a letter addressed “To Whom it May Concern” dated June 4, 2001, Officer Rhone asserts that for the prior five years she was retaliated against by being denied access to advancement through training, experience and knowledge as a result of her efforts to expose injustice. ECF No. 299-8, Ex. 36. The letter does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the
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evidence, that Officer Rhone sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Rhone will be DISMISSED from this case.
aa. James Roberts Citing his declaration, plaintiffs object to the recommended dismissal of Officer Roberts’ claim for disparate treatment in assignments. See ECF No. 386 at 45. The Court has already dismissed this claim. See supra 47. Accordingly, the Court will ADOPT the recommendation and Officer Roberts will be DISMISSED from this case.
bb. Theodore Rodgers Citing his declaration, plaintiffs object to the recommended dismissal of Officer Rodgers’ claims for discriminatory nonpromotion as a result of the 2000 promotion process and for hostile work environment. ECF No. 386 at 45. However, Officer Rodgers did not assert a discriminatory non-promotion claim in the Fourth Amended Complaint. ECF No. 278, Ex. 7; ECF No. 343. The Court understands Officer Rodger’s hostile work environment claim to be the claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Rodgers’ declaration does not provide the necessary information. See ECF No. 394 at 49-50.
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In his declaration, Officer Rodgers alleges that he experienced racial discrimination between October 16, 2000 and April 11, 2001, when he was falsely accused of stealing money, unfairly disciplined, and denied a position as a bicycle man. ECF No. 332-4, Ex. 72 at 2-3. Officer Rodgers also states that a noose was hanging in the locker room. Id. at 3. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Rodgers sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Rodgers will be DISMISSED from this case.
cc. Joseph Simpson Citing his declaration, plaintiffs object to the recommended dismissal of Officer Simpson’s claims for discriminatory nonpromotion as a result of the 2000 promotion process and for hostile work environment. ECF No. 386 at 46. However, Officer Simpson did not assert a discriminatory non-promotion claim in the Fourth Amended Complaint. ECF No. 278, Ex. 7; ECF No. 343. The Court understands Officer Simpson’s hostile work environment
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claim to be the claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Simpson’s declaration does not provide the necessary information. ECF No. 394 at 50-51.
In his declaration, Officer Simpson alleges that he was subjected to a hostile work environment between October 2000 and April 2001 when he learned that African-American officers would be passed over for promotion and not put on special detail. ECF No. 332-4, Ex. 75 at 14-15. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Simpson sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Simpson will be DISMISSED from this case.
dd. Thomas Spavone Citing his declaration, plaintiffs object to the recommended dismissal of Officer Spavone’s claims for disparate treatment in assignments and his futility claim. See ECF No. 386 at 46. The
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Court has already dismissed these two claims. See supra at 4748. Accordingly, the Court will ADOPT the recommendation and Officer Spavone will be DISMISSED from this case.
ee. Robert Spruill Citing his declaration, plaintiffs object to the recommended dismissal of Officer Spruill’s claims for discriminatory nonpromotion as a result of the 2000 promotion process and for hostile work environment. ECF No. 386 at 47. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Spruill’s declaration does not provide the necessary information. ECF No. 394 at 55. In his declaration, Officer Spruill alleges that he experienced racial discrimination between October 2000 and April 2001 as a result of witnessing African-American officers being subjected to mistreatment including the noose incident, witnessing an African-American officer being called a racist name, witnessing disparaging comments, and not offering to African-American officers the tutoring provided to white officers. ECF No. 332-6, Ex. 89 at 2-3. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed
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for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Spruill sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Spruill will be DISMISSED from this case.
ff. Keith Steward Citing his declaration, plaintiffs object to the recommended dismissal of Officer Steward’s claim for “hostile work environment based on observing the treatment of other AfricanAmerican Officers.” ECF No. 386 at 52-53. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Steward’s declaration does not provide the necessary information. ECF No. 394 at 55-56. In his declaration, Officer Steward alleges that he experienced racial discrimination between October 16, 2000 and April 11, 2001 when he heard about and witnessed unfair disciplinary actions against African-American officers, the belittling of African-American officers, and unfair treatment of African-American officers with regard to promotion. ECF No. 3324, Ex. 76 at 17-18. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices,
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ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Steward sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Steward will be DISMISSED from this case.
gg. Dwight Sturdivant Citing Officer Sturdivant’s declaration, plaintiffs object to the dismissal of his claim for hostile work environment based on “discrimination in assignments and on the observed discriminatory treatment of other African-American Officers with whom he worked.” ECF No. 386 at 47. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Sturdivant’s declaration does not provide the necessary information. ECF No. 394 at 56-57. In his declaration, Officer Sturdivant alleges that he was discriminated against because of his race between October 15, 2000 and April 12, 2001 because African-American officers were much less likely to be given a preferred duty assignment and because African-American officers were disciplined for infractions for which white officers were not disciplined. ECF No. 353-7, Ex. 108 at 2-3. The declaration does not provide
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specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Sturdivant sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Sturdivant will be DISMISSED from this case.
hh. Anwar Thompson Citing his declaration, plaintiffs object to the dismissal of Officer Thompson’s “claim for hostile work environment, based on comments to him, comments he overheard, sabotage of his bicycle, and discrimination in publicizing assignments.” ECF No. 386 at 47-48. The defendant mistakenly responds that Officer Thompson’s name does not appear on any exhibit to the Fourth Amended Complaint, and that in any event, plaintiffs have provided no factual details about these claim in the Fourth Amended Complaint and that Officer Thompson’s declaration does not provide the necessary information. ECF No. 394 at 58-59. The Court understands this to be Officer Thompson’s hostile work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1.
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In his declaration, Officer Thompson alleges that he experienced racial discrimination between November 2000 and April 2001 when he frequently heard African-American officers being spoken of in a derogatory manner and using specific derogatory words, information about specialty posts were not made known to African-American officers in time to be able to apply for them, and his bicycle brakes were disabled, which he believes was an attack on him as an African-American officer. ECF no. 353-9, Ex. 110 at 2-3. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Thompson sought counseling within 180 days of the alleged violation. The Court therefore will ADOPT the recommendation and Officer Thompson will be DISMISSED from this case.
ii. Dale Veal Citing his declarations, plaintiffs object to the dismissal of Officer Veal’s claim for “hostile work environment, especially discrimination in assignments and access to training, the most recent of which was denials of overtime in late 2000.” ECF No.
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386 at 48. Plaintiffs assert that the defendant conceded the timeliness of Officer Veal’s claim for discrimination in the assignment of overtime. See id. The defendant does not respond to this assertion and otherwise responds that plaintiffs have provided no factual details about these claims in the Fourth Amended Complaint and that Officer Veal’s declaration does not provide the necessary information. ECF No. 394 at 60-61. As they are alleged separately in the Fourth Amended Complaint, the Court considers Officer Veal’s claims for hostile work environment and for discrimination as a result of being denied overtime assignments as separate claims.
In his declaration,20 Officer Veal asserts that “blatant racial discrimination and harassment were part of the job when I worked for the Capitol Police” including discrimination in assignments, supervisors making derogatory and racist statements, and discriminatory discipline. ECF No. 332-4, Ex. 77 at 20. The declaration does not provide specific dates upon when any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus
20 The document cited by plaintiffs as Doc. 332-1, Ex. 2 does not exist in the record.
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failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Veal sought counseling within 180 days of the alleged violation.
With regard to Officer Veal’s claim for discrimination in the assignment of overtime, the defendant did not respond to the plaintiff’s assertion that the defendant has conceded jurisdiction on this claim. See generally ECF No. 394. The Court therefore finds that the defendant conceded the timeliness of Officer Veal’s disparate treatment in discipline claim. See ECF No. 90 at 5-6. Accordingly, the Court will ADOPT the recommendation and Officer Veal’s claims in Exhibits 1 and 3 of the Fourth Amended Complaint will be DISMISSED. The Court will REJECT the recommendation as to Officer Veal’s claim for discrimination in the assignment of overtime and that claim may proceed as listed in Appendix II to this Memorandum Opinion.
jj. McArthur Whitaker Citing his declarations, plaintiffs object to the recommended dismissal of Officer Whitaker’s claims for discrimination in assignments and discipline, and that participating in the 2000 promotion process would have been futile. ECF No. 386 at 49-50. The Court has already dismissed claims for disparate treatment in assignments and that participation in the 2000 promotion process would have been futile. See supra at 48. Accordingly,
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the Court will ADOPT the recommendation and Office Whitaker will be DISMISSED from this action.
kk. McKinley White Citing his declaration, plaintiffs object to the recommended dismissal of Officer White’s claims for discrimination in assignment with regard to non-selection for the canine unit, hostile work environment based on retaliation against AfricanAmerican Officers who spoke out against discrimination, and that he did not participate in the 2000 promotion process because he deemed it futile. ECF No. 386 at 50. The Court has already dismissed claims that participation in the 2000 promotion process would have been futile. See supra at 48. Officer White did not raise a claim related to the canine unit promotion process in the Fourth Amended Complaint, ECF No. 278, ¶¶ 21 51, and cannot do so in plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. The Court understands the remaining claim to be Officer White’s hostile work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer White’s declaration does not provide the necessary information. ECF No. 394 at 63-64. In his declaration, Officer White alleges that he experienced racial discrimination and a hostile work environment between
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October 15, 2000 and April 12, 2001 when he and others were not made aware of specialty assignments until it was too late to apply for them, and officers who spoke out against discrimination were retaliated against. ECF No. 368-3, Ex. 116 at 1-2. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer White sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer White will be DISMISSED from this case.
ll. Howard Whitehurst Citing his declarations, plaintiffs object to dismissal of Officer Whitehurst’s claims for hostile work environment based on disparate treatment in assignments and that participation in the 2000 promotion process would have been futile. ECF No. 386 at 50-51. Officer Whitehurst’s name does not appear in the Fourth Amended Complaint, nor in any of the Exhibits to that Complaint, ECF No. 278, ECF No. 343, and he cannot raise claims not asserted in the Fourth Amended Complaint in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and
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Recommendation. Even if Officer Whitehurst had done so, the Court has already dismissed claims for disparate treatment in assignments, see supra at 47, and that participation in the 2000 promotion process would have been futile. See supra at 48. Accordingly, Officer Whitehurst will be DISMISSED from this case.
mm. Cynthia Williams Citing her declaration, plaintiffs object to the recommended dismissal of Officer Williams’ claims for “hostile work environment based on observing the treatment of other AfricanAmerican Officers” and that participation in the 2000 promotion process would have been futile. ECF No. 386 at 52-53. The Court has already dismissed claims that participation in the 2000 promotion process would have been futile. See supra at 48. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Williams’ declaration does not provide the necessary information. ECF No. 394 at 66-67. In her declaration, Officer Williams alleges that between October 15, 2000 and April 12, 2001 she was subjected to a hostile work environment because African-American officers were “yelled at or criticized or disciplined for conduct permitted to white officers, [were] addressed with racist epithets, or denied promotions or assignments.” ECF No. 353-10, Ex. 111 at 2-3. The
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declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Williams sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Williams will be DISMISSED from this case.
nn. Dianne Willis Citing her declaration, plaintiffs object to the recommended dismissal of Officer Willis’ claim for “hostile work environment in the form of discrimination in assignments and disrespectful treatment” and to the recommended dismissal of Officer Willis’ claim that she did not participate in the 2000 promotions process because she believed it would be futile. ECF No. 386 at 51. Officer Willis did not assert a hostile work environment claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Even if Officer Willis had asserted this claim, the Court has already dismissed claims that participating in the 2000 promotions process would be futile. See supra at 48.
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Accordingly, the Court will ADOPT the recommendation and Officer Willis will be DISMISSED from this case.
oo. Craig Young Citing his declaration, plaintiffs object to the recommended dismissal of Officer Young’s claim for discrimination in assignments. ECF No. 386 at 51. However, the Court has already dismissed that claim. See supra at 47. Plaintiffs further object to dismissal of Officer Young’s claim that participation in the 2000 promotion process would have been futile. ECF No. 386 at 51. Officer Young did not assert a futility claim in the Fourth Amended Complaint and cannot do so in the plaintiffs’ objections to Magistrate Judge Facciola’s Report and Recommendation. Even if Officer Young had done so, the Court has already dismissed that claim. See supra at 48. Plaintiffs further object to dismissal of Officer Young’s claim for hostile work environment based on the retaliation experienced by African-American officers who were outspoken about racial discrimination. ECF No. 386 at 51-52. The Court understands this to be Officer Young’s hostile work environment claim raised in the Fourth Amended Complaint. ECF No. 278 ¶ 25, Ex. 1. The defendant responds that plaintiffs have provided no factual details about this claim in the Fourth Amended Complaint and that Officer Young’s declaration does not provide the necessary information. ECF No. 394 at 68-69.
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In his declaration, Officer Young alleges that he experienced racial discrimination between November 2000 and April 2001 when he observed “African-American Officers were treated unfairly, by being denied privileges, training opportunities, or accommodations extended to white Officers. . . given less desirable work assignments . . . and . . . held more strictly to disciplinary standards.” ECF No. 353-11, Ex. 112 at 2. Officer Young also states that he observed African-American officers being retaliated against, and that specialty assignments were not posted and thus African-American officers were not made aware of opportunities. Id. at 3. The declaration does not provide specific dates upon which any of these incidents occurred. See generally id. Furthermore, other than citing the end of mediation notices, ECF No. 386 at 2, the plaintiffs have not demonstrated that counseling and mediation were completed for the violations alleged. Plaintiffs have thus failed to meet their burden of establishing, by a preponderance of the evidence, that Officer Young sought counseling within 180 days of the alleged violation. Accordingly, the Court will ADOPT the recommendation and Officer Young will be DISMISSED from this case.
pp. Kendrick Young Citing his declaration, plaintiffs object to the recommended dismissal of Officer Young’s single claim that participation in
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the 2000 promotion process would have been futile. ECF No. 386 at 52. The Court has already dismissed that claim. See supra at 48. The Court therefore will ADOPT the recommendation and Officer Young will be DISMISSED from Civil Action No. 01-2221. Plaintiffs further assert that the defendant has conceded that Officer Young exhausted his administrative remedies in Civil Action No. 04-0320. See ECF No. 386 at 52. In 2010, the parties agreed that Officer Young had exhausted his administrative remedies, see ECF No. 275 at 2, and the defendant has not explained why that was in error. See ECF No. 394 at 69-71. The Court therefore will REJECT the recommendation in PART and Officer Young’s claim in Civil Action No. 04-230 may proceed.
F. Remaining Plaintiffs and Viable Claims. The 24 plaintiffs listed below remain plaintiffs in these consolidated cases. Attachment II to this Memorandum Opinion sets forth which of their claims are viable: (1) Frank Adams;21 (2) Sharon Blackmon-Malloy; (3) Regina Bolden-Whittaker; (4) Tyrone Brooks; (5) Sandra Brown-James; (6) Arnold Fields; (7) Gary Goines; (8) Tammie Green; (9) Ave Maria Harris; (10) Larry Ikard; (11) John N. Johnson; (12) Governor Latson; (13) Kevin Matthews; (14) Danny McElroy; (15) Brent Mills; (16) Luther Peterson; (17) Duval Phelps; (18) Vernier Riggs; (19) Leonard
21 Which of Mr. Adams’ claims are viable will be determined following supplementary briefing.
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Ross; (20) Dale Veal; (21) Reginald Waters; (22) Richard Webb; (23) Frank Wilkes; and (24) Kendrick Young. IV. Conclusion
For the foregoing reasons, the Court will DENY plaintiffs’ motion for leave to file a Fifth Amended Complaint. The Court will ADOPT IN PART AND REJECT IN PART Magistrate Judge Facciola’s Reports and Recommendations and will GRANT IN PART AND DENY IN PART defendant’s motion to dismiss. With regard to Officer Macon, who is proceeding pro se in this matter, the Court will ADOPT Magistrate Judge Facciola’s Supplemental Report and Recommendation and GRANT defendant’s motion to dismiss his claims. Only those plaintiffs listed in Appendix II will be allowed to proceed in this action, and they will be permitted to proceed only as to the claims listed in that chart. All other claims will be DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies. Nothing in this Opinion shall constitute a final decision on any pending motion or issue. The Court’s recitation of its reasoning and intended rulings shall go into effect only upon entry of a final Order, which shall be held in abeyance pending resolution of the various attorneyrepresentation issues pending before the Court.
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A Status Hearing shall take place January 19, 2017 at 4:00 pm

in Courtroom 24A so that the parties may update the Court on the

status of the attorney representation issues.

Signed:

Emmet G. Sullivan United States District Judge October 13, 2016

136

 
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 %$5&52)7'5,9(

7<521(

%522.6

 %(&.(1+$03/$&(

/25(77$

%8//2&.

 9(5121$9(18(

6$3+21,$

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 5(9 5$,16)25'&7

.$</$1$

%<5'

 '((3*25*(&2857

-2+1 :,//,( &$/':(//-5

 7+675((76 (

67(3+(1

&$11$'<

 %522.6'5,9(

%5<$1

&$57(5

 (//,1*721'5,9(

68,7/$1' 0' 

)25(679,//( 0' 

:$6+,1*721 ' & 

833(50$5/%252 0' 

*$,7+(56%85* 0' 

833(50$5/%252 0' 

833(50$5/%252 0' 

07 5$,1(5 0' 

&/,1721 0' 

/$5*2 0' 

7(03/(+,//6 0' 

)25(679,//( 0' 

833(50$5/%252 0' 

6($73/($6$17 0' 

)7 :$6+,1*721 0' 

125&5266 *$ 

%$/7,025( 0' 

)25(679,//( 0'  7(03/(+,//6 0'  *5((1%(/7 0'  &/,1721 0' 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

:$6+,1*721 ' & 

&/,1721 0' 

2:,1*6 0' 

:$/'25) 0' 

7(03/(+,//6 0' 

7(03/(+,//6 0' 

7(03/(+,//6 0' 

+<$7769,//( 0' 

635,1*'$/( 0' 

833(50$5/%252 0' 

)7 :$6+,1*721 0' 

833(50$5/%252 0' 

2;21+,// 0' 

:$6+,1*721 '& 
 )25(679,//( 0' 

%(/769,//( 0' 

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 2 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

-2( 3(51(// .$5(1 :,//,$0 /8$57+85 &+$5/(6 5(*,1$/' 0,&+$(/ '25,$1 0217( 521$/' %(9(5/< :,//,$0 6+$:1 :,//,$0 5$<021' '21$/' 7<521( /(2 &<17+,$ 0$5&86 9$1(66$ .(,7+ -2+1 .(9,1 .,0 .,0 5+21'$ $512/' 0$5&86 '$9,' 52%(57 0,&+$(/ /$55< *(25*( *$5< 7,(55( 5$<021' -$0(6 0$5.

&+5,67,$1 &/$5. &/$< &/(9(/$1' &2&+5$1 &2))(5-5 &2//,16 &29,1*721 &2:$5' &5((.0$5 &857,6 &857,6 '$9,6 '$9,6 '(1($/ ',**6 ',1*/( ',;21 ',;21 '81./,1 (':$5'6 (':$5'6 (':$5'6 (025< (8,//,, (9$16 (9$16+(55,1* (:,1*6 )$50(5 ),(/'6 )/(0,1* )/(00,1* )2817$,1 )81'(5%85. *$,1(6 *,%621 *2,1(6 *2/6%< *22',1( *5$+$0 *5$<

 /80$5'5,9(  6+$11$'5,9(  : 5,'*(&,5&/(  -$0(,621$9(  6287+),(/'52$'  &$0%/(721'5,9(  2$&.*/(1:$<  +,//6,'($9(18(  7(55$3,1+,//6'5,9(  $11(77(&2857  &$52/,1(&,5&/(  %$6.(59,//('5,9(  67 $/%$1&,5&/(  *2/'/($)$9(18(  $6+)25'%/9' 32 %2;  5(33</$1(  +2/,'$</$1( 32 %2;  &+$11,1*675((71 (  )/$*+$5%25'5,9(  3$/0(552$'  6$))521'5,9(  .,6&21.27851  :22':$<3/$&(  &251,1*$9(18(  /$%(//$:$<  '$19,//('5,9(  0(7=(527752$'  -(11,1*60,//652$'  *$7(:$<%/9'  021$5&+675((7  *22')(//2:'5,9(  (//(172152$'  %5,*+7(552$'  %5$1&+:22'3/$&(  32:+$7$13/$&(1 :  (',1%85*+/$1(  72:1&(17(5&7 $  6721(%5222./$1(  *529(721'5,9(

)7 :$6+,1*721 0' 

$&&2.((. 0' 

2'(1721 0' 

$/(;$1'5,$ 9$ 

)7 :$6+,1*721 

833(50$5/%252 0' 

)25(679,//( 0' 

&+(9(5/< 0' 

0,7&+(//9,//( 0' 

833(50$5/%252 0' 

:$/'25) 0' 

0,7&+(//9,//( 0' 

)7 :$6+,1*721 0' 

6($73/(6$17 0' 

/$85(/ 0' 

833(50$5/%252 0' 

)7 :$6+,1*721 0' 

%2:,( 0' 

)7 :$6+,1*721 0' 

:$6+,1*721 ' & 

)25(679,//( 0'  )7 :$6+,1*721 0'  /$1+$0 0'  )7 :$6+,1*721 0' 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

&+(9(5/< 0' 

)7 :$6+,1*721 0' 

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7(03/(+,//6 0' 

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%2:,( 0' 

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:+,7(3/$,16 0' 

68,7/$1' 0' 

%2:,( 0' 

+<$7769,//( 0' 

&/,1721 0' 

:$6+,1*721 '& 

/$85(/ 0' 

/$5*2 0' 

&2/80%,$ 0' 

&/,1721 0' 

3DJHRI %RI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 3 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

3$75,&. /$55<

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 %5<$17675((71 :  /($7+(5:22'7(55$&(

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 1257+3,77675((7

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)5$1.

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-2+16215(<12/'6  2/6(1675((7

:$6+,1*721 ' &  %857219,//( 0' 

833(50$5/%252 0' 

833(50$5/%252 0' 

67$))25' 9$ 

%2:,( 0' 

:$6+,1*721 '& 

68,7/$1' 0' 

&/,1721 0' 

5$1'$//672:1 0' 

&/,1721 0' 

6,/9(5635,1* 0' 

)25(679,//( 0' 

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&/,1721 0' 

07 5$,1,(50' 

:22'%5,'*( 9$  :$6+,1*721 '&  /$1+$0 0'  6287+5,',1* 9$ 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

833(50$5/%252 0' 

)25(679,//( 0' 

:$6+,1*721 ' & 

&2/80%,$ 0' 

&/,1721 0' 

70(3/(+,//6 0' 

*5((1%(/7 0' 

$5/,1*721 9$ 

&/,1721 0' 

833(50$5/%252 0' 

$/(;$1'5,$ 9$ 

$5/,1*721 9$ 

/$1'29(5 0' 

&/,1721 0' 

68,7/$1' 0' 

7(03/(+,//6 0' 

3DJHRI &RI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 4 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

0(59,1

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 <(//2:7:,*/$1(  :(,66'5,9(  .,7&+(1(5&2857  %8516675((76 ()5$1.  )$//5,9(552:&2857  )25(673$5.'5,9(  52&.'$/(/$1(  ',;,(%2:,(:$<  &$0(5215817(55$&(  673/$&(  :,16/2:&2857 55 %2; 3,11(56&+ 5'  .$7+/((1'5,9(  7($.:22''5,9(  7,33(77/$1(  (0(5621675((71 (  %$6(/,1(7(55$&(  6721(6%25252$'  7+675((71 :  6</9,$'5,9(  $//,621675((7 1(  7+3/$&( 1(  /$:5(1&(675((71 (  %$55,1*721&2857  32:+$7$1675((7  .,1*6+,//675((7  1'675((7 6(  27,6675((71 (  '$1,(/'5,9(  :,//2:75((/$1( 3 2 %2;  +2//2:&2857  ($*/(675((7  :22':$/.&2857  /21*%2:&2857  0225(52$'  :(67%21,:22'7851  :($/',1*:$<  67675((76 (   -$11$/((&7 

$11$32/,6 0'  %2:,( 0'  %2:,( 0'  :$6+,1*721 '&  &2/80%,$ 0'  )25(679,//( 0'  833(50$5/%252 0'  833(50$5/%252 0'  $/(;$1'5,$ 9$  7(03/(+,//6 0'  :22'%5,'*( 9$  5,&+648$5( 1&  )7 :$6+,1*721 0'  833(50$5/%252 0'  *$,7+(56%85* 0'  :$6+,1*721 ' &  $6+%851 9$  )7 :$6+,1*721 0'  :$6+,1*721 ' &  &/,1721 0'  :$6+,1*721 '&  :$6+,1*721 '&  :$6+,1*721 ' &  0,7&+(//9,//( 0'  1(:&$552/721 0'  0,7&+(//9,//( 0'  :$6+,1*721 '&  :$6+,1*721 ' &  )25(679,//( 0'  7(03/(+,//6 0'  $/(;$1'5,$ 9$  :$/'25) 0'  &$3,72/+(,*+76 0'  $/(;$1'5,$ 9$  %5<$1652$' 0'  %5$1'<:,1( 0'  &/,1721 0'  2;21+,// 0'  :$6+,1*721 '&  $/(;$1'5,$ 9$ 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

 3DJHRI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 5 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

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 Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 1 of 28

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

SHARON BLACKMON-MALLOY, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civ. Action No. 01-2221

)

(EGS/JMF)

UNITED STATES CAPITOL POLICE

)

BOARD,

)

)

Defendant.

)

__________________________________________)

REPORT AND RECOMMENDATION This case was referred to me by Judge Sullivan for a Report and Recommendation on whether any class members are entitled to relief from his September 30, 2004 Memorandum Opinion and Order granting defendant=s motion to dismiss without prejudice to reconsideration of claims that conform to the timely counseling and mediation requirements of the Congressional Accountability Act (“CAA”). Briefing followed on Plaintiffs’ Motion for Reconsideration, which Judge Sullivan denied without prejudice in a minute order on August 4, 2005. He also referred the matter to me for this Report. A status conference was then held on March 16, 2006, to resolve various issues of organization and to establish a procedure and timeline for submission of evidence supporting the claims that individual Plaintiffs are entitled to relief under Judge Sullivan=s Order. Parties were instructed to work together to complete two charts provided by this Court, Chart A and Chart B, in facilitation of Judge Sullivan=s Minute Order of August 4, 2005, and detail, for each Plaintiff and each claim, the exact cause of action and pertinent information regarding their exhaustion of administrative remedies.

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The Court has received and reviewed the charts and now finds that the majority of the claims must be dismissed for failure to exhaust administrative remedies or failure to provide required support, while a small group of claims satisfies the requirements set forth in Judge Sullivan’s orders.
Also before me are Plaintiffs’ Motion for an Evidentiary Hearing [#134]; Plaintiffs’ Fourth Motion to Withdraw as Counsel [#135]; Defendant’s Motion to Strike [#139]; Defendant’s Motion to Temporarily Re-Instate Co-Counsel Agreement [#146]; and Plaintiffs’ Second Motion for an Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record [#148]. In a separate Order to accompany this Report and Recommendation, both motions for a hearing will be denied, as will the request to submit additional affidavits for the record; the motions to withdraw, to strike, and to re-instate the co-counsel agreement will be granted. I. BACKGROUND
Plaintiffs Sharon Blackmon-Malloy, Dale Veal, Vernier Riggs, Luther Peterson, Duvall Phelps, Larry Ikard, and Frank Adams filed a class complaint in this action, Civil Action 01-2221, under the CAA,1 on behalf of themselves and all current or retired African-American United States Capitol Police Officers, alleging that the United States Capitol Police Board (“USCP”) engaged in a pattern and practice of race discrimination against its African-American officers. Plaintiffs, all African American, seek compensatory damages and injunctive relief on behalf of all African-American officers of the United States Capitol Police force employed at any time between November 4, 1998,
1 As Judge Sullivan indicates in his Order of September 30, 2004, Plaintiffs’ Complaint was also filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Because these laws were not applicable to legislative branch employees prior to the CAA, the Court will construe these statutes as incorporated by the CAA. See 42 U.S.C. § 1301 et seq.
2

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and the present. Count I of the Joint Second Amended Complaint alleges disparate treatment
based on race (a) in personnel decisions, such as promotions, other selections, work assignments, discipline, and termination; (b) by creation of a hostile work environment; and (c) through harassment and retaliation against African-American officers who oppose discrimination. Count II alleges the USCP has maintained a system of promotions, other selections, work assignments, discipline, and termination that has had a disparate impact on African-American employees. Count III alleges that Plaintiffs Mary Jane Rhone, a civilian USCP employee, and Thomas Spavone, a Hispanic officer, have been subjected to a hostile work environment based on their known associations with African-American officers.
Consolidated with this action are the following cases: Blackmon-Malloy v. United States Capitol Police Board, Civil Action 02-1859; Fields v. United States Capitol Police Board, Civil Action 02-1346; Ross v. United States Capitol Police Board, Civil Action 02-2481; Fields v. United States Capitol Police Board, Civil Action 03-1505; Macon v. United States Capitol Police Board, Civil Action 03-1592; Bolden-Whitaker v. United States Capitol Police Board, Civil Action 03-2644; Young v. United States Capitol Police Board, Civil Action 04-320; Adams v. United States Capitol Police Board, Civil Action 04-943; Adams v. United States Capitol Police Board, Civil Action 05-491; and Adams v. United States Capitol Police Board, Civil Action 06-653. II. LEGAL STANDARD UNDER THE CAA
The CAA provides the exclusive procedure for current or former legislative branch employees to file suit alleging employment discrimination. See 42 U.S.C. §
3

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2000e-16(a).2 As described in Judge Sullivan’s Order, prior to filing suit, the CAA requires the exhaustion of certain administrative remedies, including (a) a request for counseling within 180 days of the alleged violation of law, pursuant to section 402; (b) attendance at a counseling session in person; (c) a request for mediation within 15 days of receiving notice of the end of the counseling period, pursuant to section 403; and (d) attendance at a mediation session in person. 2 U.S.C. §§ 1402, 1403(a). A district court has jurisdiction over any action commenced under the CAA only upon completion of counseling and mediation. 2 U.S.C. § 1408(a).
Unlike Title VII, the CAA specifically limits jurisdiction to cases where a plaintiff has timely exhausted administrative remedies. Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 97, 103 (D.D.C. 2004) (Sullivan, J.). Similarly, only when a plaintiff timely complies with the counseling and mediation requirements of the CAA does the United States, as sovereign, waive immunity and subject itself to suit. See id. Plaintiffs bear the burden of persuasion to establish subject matter jurisdiction in response to a Rule 12(b)(1) Motion to Dismiss. See Thompson v. Capitol Police Board, 120 F. Supp. 2d 78, 81 (D.D.C. 2000). Bare allegations of exhaustion are not enough to establish subject matter jurisdiction in the face of a challenge. Blackmon-Malloy, 338 F. Supp. 2d at 107.
In a class action, vicarious exhaustion of required administrative remedies is barred by the plain meaning of the CAA. Id. at 105. Section 1361(e) of the CAA states that “[o]nly a covered employee who has undertaken and completed the procedures described in sections 1402 [counseling] and 1403 [mediation] of this title may be granted a remedy under part A of this subchapter.” 2 U.S.C. § 1361(e). For a court to allow
2 All citations to the United States Code are to the electronic versions available in Westlaw and Lexis.
4

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 5 of 28
vicarious exhaustion would effectively render section 1361(e) of the CAA null and void by asserting jurisdiction over claims of individuals who failed to request or attend counseling and mediation. Blackmon-Malloy, 338 F. Supp. 2d at 105. Furthermore, nothing in the explicit language of the CAA “permits one person to fulfill the requirement of others.” Id. at 107. Attendance at counseling and mediation is required by the employee in person; “mediation is a process that requires, at the very least, meetings involving the parties and a neutral. It also requires an employee’s presence.” Id. at 109.3 III. JUDGE SULLIVAN’S ORDER
In his Order of September 30, 2004, dismissing Plaintiffs’ complaints without prejudice to reconsideration of those Plaintiffs’ claims that conform to counseling and mediation requirements, Judge Sullivan ordered Plaintiffs, when moving for reconsideration in the lead action, to “clearly state (and provide appropriate documentation for) the allegedly discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended.” Blackmon-Malloy, 338 F. Supp. 2d at 113. Furthermore, the Court indicated that it would not consider claims that do not appear in the Complaint. Id.
As to the above-mentioned consolidated cases, Judge Sullivan also ordered Plaintiffs in those actions to explain how the claims met the exhaustion requirements identified in his Order. Id. In doing so, each Plaintiff was to “detail the allegedly
3 In their Memorandum filed on June 2, 2006 [#135], Plaintiffs urge me to reconsider Judge Sullivan’s determination that vicarious exhaustion of administrative remedies through an attorney is inadequate to establish jurisdiction, and to “reconsider applying Foster v. Gueory [] for the proposition that the mediation requirement may be satisfied by one Plaintiff on behalf of all Plaintiffs.” Plaintiffs’ Memorandum of Law on Representation by Counsel in Mediation at 3 n.2. I have no authority to do so and will order the Memorandum stricken from the record.
5

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 6 of 28
discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended.” Id. To facilitate compliance with Judge Sullivan’s Order, at the status conference of March 16, 2006, this Court provided sample charts, designated Chart A and Chart B, for parties to create a “side-by-side chart stating with clarity and precision for each plaintiff the exact cause of action that a plaintiff has, the precise factual and legal predicates for each claim, whether administrative proceedings were commenced and concluded for that plaintiff, and, if so, the detailed nature of those proceedings and defendant’s precise defenses to the plaintiff’s claims.” Minute Order, August 4, 2005.
In response to Judge Sullivan’s orders and following submission by Plaintiffs of charts detailing their claims, this Court painstakingly examined each claim by each Plaintiff to determine whether that Plaintiff satisfied the administrative requirements, according to the CAA, for that specific claim. The extensive amount of research the Court had to perform to verify the assertions made by counsel should not have been necessary. Implicit in Judge Sullivan’s Order was the presumption that the charts submitted by counsel were to be an accurate summary of what the pleadings contained. Unfortunately, in several instances, the representations in counsel’s charts were contradicted by Plaintiffs’ sworn declarations. Additionally, in several other instances, counsel’s charts made representations of facts as to which Plaintiffs’ declarations were silent. Thus, the charts were nothing more than a place to start. IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
As stated previously, to sustain a claim under the CAA, a plaintiff must show the
6

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 7 of 28
following: (1) a request for counseling within 180 days of the alleged violation; (2) attendance at counseling, in person; (3) request for mediation within 15 days of the close of counseling; and (4) attendance at mediation, in person.
According to the charts submitted by counsel, only fourteen Plaintiffs in these consolidated actions exhausted the administrative requirements for either all or some of their claims. Those claims are collected in Appendix A. The remaining claims for which counsel’s charts show a failure to exhaust administrative remedies are collected in Appendix B and are recommended for dismissal with prejudice.
Unfortunately the analysis cannot simply end here. The claims in Appendix A must be divided further because counsel’s representations in the charts submitted to the Court are at times inaccurate and unsupported by the accompanying documentation. Where a Plaintiff’s sworn statement does not confirm the assertions made by counsel, a separate appendix, Appendix C, lists those claims from Appendix A that should be dismissed without prejudice for failing to exhaust administrative remedies, at least until those Plaintiffs can supplement their declarations with that necessary support. Appendix D lists those claims from Appendix A that counsel identified as being exhausted and where exhaustion is supported by the corresponding Plaintiff’s declaration. In short, the only presently viable claims are those listed in Appendix D.
Note that the analysis that follows is based solely on information contained in the complaints, the charts submitted by counsel, and Plaintiffs’ declarations. The Court recognizes, however, that, in several instances, the government points to other evidence in support of its argument that Plaintiffs’ representations are not correct. Thus, there may be a factual dispute between the parties, the resolution of which may be left until after the
7

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 8 of 28
Court has determined which claims survive. Upon final determination of surviving claims, the Court can decide how to resolve the factual matters for purposes of jurisdiction, including whether the presentation of additional evidence or a hearing may be necessary.
I now address each Plaintiff from Appendix A who appears to satisfy the administrative requirements for at least one claim according to the charts submitted by counsel. 1. Frank Adams
Frank Adams has continuously served on the United States Capitol Police force since 1991 and is currently a Lieutenant assigned to the Senate Chamber section. Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Mot. for Recon.”), Ex. 75, Declaration of Plaintiff Frank Adams (“F. Adams Decl.”), at 1. He is a plaintiff in the lead case and a pro se plaintiff in three consolidated cases, Civil Actions 04-943, 05-491, and 06-653. Lieutenant Adams alleges, inter alia, discriminatory practices in the ranking procedures that affected his participation in the promotional examination process, undermining behavior by his white supervisors when attempting to discipline his subordinates, frivolous internal affairs investigations, retaliation, a hostile work environment, and reduced responsibilities due to this and other discriminatory behavior. See Joint Second Amended Class Action Compl. (“Second Amend. Compl.”) ¶ 28; Adams v. United States Capitol Police Bd., Civ. No. 04-943, Compl. ¶ 1; Adams v. United States Capitol Police Bd., Civ. No. 05-491, Compl. ¶ 1; Adams v. United States Capitol Police Bd., Civ. No. 06-653 Compl. ¶ 6. In total, he
8

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 9 of 28
alleges 574 incidents spanning the time period from November 30, 1994, to July 1, 2004. See Notice of Filing, Exhibit, “Chart B,” 6/20/2006, docket #141 (hereinafter “Johnson Chart B”), at 1-6, 8-10.
According to counsel’s chart, Lieutenant Adams exhausted the administrative requirements under the CAA for 33 of the alleged incidents, where he is represented by counsel for 17 of those claims, relating to incidents between November 2000 and March 2001 brought under the lead case (the “represented claims”), and where 16 are designated pro se, relating to incidents in 2003 and 2004 (the “pro se claims”). Those 33 claims are listed in Appendix A. The Court recommends dismissal of the other 24 claims for failure to exhaust administrative remedies and includes them in Appendix B.
Though the chart provided by counsel indicates that the administrative requirements for those claims listed in Appendix A were exhausted, nothing before the Court clearly verifies Lieutenant Adams’s personal participation in mediation other than the Plaintiffs’ Motion for Reconsideration, which asserts that Lieutenant Adams attended mediation in person. Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Mot. for Recon.”) at ¶ 13. Though Lieutenant Adams’s name does appear on the sign-in sheet for counseling attendance on April 28, 2001, see Mot. for Recon., Ex. 5, his sworn declaration is silent as to his personal attendance at counseling and mediation relating to the represented claims, see F. Adams Decl. at 1. Nonetheless, the Defendant concedes jurisdiction as to Lieutenant Adams’s claims for hostile work environment and adverse actions filed in the lead case. Memorandum in Opposition to Plaintiffs’ Motion for Reconsideration of the Court’s
4 Though counsel Gebhardt’s chart submitted to the Court also lists three incidents for Frank Adams, no additional information is provided as to those claims, and they appear to be duplicated in Johnson Chart B. Therefore the Court has disregarded the three claims included in Gebhardt’s chart.
9

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 10 of 28
September 30, 2004 Memorandum Opinion and Order (“Opp.”) at 3, 49. The Court therefore recommends proceeding with those claims from the lead case and includes them in Appendix D.
In Civil Action 04-943, Lieutenant Adams asserts exhaustion of administrative remedies by including dates for the counseling and mediation periods. He fails, however, to confirm his personal attendance at either. Adams, Civ. No. 04-943, Compl. ¶ 4. The same is true with Lieutenant Adams’s other two pro se complaints. See Adams, Civ. No. 05-491, Compl. ¶ 4; Adams, Civ. No. 06-653, Compl. ¶ 4. Though counsel submits dates for administrative exhaustion of many of Lieutenant Adams’s pro se claims, Lieutenant Adams’s sworn statement and Plaintiffs’ Motion for Reconsideration are silent as to his actual compliance with the exhaustion requirements. Without supporting documentation, Lieutenant Adams presents only bare allegations of compliance with administrative requirements, which Judge Sullivan found inadequate for a claim to proceed. BlackmonMalloy, 338 F. Supp. 2d at 107. The Court therefore recommends dismissal of these claims without prejudice until such evidence is provided and includes them in Appendix C.5 2. Shafton Adams
Shafton Adams, a pro se plaintiff in the lead case, has served on the United States Capitol Police force in various capacities since July 16, 1984, and currently serves as a Special Agent assigned to the Security Services Bureau, Physical Security Division. Mot. for Recon., Ex. 12, Declaration of Plaintiff Shafton Adams (“S. Adams Decl.”) ¶ 2. He alleges a hostile work environment for events that took place between 1997 and 2000. S.
5 It is unclear to which complaint each pro se claim in counsel’s chart relates, and as such the Court can make no distinctions in its appendices.
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 11 of 28
Adams Decl. ¶ 4. According to counsel, Special Agent Adams has completed the administrative
requirements for his claim, and so it is included in Appendix A. See Plaintiffs’ Notice of Filing, Attachment 1, “Resorted Chart B,” 6/09/2006, docket #137 (hereinafter “Gebhardt Chart B”), at 1. His sworn declaration supports the claim of exhaustion made by counsel.6 S. Adams Decl. ¶¶ 7-8, 11. The Defendant argues that the Court lacks jurisdiction due to factual disputes regarding the timeliness of Special Agent Adams’s non-selection claim, the facts to which Special Agent Adams attests in his declaration, and his credibility. Opp. at 21-22. No dispute is raised regarding Special Agent Adams’s attendance at counseling and mediation. Indeed, the Defendant acknowledges Special Agent Adams complied with the counseling and mediation requirements. Opp. at 2. The factual disputes raised by the government are not dispositive of Special Agent Adams’s claims for the purposes of this Report and Recommendation because the only issue now before the Court is whether he has documented his claim of exhaustion.
None of the details regarding Special Agent Adams’s claim appear in the Complaint. His only presence in the Complaint is as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint.” Second Amend. Compl. ¶ 46. Furthermore, counsel failed to include Special Agent Adams in the chart ordered by this Court to provide details surrounding each plaintiff’s cause of action and linking each claim to a specific paragraph in the appropriate complaint. See Order, 3/31/2006, Exhibit A, “Chart A” (hereinafter “Court Chart A”); Response to Order of the
6 It should be noted, however, that counsel’s chart differs from the declaration of Special Agent Adams included with Plaintiff’s Motion for Reconsideration. According to Gebhardt Chart B, Special Agent Adams received his end of counseling notification on May 30, 2006. See Gebhardt Chart B at 1. In his declaration, Special Agent Adams states his counseling ended on May 16, 2006. Despite the discrepancy, either date satisfies the administrative requirements for present purposes.
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Court, 06/02/2006, Attachment 1, “Chart A.” (hereinafter “Counsel Chart A”).7 The details of his claim do appear in Plaintiffs’ Motion for Reconsideration and sworn statement. Mot. for Recon. ¶ 12; S. Adams Decl. ¶ 4. Therefore, with his apparent exhaustion of administrative remedies, the hostile work environment claim survives this stage and is included in Appendix D. 3. Sharon Blackmon-Malloy
Sharon Blackmon-Malloy has been on the United States Capitol Police force since October 12, 1982, and currently serves as a Sergeant assigned to the Training Division. Mot. for Recon., Ex.14, Declaration of Sharon Blackmon-Malloy (“BlackmonMalloy Decl.”), Attachment A, ¶ 2. She is a plaintiff in three suits, including the lead case and consolidated Civil Actions 02-1859 and 04-320. She alleges, inter alia, discriminatory non-promotion, a hostile work environment, disparate treatment, and retaliation. See Second Amend. Compl. ¶ 22; Blackmon-Malloy v. United States Capitol Police Bd., Civ. No. 02-1859, Compl. ¶ 1; Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶¶ 28, 36. The Defendant concedes jurisdiction as to the hostile work environment and non-promotion claims filed in the lead case. See Opp. at 24, 4950.
According to counsel, Sergeant Blackmon-Malloy exhausted administrative remedies for all four claims relating to the three different actions, which appear in Appendix A.8 See Gebhardt Chart B at 2.9 As Sergeant Blackmon-Malloy supports all of
7 Indeed, counsel failed to include many Plaintiffs in their supplements and corrections to Chart A. See Counsel Chart A. Moreover, counsel provided no additional information linking each Plaintiff’s claim to the appropriate paragraph of the complaint as ordered, resulting in the Court having to take substantial amount of time to perform the work asked of counsel. 8 Of the Plaintiffs to present exhausted administrative requirements as to Civil Action 04-320, Sergeant Blackmon-Malloy is the only one to unequivocally assert attendance at a counseling session on October 27, 2003. See Blackmon-Malloy Decl. ¶ 8(b).
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 13 of 28
the assertions made by counsel in her declaration, the Court recommends proceeding with all four of her claims. See Blackmon-Malloy Decl. ¶¶ 6, 7. Therefore, all of her claims are included in Appendix D. 4. Regina Bolden-Whitaker
Regina Bolden-Whitaker, a plaintiff in the lead case as well as in consolidated Civil Action 03-2644, has worked for the United States Capitol Police since August 21, 1985, and currently serves as a Private First Class in the Senate division. Mot. for Recon., Ex.15, Declaration of Regina Bolden-Whitaker (“Bolden-Whitaker Decl.”), Attachment A, ¶ 2. She alleges a total of four claims, including various forms of retaliation, nonselection, and a hostile work environment, relating to incidents in May 2001 and April 2003. Second Amend. Compl. ¶ 34; Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 17.
Officer Bolden-Whitaker satisfied administrative requirements for two claims of retaliation according to charts submitted by counsel, and therefore those two claims are listed in Appendix A. See Gebhardt Chart B at 2. In one incident that is part of Civil Action 01-2221, Officer Bolden-Whitaker alleges she was placed on restrictive duty for not wearing protective body armor despite a medical condition precluding her from wearing the body armor. Second Amend. Compl. ¶ 34. She confirms personally attending both counseling and mediation relating to this claim, which the Defendant does not dispute. See Bolden-Whitaker Decl. ¶ 8; Opp. at 27. The Defendant argues, however,
9 It is again worth noting counsel’s omissions in Gebhardt’s Chart B, where only one counseling date is listed though Sergeant Blackmon-Malloy asserts she attended at least three. Blackmon-Malloy Decl. ¶ 6(c). Also, the date provided by counsel for this plaintiff’s attendance at mediation, June 30, 2001, conflicts with her own account of attending mediation on June 22, 2001. See id. Again, the discrepancies are not a factor in resolution of the claims’ viability but the errors should be highlighted to urge counsel to avoid making any such inadvertent misrepresentations to the Court in the future.
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that the 2001 Complaint could not encompass this particular claim, for which mediation did not conclude until December 2001—after the Complaint was filed. Opp. at 27. Furthermore, the Defendant claims her participation in mediation was in bad faith. Id. at 27-28. Neither argument is a basis for dismissal at this stage, and the Court recommends proceeding with this claim and includes it in Appendix D.
In the other incident to which counsel attests completion of administrative requirements, involving Civil Action 03-2644, Officer Bolden-Whitaker alleges retaliatory disciplinary action. See Civ. No. 03-2644, Compl. ¶ 17; Gebhardt Chart B at 2. Though the language in Bolden-Whitaker’s declaration as to this incident differs slightly from her clear assertion of personal attendance at counseling and mediation regarding the previously mentioned retaliation claim, cf. Bolden-Whitaker Decl. ¶ 7 and ¶ 8, Plaintiffs’ Motion for Reconsideration clearly claims Officer Bolden-Whitaker attended counseling and mediation in person regarding her 2003 claim. Mot. for Reconsid. ¶ 20. Therefore, the Court recommends also proceeding with this claim and includes it in Appendix D.
The other two claims are recommended for dismissal for failure to exhaust administrative requirements. Though she complied with all other requirements, Officer Bolden-Whitaker did not personally attend mediation sessions for the events beginning in 2001 that resulted in hostile work environment and non-selection claims brought under Civil Action 01-2221 because she was recovering from surgery and on approved sick leave. See Bolden-Whitaker Decl. ¶ 6. Officer Bolden-Whitaker does not indicate a request to extend the mediation period to accommodate her recovery, nor any efforts to
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 15 of 28
reschedule mediation for a time she could attend.10 She also acknowledges that she did not take the 2000 promotion exam. Bolden-Whitaker Decl., Attachment A, at 10. The Court therefore recommends the dismissal of these two claims and includes them in Appendix B.
5. Clinton Bradford Clinton Bradford, who has served on the United States Capitol Police force since June 1988, is currently serving as a Private First Class in the House Division. Mot. for Recon., Ex. 17, Declaration of Plaintiff Clinton O. Bradford (“Bradford Decl.”) ¶ 2. According to counsel, Officer Bradford, a pro se class member in Civil Action 01-2221, alleges two claims, one of discriminatory non-promotion and the other of a hostile work environment. See Gebhardt Chart B at 2-3. Counsel asserts that Officer Bradford satisfied administrative requirements for both claims, and thus both are included in Appendix A.11 Like Special Agent Adams, Officer Bradford’s only mention in the Complaint is as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint.” Second Amend. Compl. ¶ 46. Furthermore, counsel failed to include Clinton Bradford in the chart submitted to the Court for the purpose of detailing each plaintiff’s claim. See Counsel Chart A. The details of Officer Bradford’s claims do, however, appear in his declaration
10 It is worth noting that the recuperation period could not have been longer than two months, as Officer Bolden-Whitaker attended counseling regarding her inability to use body armor on September 26, 2001. See Bolden-Whitaker Decl. ¶ 8. 11 According to the supporting declaration, Officer Bradford attended counseling a second time on May 5, 2001, though Gebhardt Chart B omits this information. See Gebhardt Chart B at 2-3; Bradford Decl. ¶ 9. Also, Gebhardt Chart B does not fully comport with the declaration; Officer Bradford asserts the end of counseling notice issued on May 16, 2001, while the chart lists the date as May 30, 2001. Id. Again, these discrepancies, while noteworthy, do not affect the analysis of whether the plaintiff exhausted his administrative requirements.
15

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 16 of 28
and Plaintiffs’ Motion for Reconsideration, thus confirming his completion of administrative requirements for his claims. Bradford Decl. at ¶¶ 8, 13; Mot. for Recon. ¶¶ 7, 13. The Defendant disputes the timeliness of Officer Bradford’s claim and his full participation in the 2000 promotion process. Opp. at 30-31. The Defendant does not dispute his attendance at counseling and mediation sessions, though it does argue the alleged violations were not the subject of Officer Bradford’s counseling request. Opp. at 32. These factual issues may require further consideration, but the fact that Officer Bradford has provided ample support for his exhaustion of administrative remedies mandates segregating Officer Bradford’s claims as viable and including them in Appendix D. 6. Arnold Fields
Arnold Fields is a Private First Class in the Senate Division of the United States Capitol Police and has served on the force since August 18, 1986. Mot. for Recon., Ex. 18, Declaration of Plaintiff Arnold Fields (“Fields Decl.”) ¶ 1. He is a plaintiff in four actions, the lead case as well as Civil Actions 02-1346, 03-1505, and 03-2644, bringing claims of hostile work environment, discriminatory disciplinary and evaluation procedures, and retaliation relating to multiple incidents spanning the time period of early 2001 to March 2003.12 Second Amend. Compl. ¶ 33; Fields v. United States Capitol Police Bd., Civ. No. 02-1346, Compl. ¶ 7; Fields v. United States Capitol Police Bd., Civ. No. 03-1505, Compl. ¶¶ 7-20; Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 18. Officer Fields failed to exhaust the administrative remedies for two claims from Civil Action 01-2221 involving the disciplinary action and a hostile
12 While not a named plaintiff, Officer Fields appears in the complaint in Civil Action 04-320, which discusses retaliation and assault on Officer Fields by a white sergeant. See Young v. United States Capitol Police, Civ. No. 04-320, Compl. ¶ 31.
16

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 17 of 28
work environment in early 2001, as he did not personally attend mediation for those claims according to counsel. Gebhardt Chart B at 5. Those claims are recommended for dismissal in Appendix B.
Officer Fields appears to have satisfied administrative requirements for three other sets of claims for hostile work environment and retaliation—filed in Civil Actions 02-1346, 03-1505, and 03-2644—and those are included in Appendix A. Because in his declaration Officer Fields supports the data provided by counsel, see Fields Decl. ¶¶ 7-9, the Court recommends proceeding with those claims, listed in Appendix D. 7. Tammie Green
Tammie Green, a member of the United States Capitol Police force since 1998, currently serves as a Private First Class in the House Division. Mot. for Recon., Ex. 41, Declaration of Plaintiff Tammie D. Green (“Green Decl.”) ¶ 2. She is named as a plaintiff in the lead case and in Civil Action 04-320, though the only claim for which counsel now includes Officer Green as a plaintiff relates to the subject of the 2004 lawsuit, the sergeant’s 2003 promotion process.13 See Gebhardt Chart B at 7; Mot. for Recon. ¶ 24. The other two claims, apparently connected to the lead case, are recommended for dismissal for failure to exhaust administrative remedies and are included in Appendix B.
Officer Green’s claim for discrimination stems from non-promotion following the 2003 sergeant’s promotion exam. Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶ 27. The details of her particular claim are absent from the Complaint, though her claim is explained in Chart A and Plaintiffs’ Motion for Reconsideration. See
13 Note that the questionable status of Officer Green’s representation is now resolved with the Court’s order granting counsel’s motion to withdraw as to plaintiff Tammie Green.
17

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 18 of 28
Court Chart A at 4; Mot. for Recon. ¶ 24. Counsel indicates Officer Green completed all of the administrative requirements as to the 03-420 claim. See Gebhardt Chart B at 7. However, Officer Green’s declaration is silent as to her personal attendance at counseling on October 9, 2003. See Green Decl. at ¶ 12. The absence of any declaration of counseling attendance is highlighted by Officer Green’s assertion of personally attending mediation on October 27, 2003. Id. Without supporting documentation of Officer Green’s personal attendance at counseling, the Court recommends dismissal of this claim without prejudice until such evidence is provided and includes it in Appendix C. 8. Ave Maria Harris
Ave Maria Harris, a Private First Class in the United States Capitol Police force, has served on the force since January 14, 1987. Mot. for Recon., Ex. 45, Declaration of Plaintiff Ave Maria Harris (“Harris Decl.”) ¶ 2. She is named as a plaintiff in the lead case and in Civil Action 03-2644. In the lead case, Officer Harris only appears as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint,” the details of which are omitted. See Second Amend. Compl. ¶ 46. According to counsel’s chart, any claim relating to incidents prior to 2003 must be dismissed for Officer Harris’s failure to attend mediation sessions. See Gebhardt Chart B at 7. As such, the earlier claim of Officer Harris is included in Appendix B.
In the remaining claim, Officer Harris alleges retaliation and a hostile work environment due to the Capitol Police’s investigation and discipline of her for failing to respond to an alarm while on her break. Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 19; Mot. for Recon. ¶¶ 20, 22. Officer Harris appears to have exhausted the required administrative remedies as to her claim filed in Civil Action
18

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 19 of 28
03-2644, warranting inclusion in Appendix A. See Gebhardt Chart B at 7. According to counsel’s chart, Officer Harris personally attended counseling in
relation to the claim in Civil Action 03-2644 on July 1, 2003. Gebhardt Chart B at 7. However, nothing filed with the Court supports the assertion. Pleadings suggest that only Officer Bolden-Whitaker attended counseling and mediation in relation to the retaliation claim in Civil Action 03-2644. Mot. for Recon. ¶ 20. Officer Harris acknowledges in her declaration that her request for counseling was received on July 1, but she does not indicate attendance at any counseling session, only that her counseling request was “[r]eceived.” Harris Decl. ¶ 7. Additionally, Plaintiffs’ Motion for Reconsideration avers Officer Harris’s attendance at mediation, but not at counseling. Mot. for Recon. ¶ 22. Therefore, the Court recommends dismissal for this claim without prejudice until such time that Officer Harris provides evidence of her attendance at counseling and mediation, The claim is included in Appendix C. 9. Larry Ikard
Larry Ikard, a plaintiff in the lead case, has been continuously employed by the United States Capitol Police since April 20, 1982, and is now a Sergeant in the House Division First Relief with the Uniform Services Bureau. Mot. for Recon., Ex. 78, Declaration of Plaintiff Larry A. Ikard (“Ikard Decl.”) at 1. He alleges discrimination in the 1999 K-9 selection process and a hostile work environment. Second Amend. Compl. ¶ 27. In light of counsel’s representation that Officer Ikard did not personally attend counseling and mediation sessions in relation to these claims, the Court recommends their dismissal and includes those claims in Appendix B.
According to the chart submitted by counsel, Sergeant Ikard, acting pro se,
19

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 20 of 28
exhausted administrative remedies pursuant to a 2003 non-promotion claim in Civil Action 04-320, and so the Court includes that claim in Appendix A. Johnson Chart B at 7; see also Mot. for Recon. ¶ 24. However, Sergeant Ikard is not named in Civil Action 04-320 and no documentation supports counsel’s submission of dates for Sergeant Ikard’s completion of administrative requirements for that claim. See Ikard Decl.; Mot. for Recon. ¶ 24. Therefore, the Court recommends dismissal of this claim and includes it in Appendix C. 10. Derrick Macon
Derrick Macon has been employed by the United States Capitol Police force since 1985 and now serves as an officer in the Senate Division. Mot. for Recon., Ex. 79, Declaration of Plaintiff Derrick Macon (“Macon Decl.”) ¶ 2. In the lead case, Officer Macon brings claims relating to discrimination in promotion and discipline, and to a hostile work environment. Second Amend. Compl. ¶ 43. He is also proceeding pro se as the plaintiff in Civil Action 03-1592, asserting age discrimination and retaliation for his lawsuit in the lead case. Macon v. United States Capitol Police Bd., Civ. No. 03-1592, Compl. ¶¶ 3-12. According to counsel’s chart, Officer Macon exhausted the administrative remedies for all of his claims, and therefore they are included in Appendix A. See Johnson Chart B at 7, 10.14
There are problems with each of Officer Macon’s claims, however. For the claims alleged in the lead case, arising out of events that counsel indicates occurred on November 30, 2000, counsel represents that Officer Macon attended counseling in person
14 Gebhardt Chart B also lists one of Officer Macon’s pro se claims, but provides no data as to completion of administrative requirements and erroneously captions the claim under unrelated case 02-CV-1592. Gebhardt Chart B at 11. The Court assumes this mistakenly duplicates data from the reference in Johnson Chart B at 7 and thus disregards it.
20

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 21 of 28
on April 12, 2001, the same day counseling was requested. Johnson Chart B at 7. Counsel further asserts that “Officer Macon attended counsel (sic) on April 28, 2001.” Memorandum in Support of Plaintiffs’ Reply to Defendant’s Opposition to Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Reply”) ¶ Y. But this is flatly contradicted by Officer Macon’s own declaration, in which he states that he “filed a request for counseling but did not attend because [he] was instructed that [he] did not have to personally attend a counseling session because several class members would be representing the entire class.” Macon Decl. ¶ 8; see also Opp. at 11. Therefore, the Court recommends dismissal of this claim for failure to exhaust administrative remedies and includes it in Appendix B.
As to the retaliation and age discrimination alleged in Civil Action 03-1592, counsel indicates Officer Macon completed administrative requirements for his pro se claims. See Johnson Chart B at 10. However, nothing in the pleadings or Officer Macon’s declaration supports the information in counsel’s chart. See Civ. No. 03-1595, Compl. ¶ 15; Reply ¶ Y. The absence of any documentation leaves only bare assertions of exhaustion, and accordingly the Court recommends dismissal of these claims without prejudice until evidentiary support is provided. These claims are included in Appendix C. 11. Brent Mills
Brent Mills has served on the United States Capitol Police force since October 3, 1990, and he has been a Private First Class since 1993, currently assigned to Senate Division 2. Mot. for Recon., Ex. 80, Declaration of Plaintiff Brent Allan Mills (“Mills Decl.”) ¶ 2. Officer Mills is a plaintiff in the lead case as well as a pro se plaintiff in
21

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 22 of 28
Civil Action 04-320. In the lead case, Officer Mills alleges discrimination in being denied a promotion.
Second Amend. Comp. ¶ 41. The declaration of Officer Mills that should inform the Court of his exhaustion of administrative remedies, however, is actually an incomplete draft, containing numerous errors and instructions on how to complete the declaration rather than the actual needed information. See Mills Decl. ¶¶ 5-6, 9-12. For example, the declaration is blank where Officer Mills was apparently to insert the dates indicating when he participated in counseling. Mills Decl. ¶ 9 (“I participated in counseling with the Office of Compliance on the following date(s) [blank]”). Moreover, the declaration claims Officer Mills initiated counseling for his claims relating to the lead case on April 12, 2001, Mills Decl. ¶ 8, while he impossibly attended mediation and received his endof-mediation notice for this claim prior to counseling in the year 2000, Mills Decl. ¶¶ 1213. This is further contradicted by counsel’s chart, which indicates Officer Mills attended counseling but did not attend mediation in person. Johnson Chart B at 7. With all of the discrepancies and gaps relating to Officer Mills’s claim in the lead case, the Court recommends dismissing this claim for failure to exhaust administrative requirements, and notes the claim in Appendix B.
Officer Mills proceeds pro se as to one claim relating to the 2003 promotion process. See Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶¶ 19, 27. Counsel provides dates demonstrating exhaustion of administrative requirements for that claim, and so it appears in Appendix A. Johnson Chart B at 10.15 The supporting
15 The data for exhaustion of Officer Mills’s pro se claim relating to the 2003 sergeant’s promotion process appears in both Gebhardt’s chart and Johnson’s chart. Gebhardt’s chart, however, fails to indicate any attendance at counseling. See Gebhardt Chart B at 12. Apparently a duplication, the Court disregards the inclusion of this claim in Gebhardt Chart B.
22

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 23 of 28
documentation, however, is silent as to the dates provided in counsel’s chart. See Mills Decl.; Mot. for Recon. ¶ 24. Therefore, the Court recommends dismissal of this claim without prejudice, until such time that Officer Mills can provide evidentiary support of exhaustion. The Court includes this claim in Appendix C. 12. Duvall Phelps
Duvall Phelps was a Private First Class in the House Division in the United States Capitol Police force for 25 years, from October 6, 1975, until October 31, 2000. Mot. for Recon., Ex. 25, Declaration of Plaintiff Duvall W. Phelps (“Phelps Decl.”) ¶ 3. Officer Phelps is a named plaintiff in the lead case and in Civil Action 03-2644. In the lead case, he alleges his departure from the force was the result of a constructive discharge. Second Amend. Compl. ¶ 26. As a result of that action, Officer Phelps claims retaliation and a hostile work environment when he was denied building access and his credentials were taken. Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 20.
According to counsel, Officer Phelps satisfied the administrative requirements for all of his claims, which are included in Appendix A. See Gebhardt Chart B at 14. Officer Phelps confirms exhaustion of administrative requirements in his declaration. Phelps Decl. ¶¶ 8-9. Though the Defendant argues that the date of the cause of action accrued at the time Officer Phelps agreed to the early retirement, not the date when the early retirement became effective, and that his attendance at mediation did not involve his own claims, Opp. at 39-40, for present purposes the Court recommends all of Officer Phelps’s claims proceed at this stage and includes them in Appendix D.
23

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 24 of 28
13. Vernier Riggs Currently a Lieutenant in the United States Capitol Police force assigned to the
House Division, Vernier Riggs has been with the force since August 21, 1985. Mot. for Recon., Ex. 26, Declaration of Plaintiff Vernier Riggs (“Riggs Decl.”) ¶ 2. She is a plaintiff in the lead case, alleging, inter alia, retaliation, discriminatory evaluation, and the denial of a promotion. Second Amend. Compl. ¶ 24. She also appears in Civil Action 04-320, though she is not named as a plaintiff, for being singled out at roll call for wearing a white short-sleeve shirt. Young v. United States Capitol Police Bd., Civ. No. 04-320 Compl. ¶ 29. According to counsel’s chart, Lieutenant Riggs now brings claims only of retaliation and a hostile work environment, for which she completed all administrative requirements. Gebhardt Chart B at 15. These claims are included in Appendix A.
The Defendant disputes the officer’s personal attendance at mediation relating to the substance of her claims. Gebhardt Chart B at 15; Opp. at 13-14. According to counsel’s chart, Lieutenant Riggs attended mediation on June 30, 2001. Id. Lieutenant Riggs asserts, however, she attended a mediation session on June 22, 2001.16 Riggs Decl. ¶ 13. As either date would satisfy administrative remedies, and the factual dispute may require additional analysis, the Court recommends the claims proceed and includes them in Appendix D. 14. Richard Webb
Finally, Richard Webb is a Private First Class on the United States Capitol Police force assigned to the “Patrol Mobile Responds” (sic) unit. Mot. for Recon., Ex. 83,
16 In another notable error, counsel indicates Lieutenant Riggs attended one of her many counseling sessions on April 12, 2001. Gebhardt Chart B at 15. In her declaration, Lieutenant Riggs claims her first counseling session was not until April 28, 2001. Riggs Decl. ¶ 10.
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 25 of 28
Declaration of Plaintiff Richard R. Webb (“Webb Decl.”) ¶ 2. He has served on the force since January 31, 1989. Id. As a plaintiff in the lead case, he alleges discrimination in the K-9 selection process and a hostile work environment, though the details of those claims are absent from the Complaint. Johnson Chart B at 7; see also Webb Decl.; Second Amend. Compl. ¶ 46. As counsel confirms that Officer Webb did not appear personally at any mediation sessions related to those claims, the Court recommends their dismissal for failure to exhaust administrative remedies and includes those claims in Appendix B. See Johnson Chart B at 7; Webb Decl. ¶ 13.
Officer Webb is also a named plaintiff in Civil Action 04-320, in which he alleges discriminatory non-promotion. Young v. United States Capitol Police Bd., Civ. No. 04320, Compl. ¶¶ 5, 27. That claim is included in Appendix A since Officer Webb apparently satisfied the administrative requirements for it. See Johnson Chart B at 11.17 However, no evidence exists in any of the pleadings to support the data provided by counsel. Therefore, the Court recommends dismissal of this claim without prejudice until such time as adequate evidence is presented. It is included in Appendix C. V. SUMMARY OF CLAIMS
As a result of the Court’s analysis of the multiple pleadings and resolution of discrepancies and errors of counsel, eight Plaintiffs currently present claims to the Court that satisfy the administrative requirements set forth by Judge Sullivan: Frank Adams, Shafton Adams, Sharon Blackmon-Malloy, Regina Bolden-Whitaker, Clinton Bradford, Arnold Fields, Duvall Phelps, and Vernier Riggs. Additional claims of Plaintiffs Frank
17 As with the pro se claim of Officer Mills, the data for exhaustion of Officer Webb’s pro se claim relating to the 2003 sergeant’s promotion process appears in both Gebhardt’s chart and Johnson’s chart. Gebhardt’s chart, however, fails to indicate any attendance at counseling. See Gebhardt Chart B at 19. Apparently a duplication, the Court disregards the inclusion of this claim in Gebhardt Chart B.
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 26 of 28
Adams, as well as claims of Tammie Green, Ave Maria Harris, Larry Ikard, Derrick Macon, Brent Mills, and Richard Webb may be viable following supplementation to their declarations to attest to their exhaustion of administrative remedies. The factual disputes specific to certain claims, including those of Shafton Adams, Regina Bolden-Whitaker, Clinton Bradford, Duvall Phelps, and Vernier Riggs, will require additional consideration once the appropriate claims from Appendices C and D are consolidated into one amended complaint. All other claims, for these and all other Plaintiffs, must be dismissed for failure to exhaust administrative remedies under the CAA. VI. OTHER OUTSTANDING MOTIONS
Also before the Court are several other requests, each of which may be succinctly addressed here and will be ruled on in a separate Order.
In light of this Court’s Report and Recommendation, Plaintiffs’ Motion for an Evidentiary Hearing and Plaintiffs’ Second Motion for an Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record will be denied. Plaintiffs already submitted affidavits with their Motion for Reconsideration; furthermore, any additional pleadings on the matter would violate Judge Sullivan’s Minute Order of June 14, 2005.
The Fourth Motion to Withdraw as Counsel, filed by attorney Joseph D. Gebhardt and the firm of Gebhardt & Associates, LLP, will be granted; counsel may withdraw representation as to Plaintiffs Clinton Bradford, Robert Braswell, Tammie Green, and Dale Veal. The Motion to Temporarily Re-Instate Co-Counsel Agreement, filed by attorney Nathaniel D. Johnson, will also be granted.
Defendant’s Motion to Strike the Memorandum filed by Plaintiffs will also be granted. Plaintiffs’ Memorandum, which, in essence, requests yet another
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 27 of 28
reconsideration of Judge Sullivan’s Order on Defendant’s Motion to Dismiss, violates Judge Sullivan’s Minute Order that no additional pleadings be filed in this matter. See Minute Order, June 14, 2005. Furthermore, the Memorandum improperly requests relief this Court is without authority to provide. Defendant’s Motion will be granted and the Memorandum will be ordered stricken. VII. CONCLUSION
After closely analyzing the many filings by Plaintiffs in these consolidated cases, correcting multiple errors by counsel, and filling in other necessary gaps to determine which claims, if any, remain viable, the Court recommends:
DISIMISSING WITH PREJUDICE all claims included in Appendix B for Plaintiffs’ failure to exhaust administrative remedies;
DISMISSING WITHOUT PREJUDICE all claims included in Appendix C. Although Plaintiffs appear to have exhausted the administrative remedies for these claims, they have failed to provide the Court with the appropriate supporting documentation or other evidence. Counsel should be granted leave to supplement the declarations of those Plaintiffs in Appendix C; and
UPHOLDING all claims included in Appendix D for Plaintiffs’ having exhausted the administrative requirements and for providing supporting evidence thereof.
The Court will separately order counsel to submit supporting affidavits to establish the exhaustion of administrative requirements as to claims ONLY included in Appendix C within fourteen days of the date of this Report and Recommendation, or April 2, 2007. Following counsel’s submission, the Court will make a final recommendation as to which claims from Appendix C should be included in an amended
27

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 28 of 28 complaint with those claims included in Appendix D. Upon the filing of an amended complaint, the Court may better determine how to appropriately address the factual disputes presented for specific claims.
Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn, 474 U.S. 140 (1985).
_____/s/_____________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE Dated: March 19, 2007
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Case 1:01-cv-02221-EGS Document 151-1 Filed 03/19/07 Page 1 of 4
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX A: Claims Represented as Exhausted accourding to Counsel Charts (Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Plaintiff

Case Number

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

1 ADAMS, FRANK Civ. A. 01-2221 NJA

(2) discipline (3) HWE

11/11/2000

05/11/2001 04/12/2001

04/28/2001

05/30/2001

06/05/2001

Date mediation attended in person
07/23/2001

2 3 4 5 6 7 8 9 10 11
12
13 14 15
16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32
33
34 ADAMS, SHAFTON

Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221
Civ. A. 01-2221
Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221
Civ. A. 01-2221 Civ. A. 01-2221 ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?
? Civ. A. 01-2221

NJA NJA NJA NJA NJA NJA NJA NJA NJA NJA
NJA
NJA NJA NJA
NJA NJA Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se
Pro Se Pro Se

(2) discipline (3) HWE (3) HWE (3) HWE (2) discipline (3) HWE (2) discipline (3) HWE (3) HWE (3) HWE (2) discipline (3) HWE (2) discipline (3) HWE (1) promotion (3) HWE (4) retaliation (2) discipline (3) HWE (4) retaliation (3) HWE (3) HWE (1) promotion (3) HWE (4) retaliation (3) HWE (3) HWE (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (3) HWE (4) Retaliation (3) HWE (3) HWE (4) Retaliation (3) HWE (4) Retaliation (3) HWE (4) Retaliation (1) promotion (3) HWE (4) retaliation (3) HWE (4) Retaliation (3) HWE

35 BLACKMON- Civ. A. 04-320

GA

MALLOY,

SHARON

(1) Lt. Promotion Exam 2003

11/16/2000 11/17/2000 11/20/2000 11/30/2000 12/01/2000 12/10/2000 12/13/2000 12/23/2000 01/07/2001 01/12/2001

05/16/2001 05/17/2001 05/20/2001 05/30/2001 06/01/2001 06/10/2001 06/13/2001 06/23/2001 7/72001 07/12/2001

04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001

01/12/2001

07/12/2001 04/12/2001

01/21/2001 01/22/2001 04/02/2001

07/21/2001 07/22/2001 10/02/2001

04/12/2001 04/12/2001 04/12/2001

01/11/2001 03/30/2001 07/15/2003 07/01/2003 10/27/2003 10/28/2003 07/30/2003 08/01/2003 08/15/2003 11/18/2003 11/20/2003 11/30/2003 11/30/2003 12/28/2003 03/23/2004 06/15/2004 07/01/2004

07/11/2001 09/30/2001 01/15/2004 01/01/2004 04/27/2004 04/28/2004 02/29/2004 02/01/2004 02/15/2004 05/18/2004 05/20/2004 05/18/2004 05/18/2004 06/08/2004 09/23/2004 12/23/2004 01/01/2005

04/12/2001 04/12/2001 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 08/16/2004 08/16/2004 08/16/2004

07/01/2004 Pl: Oct.-Nov. 2000 Def: Plaintiff fail to establish acts within 180 days of counseling request

01/01/2005 Pl: Mar.-Apr. 2001; Def: earlier than 4/12/2001

08/16/2004 04/12/2001

05/10/2003

11/06/2003 10/27/2003

04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001
04/28/2001
04/28/2001 04/28/2001 04/28/2001
04/28/2001 04/28/2001 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 08/16/2004 08/16/2004 08/16/2004
08/16/2004 04/12/2001
10/27/2003

05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001
05/30/2001
05/30/2001 05/30/2001 05/30/2001
05/30/2001 05/30/2001 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 09/18/2004 09/18/2004 09/18/2004
09/18/2004 05/30/2001; Declaration indicates 5/16/2001

06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001
06/05/2001
06/05/2001 06/05/2001 06/05/2001
06/05/2001 06/05/2001 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 09/20/2004 09/20/2004 09/20/2004
09/20/2004 06/05/2001

12/03/2003

12/04/2003

07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001
07/23/2001
07/23/2001 07/23/2001 07/23/2001
07/23/2001 07/23/2001 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 10/20/2004 10/20/2004 10/20/2004
10/20/2004 07/23/2001
12/23/2003

Appendix A, 1 of 4

Case 1:01-cv-02221-EGS Document 151-1 Filed 03/19/07 Page 2 of 4
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX A: Claims Represented as Exhausted accourding to Counsel Charts (Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Plaintiff
36
37
38
39 BOLDENWHITAKER, REGINA
40
41 BRADFORD, CLINTON
42
43 FIELDS, ARNOLD
44
45
46 GREEN, TAMMIE

Case Number Civ. A. 01-2221
Civ. A. 01-2221
Civ. A. 02-1859 Civ. A. 01-2221

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

GA

(1) Sgt. Promotion Exam

11/04/2000

05/03/2001 04/12/2001; Declaration

indicates two additional

counseling dates

GA

(3) HWE

02/23/2001

08/22/2001

04/12/2001; Declaration indicates two

additional counseling

dates

GA

(4) Retaliation (smoke)

11/08/2001

05/07/2002 04/08/2002

GA

(4) Retaliation (body armor

5/**/2001

11/**/2001 09/26/2001

counseling)

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

04/12/2001

05/30/2001

06/05/2001

04/12/2001

05/30/2001

06/05/2001

04/08/2002 09/26/2001

05/08/2002 10/26/2001

05/22/2002 11/07/2001

Date mediation attended in person
7/25/2001 6/30/2001
07/25/2001
05/22/2002 Pl: 12/6/2001 Def: Bad Faith

Civ. A. 03-2644 Civ. A. 01-2221

GA Pro Se

(4) Retaliation

04/10/2003

10/07/2003

(1) 2000 Sgt.'s promotion process Pl: 11/2000

Pl: 5/2001

Def: Never

Def: N/A

completed 2000

exam process

07/11/2003 04/12/2001

07/11/2003

08/07/2003

04/12/2001;

05/30/2001;

Declaration also 5/16/2001 per

indicates

Decl.

5/5/2001

08/11/2003 06/05/2001

09/04/2003 07/25/2001

Civ. A. 01-2221 Civ. A. 02-1346 Civ. A. 03-1505 Civ. A. 03-2644
Civ. A. 04-320

Pro Se GA GA GA
Pro Se

(3) HWE

Pl: 2/21/2001 Def: 3/3/2000

Pl: 8/20/2001 04/12/2001 Def: 8/30/2000

(3) HWE/Retaliation (3) HWE/Retaliation
(3) HWE/Retaliation

8/6/2001 , 8/29/2001
10/7/2002, 10/24/2002, 11/6/2002, 1/9/2003, 1/27/2003

02/25/2002 07/26/2003

Pl: 3/27/2003 09/23/2003 See pleadings re Def. Motion to Dismiss for parties' dispute as to timeliness and adverse action

(1) 2003 Sgt.'s promotion process Pl: 5/10/2003 Def: lacks standing

11/06/2003

01/17/2002 02/11/2003 07/01/2003
10/09/2003

04/12/2001;

05/30/2001;

Declaration also 5/16/2001 per

indicates

Decl.

5/5/2001

01/17/2002

02/19/2002

06/05/2001 02/25/2002

02/11/2003

02/13/2003

02/14/2003

07/01/2003

08/06/2003

08/06/2003

10/09/2003

10/14/2003

10/15/2003

07/25/2001 03/14/2002 03/26/2003 09/04/2003
10/27/2003

Appendix A, 2 of 4

Case 1:01-cv-02221-EGS Document 151-1 Filed 03/19/07 Page 3 of 4
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX A: Claims Represented as Exhausted accourding to Counsel Charts (Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Plaintiff

Case Number

47 HARRIS, AVE Civ. A. 03-2644 MARIA

48 IKARD, LARRY Civ. A. 04-320

49 MACON,

Civ. A. 01-2221

DERRICK

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

GA

(2) & (4) (retaliatory discipline) Pl: 3/27/2003 09/23/2003 06/27/2003

See pleadings

re Def. Motion to

Dismiss for

parties' dispute

as to timeliness

and adverse

action

Pro Se NJA

(1) 2003 promotion (1) promotion (2) discipline (3) HWE

05/10/2003 11/30/2000

11/06/2003 10/09/2003 04/30/2001 04/12/2001

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

07/01/2003

08/06/2003

08/06/2003

10/09/2003

10/14/2003

04/12/2001; ¶ 8 05/30/2001

of Decl. says no

attendance

10/15/2003 06/05/2001

Date mediation attended in person
09/04/2003
10/27/2003 P: 6/22/2001; D: None

50

Civ. A. 03-1592

51

Civ. A. 03-1592

52 MILLS, BRENT Civ. A. 04-320

Pro Se Pro Se Pro Se

(3) HWE (4) Age Discrimination (3) HWE (4) Retaliation (1) 2003 promotion

03/09/2003

09/05/2003

03/08/2003

09/04/2003

P: 5/10/2003, D: 11/06/2003

lacks standing

03/12/2003 03/26/2003 10/09/2003

03/14/2003 03/27/2003 10/09/2003

03/20/2003 03/28/2003 10/14/2003

03/26/2003 03/28/2003 10/15/2003

04/28/2003 05/01/2003 10/27/2003

53 PHELPS, DUVALL
54

Civ. A. 01-2221 GA Civ. A. 03-2644 GA

(2) Discipline/Termination

Pl: 10/31/2000 Pl: 4/29/2001 04/28/2001 Def: 6/16/2000 Def:
12/13/2000

4/28/2001 4/30/2001 5/5/2001

(4) Retaliation (denial of building 1/21/2002,

access)

1/23/2002

7/22/2002, 7/24/2002

02/05/2002

03/15/2002

05/30/2001; 06/05/2001 Decl. says 3/15, extended to 3/29

Pl: 6/30/2001, 7/23/2001, 7/25/2001 Def: None; **Decl. says 6/22

03/22/2002; 04/11/2002; Decl. 04/11/2002 Decl. says 3/15 says 3/22

55

Civ. A. 03-2644 GA

(4) Retaliation (denial of building 1/18/2002,

7/17/2002, 04/11/2002

04/11/2002

04/22/2002

04/22/2002

05/17/2002

access)

2/5/2002

8/5/2002

56

Civ. A. 03-2644 GA

(3) HWE (denied building access) 1/24/03, 1/25/03 7/23/2003, 02/10/2003

02/10/2003

02/13/2003

02/13/2003

3/26/03, 4/9/2003,

7/24/2003

4/11/2003

57
58
59 RIGGS, VERNIER

Civ. A. 03-2644 GA Civ. A. 03-2644 GA Civ. A. 01-2221 GA

60

Civ. A. 01-2221 GA

(4) Retaliation (credentials stolen) 7/7/2003,

7/29/2003

(4) Retaliation (denial of building 8/**/2003

access)

(4) denial of leave

10/xx/2000

(4) Retaliation

04/13/2001

1/5/2004, 1/26/2004 1/**/2004

08/11/2003 09/08/2003

March/April 04/12/2001 2001

10/10/2001 Pl: 4/12/2001 Def: None

08/11/2003

08/19/2003

08/19/2003

09/23/2003

09/08/2003

09/22/2003

09/22/2003

09/23/2003

4/12/2001, 4/28/2001, 4/30/2001, 5/5/2001; first date listed not in Decl.
Pl: 4/12/2001, 4/28/2001. 4/30/2001, 5/5/2001 Def: None

05/30/2001; 06/05/2001 Decl. says 5/16

Pl: 6/30/2001 ; **Decl. says 6/22/2001; Def: None

Pl: 5/30/2001 Def: None

Pl: 6/5/2001 None

Def: Pl: 6/30/2001 ; **Decl. says 6/22/2001; Def: None

Appendix A, 3 of 4

Plaintiff
61 WEBB, RICHARD

Case 1:01-cv-02221-EGS Document 151-1 Filed 03/19/07 Page 4 of 4
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX A: Claims Represented as Exhausted accourding to Counsel Charts (Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Case Number Civ. A. 04-320

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

Pro Se (1) 2003 promotion

P: 5/10/2003, D: 11/06/2003 10/09/2003 lacks standing

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

10/09/2003

10/14/2003

10/15/2003

Date mediation attended in person
10/27/2003

Appendix A, 4 of 4

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 1 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

1 ??? 2 NJA

ADAMS, DAMON ADAMS, FRANK

3 NJA

ADAMS, FRANK

4 NJA

ADAMS, FRANK

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

01-CP-13 01-CP-14
01-CP-14

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

(1). Promotions (3) HWEPlaintiff was denied opportunity to participate in the 1994 Sergeant's Promotional Process.

11/30/1994

(2) Discipline (3) HWE-

06/09/2000

Plaintiff filed charges

against an officer for making

untruthful statements.

Charges were never

investigated and the office

was never disciplined.

N/A

04/12/2001

None

05/30/2001

06/05/2001

07/23/2001 08/03/2001

05/30/1995

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

12/09/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14

(3) HWE- Management

11/20/2000

continually disregarded

Plaintiff's recommendations

by refusing to sufficiently

discipline officers for

violations of Department

policy as well as violations of

the law; E.G.; a hostile,

undisciplined white K-9

officer was accused by a

white female rookie of 1.

ordering her to falsify traffic

tickets, 2. lying to the

dispatcher 3. violating a

female citizen's rights during

an illegal stop. 4. advising

the female rookie that she

would never be a K-9 officer

unless she was a "dyke"

(lesbian) then asked her "are

you a dyke?" Plaintiff

became aware that the K-9

officer received discipline

amounting to a slap on the

wrist for his egregious

behavior in complete

dichotomy with Plaintiff's

recommendations.

04/04/2001

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

Appendix B, 1 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 2 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

5 NJA

ADAMS, FRANK

6 NJA

ADAMS, FRANK

7 NJA

ADAMS, FRANK

8 NJA

ADAMS, FRANK

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

01-CP-14

(3) HWE - Management

04/30/2000

official and Crime Scene

technician were accused of

making fun and laughing at a

book about Dr. Martin Luther

King which was in

possession of a white female

officer.

10/21/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14

(3) HWE - Technician

04/04/2000

disrupted roll-call that

Plaintiff was conducting.

Officer told Plaintiff that if he

was ordered to walk his

canine, he would refuse.

10/04/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14 01-CP-14

(3) HWE - Plaintiff was

03/20/2000

harassed by a white

Sergeant ; e.g. loud music,

smoking, and threatening

language, intervention in

behalf of white officers . A

PD-3 Lieutenant and

supporter of the HWE

witnessed this activity but

took no action. This same

Lieutenant often worked well

into to P-1 shift in order to

undermine black leadership

on P-1 and report back to

managing officials.

(3) HWE - Management official often referred to MPD as Ghetto Police. Reference to predominately black citizenry and Police Department.

03/16/2000

09/20/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

09/16/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

9 NJA

ADAMS, FRANK

01-CP-14

(3) HWE- USCP officers 01/24/2000 recruited two MPD officers to file a frivolous complaint through the FOP (Union) against Plaintiff.

07/24/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

Appendix B, 2 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 3 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

10 NJA

ADAMS, FRANK

11 NJA

ADAMS, FRANK

12 NJA

ADAMS, FRANK

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

01-CP-14

(3) HWE- Management

11/20/1999

ignored Plaintiff's concerns.

Example- Plaintiff's concerns

that a K-9 officer, knowingly

took a prisoner who was

experiencing mental

problems to the Central Cell

Block rather than the

hospital in violation of

Department policy, were

ignored.

05/20/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14

(3) HWE - Inspector and 11/09/1999 Captain attempted to pressure Plaintiff into not filing a complaint against individual who worked with white officers to undermined Plaintiff's authority. When Plaintiff exercised his rights and filed the complaint against Inspector, Captain and the individual retaliated against him.

05/09/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14

(3) HWE - A Union Representative made untruthful statements when he attempted to get an officer to file a grievance against Plaintiff. His efforts were coordinated with a management official . Plaintiff filed a complaint against individual an which was never investigated.

11/02/1999

05/02/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

Appendix B, 3 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 4 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

13 NJA

ADAMS, FRANK

14 NJA

ADAMS, FRANK

15 NJA 16 NJA

ADAMS, FRANK ADAMS, FRANK

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

01-CP-14

(3) HWE - Sergeant aligned 11/02/1999 himself with white officers in their attempt to undermine Plaintiff's authority and competence as a Sergeant when he tried to convince an officer, through the use of untruthful statements, that Plaintiff was wrong in his decision involving a vehicle pursuit.

05/02/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14

(3) HWE - Union Rep, made a false statement when he advised Plaintiff's supervisor that a black officer indicated that he was filing a grievance against Plaintiff.

10/26/1999

04/26/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

01-CP-14 01-CP-14

(3) HWE - Technician filed 05/18/1999 frivolous grievance against Plaintiff.

(3) HWE - Sergeant confronted Plaintiff in an attempt to circumvent Plaintiff's authority as a Sergeant. He did this in behalf of Technician , who plaintiff documented for insubordinate behavior. Sergeant routinely demonstrated to white officers that he was with them in their efforts to undermine Afro-American leadership on Patrol Division.

05/15/1999

11/18/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

11/15/2000

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

Appendix B, 4 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 5 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

17 NJA

ADAMS, FRANK

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

01-CP-14

(3) HWE - Plaintiff

1999-2000

investigated because of

allegations by Officer which

proved to be false. Officers

refused to obey Plaintiff's

orders went home sick

instead. After Plaintiff

defused a volatile situation

involving a prisoner being

processed by officer falsely

accused Plaintiff of showing

more compassion towards

the prisoner than to him.

06/22/1905

04/12/2001

04/28/2001

05/30/2001

06/05/2001

07/23/2001 08/03/2001

18 Pro Se

ADAMS, FRANK

19 Pro Se

ADAMS, FRANK

20 Pro Se

ADAMS, FRANK

21 Pro Se

ADAMS, FRANK

03-CP-106 (CV,RP)

(3) HWE (4) Retaliation Division Commander changed Plaintiff's schedule requiring Plaintiff to work many hours of overtime for no additional monetary compensation.

01/05/2003

03-CP-106 (CV,RP)

(3) HWE (4) RetaliationDenial of Training / Assignment; e.g.; John Hopkins

08/01/2002

03-CP-106 (CV,RP) 03-CP-106 (CV,RP)

(3) HWE (4) Retaliation The Division Commander used hostile and disrespectful language towards Plaintiff, "I will transfer your ass."

10/28/2002

(3) HWE (4) Retaliation. Plaintiff was involuntarily transferred from Patrol Division to a position which resulted in a 10 % loss of pay. Instead of the Department transferring the officers and officials who created the HWE, the Department transferred Plaintiff under the fictitious premise that "All Sergeants and Lieutenants will be reassigned."

06/03/2001

06/05/2003

12/9/03

12/9/03

1/8/04

1/20/04

3/15/04

3/15/04

02/01/2003

12/9/03

12/9/03

1/8/04

1/20/04

3/15/04

3/15/04

04/28/2003

12/9/03

12/9/03

1/8/04

1/20/04

3/15/04

3/15/04

12/03/2001

12/9/03

12/9/03

1/8/04

1/20/04

3/15/04

3/15/04

Appendix B, 5 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 6 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

22 Pro Se 23 Pro Se 24 Pro Se 25 Pro Se
26 ??? 27 NJA 28 NJA 29 ??? 30 ??? 31 ??? 32 ??? 33 ???

ADAMS, FRANK

03-CP-106 (CV,RP)

(3) HWE (4) Retaliation-

11/01/2001

Denial of Training /

Assignment; e.g.; CI School

05/01/2002

12/9/03

12/9/03

ADAMS, FRANK ADAMS, FRANK ADAMS, FRANK

04-CP-32(CV, RP) 04-CP-32(CV, RP) 04-CP-32(CV, RP)

(3) HWE (4) RetaliationDenial of Training / Assignment; e.g.; John Hopkins

08/28/2003

(3) HWE (4) Retaliation Non- 12/15/03 Support (Callaway, Assistance Torrence)

(3) HWE (4) Retaliation -Non- 1/6/04 support. Unprofessional Language (Callaway). "You embarrass me". Don't communicate with the Chief…. etc.

2/28/04 6/15/04 7/6/04

8/16/04

8/16/04

8/16/04

8/16/04

8/16/04

8/16/04

AKIN, CHARLES D. 01-CP-310

ALLEN, EARL

01-CP-297

ALSTON, VERNON 01-CP-18

ANDERSON, MARSHA 01-CP-333

ANDERSON, ROY

01-CP-16

ANDERSON, ROY

01-CP-16

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration (1) 2000 Sgt.'s promotion process
(3) HWE

None

N/A

Retired 10/1/2000

03/30/2001

04/30/2001 04/28/2001

None

N/A

04/12/2001

None

N/A

05/11/2001

Pl: 11/2000

Pl: 5/2001

Pl: 4/12/2001

Def: 2002 or 2004/

Def: 2002 or 2004 Def: None

lacks standing for 2000

None within 180 days of N/A counseling request

04/12/2001

04/30/2001 04/28/2001
None None
Pl: 4/12/2001 Def: None 04/12/2001

AUGUSTUS, AUDREY 01-CP-19 (deceased)

BAILEY, SHERRY

01-CP-20

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

None

N/A

04/12/2001

05/05/2001

1/8/04

1/20/04

9/18/04

9/20/04

9/18/04

9/20/04

9/18/04

9/20/04

05/30/2001

06/05/2001

05/30/2001

06/05/2001

05/30/2001

06/05/2001

05/30/2001

06/05/2001

Pl: 5/30/2001 Def: None

Pl: 6/5/2001 Def: None

05/30/2001

06/05/2001

05/30/2001

06/05/2001

05/30/2001

06/05/2001

3/15/04

3/15/04

10/20/04

12/27/04

10/20/04

12/27/04

10/20/04

12/27/04

None

08/03/2001

07/23/2001 08/03/2001

None None None None None

08/03/2001
08/03/2001
Pl: 8/3/2001 Def: None 08/03/2001
08/03/2001

None

08/03/2001

34 ???

BAILEYWASHINGTON, MONICA

01-CP-358

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

05/15/2001

None

Appendix B, 6 of 27

06/18/2001

06/27/2001

None

08/03/2001

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 7 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

35 Pro Se

BALDWIN, KENNETH 01-CP-21

Requests Dismissal

36 ??? 37 ??? 38 ???

BANKS, DARYL

01-CP-22

BASS, TRENTON

01-CP-23

BENNETT, LARRY

01-CP-24

39 GA 40 ??? 41 NJA 42 ??? 43 ???

BLACK, CLARENCE None

BLACKSTON, LEWIN 01-CP-26

BLAND, SHIRLEY

01-CP-27

BLOXSON, DARRIN 01-CP-28

BOGGS, ERIC

01-CP-29

44 GA 45 GA 46 ???

BOLDEN-WHITAKER, 01-CP-30 REGINA
BOLDEN-WHITAKER, 01-CP-30 REGINA
BOND-JONES, HELEN 01-CP-31

47 Pro Se

BOONE, GAYLE

01-CP-327

48 ???

BOOTH, JR., WILBERT 01-CP-32

49 NJA

BOWMAN, ARMANDO 01-CP-33

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration (3) HWE
(4) Non-selection as bus driver
Not identified as Plaintiff or Witness in Motion for Reconsideration Requests Dismissal

None
None
None
None
Pl: "Day 1 to present"/Continuing Violation Pl: 1/**/2001 Def: Not in Complaint/no vacancy None

N/A N/A N/A N/A N/A 7/**/2001 N/A

04/12/2001

None

04/12/2001

None

04/12/2001

None

None

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001 04/12/2001

4/12/2001 4/28/2001 4/30/2001 04/12/2001

04/12/2001

None

Not identified as Plaintiff or Witness in Motion for Reconsideration
(4) lateral transfer

None 11/xx/2000

N/A

04/12/2001

None

4/30/2001 or later 04/12/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None

None

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001
08/03/2001 08/03/2001

50 GA

BRADFORD, GRADY 01-CP-35

Not identified as Plaintiff in None within 180 days of N/A Motion for Reconsideration counseling request

04/12/2001

05/05/2001

05/20/2001

06/05/2001

None*

08/03/2001

Appendix B, 7 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 8 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

51 ??? 52 ???

BRADLEY, SYLVIA 01-CP-36 BRASWELL, ROBERTS 01-CP-37

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Requests Dismissal

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

53 ??? 54 Pro Se 55 56 Pro Se 57 NJA 58 NJA 59 ??? 60 ??? 61 ??? 62 ??? 63 ??? 64 Pro Se

BROOKS, RANI

01-CP-38

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

BROOKS, TYRONE 01-CP-39

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

BROOKS, TYRONE
BROWN-JAMES, SANDRA

CA 04-0320 (03-CP-83) (1) 2003 Sgt.'s promotion

process

CA 04-0320

Requests Dismissal

Pl: 5/10/2003 Def: lacks standing

11/06/2003

BULL, KEVIN BULL, KEVIN

01-CP-336

BULLOCK, LORETTA 01-CP-40

BUTLER, ALPHONSO 01-CP-298

BUTLER, SAPHONIA 01-CP-41

BYRD, KAYLANA

01-CP-42

CALDWELL, JR., JOHN 01-CP-43 W.
CANNADY, STEPHEN None

(1) 2000 Sgt.'s promotion process (3) HWE
Not identified as Plaintiff or Witness in Motion for Reconsideration

Pl: 11/2000

Pl: 5/2000

Def: No 2000 promotion Def: N/A

Pl: ??? Def: None within 180 days of counseling None

Pl: ??? Def: N/A
N/A

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Requests Dismissal

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None

08/03/2001

10/09/2003

10/14/2003

10/15/2003

10/27/2003 11/17/2003

05/11/2001 05/11/2001

None None

04/12/2001

None

05/30/2001 05/30/2001

06/05/2001 06/05/2001

None None

05/30/2001

06/05/2001

None

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001

65 ??? 66 GA

CARTER, BRYAN

01-CP-44

CATHION, KEITH

None

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration

None None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

None

None

None

None

None*

None

Appendix B, 8 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 9 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

67 ??? 68 ??? 69 ??? 70 ???

CHESTNUT, BONNIE None (civilian)

CHRISTIAN, JOE

None

CLARK PERNELL

01-CP-45

CLAY, KAREN D.

01-CP-46

71 ???

CLEVELAND, WILLIAM 01-CP-47

72 NJA

COFFER, CHARLES 01-CP-49

73 ???

COLLINS, REGINALD 01-CP-50

74 Pro Se 75 ??? 76 ??? 77 ???

COVINGTON, MICHAEL
COWARD, DORIAN

01-CP-51 01-CP-52

CREEKMUR, J CARROLL
CURTIS, MONTE

01-CP-325 01-CP-319

78 ???

CURTIS, RONALD

01-CP-318

79 ???

DAVIS, BEVERLY

01-CP-53

80 ???

DAVIS, WILLIAM C. 01-CP-54

81 ???

DEAS, JOE (deceased) None

82 ???

DENEAL, SHAWN

01-CP-55

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff in None within 180 days of N/A Motion for Reconsideration counseling request

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

None

None

None

None

04/12/2001

None

04/12/2001

None

None

None

None

None

None

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

04/12/2001

04/12/2001

05/05/2001

05/11/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/05/2001

05/05/2001

05/30/2001

06/05/2001

None

05/05/2001

05/05/2001

05/30/2001

06/05/2001

None

04/12/2001

05/05/2001

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

None

None

None

None

None

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001

Appendix B, 9 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 10 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

83 ???

DICKENS, WILLIE

None

84 GA 85 ???

DIGGS, WILLIAM

01-CP-56

DINGLE, RAYMOND 01-CP-303

86 NJA

DIXON, DONALD

01-CP-57

87 NJA

DIXON, JERRY

None

88 Pro Se 89 ???

DIXON, TYRONE DOVE, YVONNE

01-CP-58 01-CP-342

90 Pro Se 91 ???

DUNCAN-WOODLAND, 01-CP-214 CHERYL

DUNKLIN, LEO

01-CP-64

92 ??? 93 ??? 94 ???

EDWARDS, MARCUS 01-CP-66

EDWARDS, VANESSA 01-CP-67 H.

EMORY, KEITH

None

95 GA

EUILL, JOHN

01-CP-68

96 ??? 97 ???

EVANS, KEVIN R.

01-CP-69

EVANS, KIM Y.

01-CP-306

98 Pro Se

EWINGS, KIM

01-CP-70

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None within 180 days of N/A counseling request

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Dismissed without prejudice 3/31/2006

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Requests Dismissal

None

None

None

None

None

04/12/2001

None

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

None

None

None

None

None

04/12/2001

None

05/11/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

None

None

04/12/2001

None

04/12/2001

None

05/09/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None

None

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001

Appendix B, 10 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 11 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

99 ??? 100 GA 101 GA

FARMER, RHONDA 01-CP-307

FIELDS, ARNOLD

01-CP-71

FIELDS, ARNOLD

01-CP-71

Not identified as Plaintiff or Witness in Motion for Reconsideration (2) Discipline
(3) HWE

None
Pl: 1/2/2001 Def: None within 180 days of counseling Early 2001

N/A
Pl: 7/1/2001 Def: N/A 07/02/2001

05/09/2001

None

04/12/2001 04/12/2001

4/30/2001 5/5/2001
04/30/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None*

08/03/2001 08/03/2001 08/03/2001

102 ??? 103 ??? 104 ??? 105 Pro Se 106 ??? 107 ??? 108 ??? 109 NJA 110 NJA 111 Pro Se 112 ???

FLEMING, DAVID

01-CP-313

FLEMING, DEFOREST 01-CP-73 L. FLEMING, MARCUS 01-CP-72
FOUNTAIN, ROBERT 01-CP-74

FUNDERBURK, MICHAEL
GAINES, LARRY

01-CP-75 01-CP-359

GIBSON, GEORGE None

GOINES, GARY D.

01-CP-076

GOINES, GARY D.

GOINES, GARY D.

CA 04-0320

GOLSBY, TIERRE B. 01-CP-77

113 ???

GOODINE, RAYMOND 01-CP-62

114 ???

GRAHAM, JR., JAMES 01-CP-78

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration (1) 2000 Sgt.'s promotion process
(3) HWE

None

N/A

None

N/A

None

N/A

Pl: 11/2000 Def: Plaintiff's declaration allegations
03/18/1999

Pl: 5/2000 Def: N/A
09/14/1999

(1) 2003 Sgt.'s promotion process Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

Pl: 5/10/2003 Def: lacks standing None
None
None

11/06/2003 N/A N/A N/A

05/09/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001

05/15/2001

None

None

None

04/12/2001

04/30/2001

04/12/2001

04/30/2001

10/09/2003 04/12/2001

None

06/18/2001

06/27/2001

None

08/03/2001

None

None

None

None

05/30/2001

06/05/2001

None

08/03/2001

05/30/2001

06/05/2001

None

08/03/2001

10/14/2003 05/30/2001

10/15/2003 06/05/2001

10/27/2003 None

11/17/2003 08/03/2001

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 11 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 12 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

115 NJA 116 ???

GRAVES, ERIC GRAY, MARK A.

None 01-CP-79

117 ???

GRAY, PATRICK F. 01-CP-80

118 Pro Se

GREAR, LARRY

01-CP-81

119 GA

GREEN, ALVIN

None

120 NJA

GREEN, CLIFFORD 01-CP-337

121 ???

GREEN, PAMELA J. 01-CP-63

122 ???

GREEN, TAMMIE D. 01-CP-82

123 ??? 124 GA 125 ???

GRICE-WASHINGTON, 01-CP-341 CLARA

GRIFFIN, JAMES

01-CP-296

GUISE, LYNWOOD 01-CP-83

126 ??? 127 GA 128 ??? 129 ???

GUPTON, SR., JAMES 01-CP-84

HAIZLIP, CLARENCE 01-CP-85

HAMILTON, DEREK None

HAMLETT, DAVID

01-CP-59

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

Not identified as Plaintiff in None within 180 days of N/A Motion for Reconsideration counseling request

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff in Retired 2/1998

N/A

Motion for Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or Witness in Motion for Reconsideration
(4) Non-selection as bus driver

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

None

None

04/12/2001

None

None

None

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

None

None

None

None

None*

05/11/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None*

05/11/2001

None

04/28/2001

04/28/2001

04/12/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

04/12/2001

None

04/12/2001

None

None

None

04/12/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

None

None

None

05/30/2001

06/05/2001

None

None 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001

Appendix B, 12 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 13 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

130 GA 131 ??? 132 Pro Se 133 GA 134 ???

HARDING, EARNESTINE

01-CP-86

HARPER, III, MACCO 01-CP-87

HARRELL, TIMOTHY 01-CP-88

HARRIS, AVE MARIA 01-CP-89

HARRIS, JR., JOHN R. 01-CP-340

135 ??? 136 Pro Se 137 ??? 138 ??? 139 ???

HARRISON, MARK 01-CP-353

HARRIS-SANABRIA, 01-CP-90 ROBIN

HART, MOSES

None

HICKMAN, FRENTRESS
HICKS, NIKKOL P.

None 01-CP-91

140 GA 141 ??? 142 Pro Se 143 NJA 144 NJA

HOWARD, JERRY

01-CP-92

HUDSON, LARRY

01-CP-320

HUNTER, TIMOTHY 01-CP-93

IKARD, LARRY

01-CP-94

IKARD, LARRY

01-CP-94

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff in Motion for Reconsideration

None None Late 1999

N/A N/A mid-2000

04/12/2001 04/12/2001 04/12/2001

Not identified as Plaintiff in Spring 1998 Motion for Reconsideration

Fall 1998

04/12/2001

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Dismissed without prejudice 3/31/2006

N/A

05/11/2001

N/A

05/15/2001

04/12/2001

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

None None 04/12/2001 04/12/2001

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None 01/13/1997

N/A 07/12/1997

05/09/2001 04/12/2001

(1) 1999 K-9 Selection Process

Pl: 2/12/2001; Def: 6/20/2000

Pl: 8/11/2001; 04/12/2001 Def: 12/17/2000

(3) HWE

11/17/2000

05/16/2001

04/12/2001

None None 05/05/2001 04/28/2001 None None None None None None 04/28/2001 None None None None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

06/18/2001

06/27/2001

None

05/30/2001

06/05/2001

None

None None

None None

None None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 None None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001

145 NJA

INABINET, DWAYNE 01-CP-60

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 13 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 14 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

146 ??? 147 NJA 148 ??? 149 ???

IRBY, KOREY

01-CP-95

JACKSON, BERNARD 01-CP-96

JACKSON, EDWARD 01-CP-97

JACKSON, GREGORY 01-CP-98

150 ??? 151 ??? 152 ??? 153 ???

JACKSON, KEVIN

01-CP-329

JACKSON, MELDON 01-CP-99

JACKSON, WAINWRIGHT

01-CP-100

JACOBS, GREGORY 01-CP-101

154 ??? 155 ??? 156 ??? 157 ??? 158 Pro Se

JACOBS, HENRY

01-CP-347

JAMES, STEPHEN T. 01-CP-102

JAMISON, DENEA

01-CP-103

JENKINS, CARLETON 01-CP-104

JENKINS, MICHAEL 01-CP-218

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Requests Dismissal

None None None None None None None None None None None None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/15/2001

None

06/18/2001

06/27/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

159 GA 160 ??? 161 ???

JENKINS, THOMAS L. 01-CP-295 JENNINGS, RODERICK 01-CP-105

JETER, JR.,

01-CP-314

CLARENCE (deceased)

Not identified as Plaintiff in Retired 8/1999

N/A

Motion for Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

04/28/2001

04/28/2001

04/12/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/09/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001

Appendix B, 14 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 15 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

162 ??? 163 ??? 164 GA

JOHNSON, ARVA

01-CP-106

JOHNSON, FRANK None

JOHNSON, JOHN N. 01-CP-107

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
(1) 2000 Sgt.'s promotion process

None
None
11/4/2000 Def: Lacks Standing

N/A N/A 05/03/2001

04/12/2001

None

None

None

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None

None

None

None

05/30/2001

06/05/2001

None*

08/03/2001 None 08/03/2001

165 GA 166 GA

JOHNSON, JOHN N. CA 04-0320 (03-CP-81) (1) 2003 Sgt.'s promotion process

Pl: 5/10/2003 Def: lacks standing

JOHNSON, WILLIE 01-CP-317

(3) HWE

Retired 1/3/2000

11/06/2003 N/A

10/09/2003

05/05/2001

05/05/2001

10/14/2003

10/15/2003

10/27/2003 11/17/2003

05/30/2001

06/05/2001

None*

08/03/2001

167 ??? 168 ??? 169 ???

JOHNSON-

01-CP-108

REYNOLDS, LAVERNE

JONES, JR., NAUDAIN None (deceased)

JONES, LINVAL

None

170 ??? 171 ???

JONES, MERVIN

None

JONES, RONALD P. 01-CP-109

172 ??? 173 ??? 174 ???

JONES, THEORTIS 01-CP-110

KENNEDY, JAMES None

KENNEDY, MACK

01-CP-311

175 ??? 176 Pro Se 177 ???

KENNEDY, WANDA 01-CP-111

KILLEBREW, MICHAEL 01-CP-112

KYLE, DOROTHY

01-CP-350

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Requests Dismissal

None None None None None None None None None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

05/05/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

None

None

None

None

None

None

N/A

None

None

None

None

None

None

N/A

None

None

None

None

None

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

None

None

None

None

None

None

N/A

04/30/2001

04/30/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

04/30/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/15/2001

None

Appendix B, 15 of 27

06/18/2001

06/27/2001

None

08/03/2001

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 16 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

178 ??? 179 ??? 180 ??? 181 ??? 182 ??? 183 GA 184 GA 185 GA 186 Pro Se

LAMBERT, ALANA

None

LANCESLIN, JOHN 01-CP-61

LANDRUM, JANICE 01-CP-299

LANE, LONNIE

01-CP-114

LASSITER, SYLVIA 01-CP-312

LASSITER-NORRIS, 01-CP-144 CYNTHIA

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None None None None 1992

LATSON, GOVERNOR CA 04-0320 (03-CP-85) (1) 2003 Sgt.'s promotion process

Pl: 5/10/2003 Def: lacks standing

LATSON, GOVERNOR 01-CP-328

Not identified as Plaintiff in None Motion for Reconsideration

LATSON, MARK

01-CP-113

Requests Dismissal

N/A N/A N/A N/A N/A N/A 11/06/2003 N/A

None

None

04/12/2001

None

None

None

None

05/30/2001

06/05/2001

None

None 08/03/2001

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

08/03/2001

04/12/2001

None

04/30/2001

04/30/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001

04/12/2001

None

10/09/2003

05/11/2001

None

05/30/2001

06/05/2001

None*

08/03/2001

10/14/2003

10/15/2003

10/27/2003 11/17/2003

05/30/2001

06/05/2001

None*

08/03/2001

187 ???

LINDO, ERRINGTON 01-CP-115

188 Pro Se 189 ???

LOFTY, JEROME

01-CP-116

LUCAS, ANTHONY 01-CP-117

190 Pro Se

LUCKEY, BRENDA

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None

Not identified as Plaintiff or Witness in Motion for Reconsideration
Requests Dismissal

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

191 ??? 192 GA 193 NJA

LUCKEY, SR., CLARENCE
LUMPKIN, ROBERT

01-CP-119 01-CP-120

LUTRELL, SHERYL 01-CP-338

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff in Motion for Reconsideration

None 1989

Not identified as Plaintiff in None Motion for Reconsideration

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None*

08/03/2001

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 16 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 17 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

194 NJA
195 ??? 196 NJA 197 ??? 198 ??? 199 ??? 200 ??? 201 GA 202 Pro Se 203 ??? 204 ??? 205 ??? 206 GA 207 GA

MACON, DERRICK W. 01-CP-121

MAEDEL, JR., WILLIAM 01-CP-122

MALLOY, DANIEL

01-CP-123

MALLOY, MICHAEL 01-CP-335

MARSHALL, JOSEPH None TYRONE

MARTIN-WILCHER, BRANDY

01-CP-202

MASSIE, DAVID

01-CP-124

MASSIE, RONNIE

01-CP-125

(1) 1990 Sgt. Promotion process (2) Discipline (3) HWE

11/30/2000

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None None None 1990

04/30/2001
N/A N/A N/A N/A N/A N/A 1990 or 1991

MATTHEWS, KEVIN 01-CP-126

(3) HWE/Discipline

2/13/2001 Def: FRCP 12(b)(6)

08/12/2001

MAUNEY, DAWNYA MCCATTY, KEISHA MCCOY, OLLIE MCELROY, DANNY L.

01-CP-127

Not identified as Plaintiff or Witness in Motion for Reconsideration

01-CP-128

Not identified as Plaintiff or Witness in Motion for Reconsideration

01-CP-129

Not identified as Plaintiff or Witness in Motion for Reconsideration

CA 04-0320 (03-CP-75) (1) 2003 Sgt.'s promotion process

None
None None
Pl: 5/10/2003 Def: lacks standing

N/A N/A N/A 11/06/2003

MCELROY, DANNY L. 01-CP-130

(3) HWE

3/xx/2001 Def: FRCP 12(b)(6)

9/xx/2001

04/12/2001
04/12/2001 04/12/2001 05/11/2001 None 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 10/09/2003 04/12/2001

04/12/2001; NOT 05/30/2001 ACCORDING TO DECLARATION

None

05/30/2001

06/05/2001 06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None

None

None None

05/30/2001

06/05/2001

05/30/2001

06/05/2001

04/28/2001

05/30/2001

06/05/2001

04/30/2001 None

05/30/2001

06/05/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

10/14/2003

10/15/2003

04/12/2001

05/30/2001

06/05/2001

Pl: 6/22/2001 08/02/2001 Def: None

None

08/03/2001

None

08/03/2001

None

08/03/2001

None

None

None None

08/03/2001 08/03/2001

None*

08/03/2001

None None

08/03/2001 08/03/2001

None

08/03/2001

None

08/03/2001

10/27/2003 11/17/2003

None*

08/03/2001

208 ??? 209 ???

MCILWAIN, DINA

01-CP-131

MCNAIR, SAMUEL

01-CP-324

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

None None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 17 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 18 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

210 ??? 211 NJA 212 ??? 213 ???

MIHILIS, SPIRO

01-CP-134

MILLS, BRENT A.

01-CP-132

MITCHELL, JEANITA 01-CP-133

MOFFETT, ALRFED None

214 ???

MOORE, JOCELYN 01-CP-135

215 Pro Se

MOORE, JOSEPH

01-CP-330

216 ???

MOORE, JR., MORRIS 01-CP-138

217 ???

MOORE, MONIQUE 01-CP-137

218 ???

MOORE, RENOARD 01-CP-136

219 ??? 220 Pro Se 221 ???

MORAN, LUANNE

01-CP-343

MORGAN, TERESA (BRADBY)
MORRIS, DENISE

01-CP-351 01-CP-219

222 ???

MORTON, CLARK

01-CP-139

223 ???

MOTLEY, ADRIAN

01-CP-140

224 Pro Se

NANTON, CHARLES 01-CP-142

Not identified as Plaintiff or Witness in Motion for Reconsideration (1) 1998-2000 Sgt. Promotion
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None
Pl: 11/5/2000 & 2/xx/2001 Def: 10/1/2000 None
None

N/A
Pl: 5/4/2001 & 8/xx/2001 Def: 3/30/2001 N/A
N/A

None

N/A

None within 180 days of N/A counseling request

04/12/2001 04/12/2001 04/12/2001 None 04/12/2001 05/11/2001

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

N/A

04/12/2001

N/A

04/12/2001

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Dismissed without prejudice 3/31/2006

N/A

05/11/2001

N/A

05/15/2001

N/A

04/12/2001

N/A

04/12/2001

N/A

04/12/2001

04/12/2001

None 04/28/2001 None None None None None None None
None None None None None None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None

None

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001

05/30/2001

06/05/2001

None

08/03/2001

06/18/2001

06/27/2001

07/25/2001 08/03/2001

05/30/2001

06/05/2001

None

08/03/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001

Appendix B, 18 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 19 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

225 ???

NELSON, DAVID

01-CP-360

226 ???

NEWELL, GLENN

01-CP-143

227 ??? 228 Pro Se 229 ???

NEWTON, MARCELUS 01-CP-357 (civilian)

NIXON, BARRY

01-CP-308

NOWDEN, CLARENCE None

230 ???

ODOM, BRANDELL 01-CP-322

231 ???

OREM, PAULA

01-CP-145

232 Pro Se 233 ??? 234 ??? 235 GA

PARKER, CYNTHIA EDWARDS
PARKER, SHERRIE

01-CP-165 None

PARKER, TRUDY

01-CP-146

PATTERSON, MARVIN 01-CP-147

236 ???

PERKINS, SHERRIE None

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for
Not identified as Plaintiff in Motion for Reconsideration

None None None 04/05/2000

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

None None None

Dismissed without prejudice 3/31/2006

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff in Motion for Reconsideration

None None Early 1986

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A N/A N/A 10/02/2000 N/A N/A N/A

05/15/2001

None

06/18/2001

06/27/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

05/15/2001 05/05/2001

None 05/05/2001

None

None

06/18/2001 05/30/2001

06/27/2001 06/05/2001

None None

None

None

None

05/09/2001

None

05/30/2001

06/05/2001

None

04/12/2001

05/05/2001

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001

N/A N/A Late 1986 N/A

04/12/2001 None

None None

04/12/2001

None

04/12/2001

04/28/2001

None

None

05/30/2001 None

06/05/2001 None

None None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

None

None

None

08/03/2001 None 08/03/2001 08/03/2001 None

237 Pro Se

PETERSON, LUTHER

238 Pro Se

PETERSON, LUTHER

(2) Discipline (CP-535)

11/22/2000

05/21/2001

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None

08/03/2001

(3) HWE

None within 180 days of N/A counseling request

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 19 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 20 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

239 Pro Se

PETERSON, LUTHER 01-CP-148

240 ???

PETTIS, ANTOINETTE 01-CP-149

241 ???

PINNIX, JAMES P.

01-CP-316

242 ???

PITTMAN, KENNETH None

(1) 2000 Sgt.'s promotion process
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration

Pl: 11/2/2000 Futile Pl: 5/1/2001

Gesture

Def: N/A

Def: Not Futile Gesture

None

N/A

None

N/A

None

N/A

04/12/2001

04/12/2001

04/12/2001

None

05/05/2001

05/05/2001

None

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None

None

None

08/03/2001 08/03/2001 08/03/2001 None

243 ??? 244 ??? 245 ??? 246 ??? 247 ???

PORTEE-RAYMOND, 01-CP-309 JACQUELINE

POWELL, JAMES

None

POWELL, SR., ALBERT 01-CP-302

POWELL, WAYNE

01-CP-186

PROCTOR, JR., JAMES

None

248 ???

PROCTOR, PAUL

None

249 GA

RAGLAND, WILLIE 01-CP-151

250 Pro Se

RAINEY, BARRY

01-CP-301

251 Pro Se

REID, DORIS

01-CP-344

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff in Retired 8/1995

N/A

Motion for Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

Not identified as Plaintiff in None

N/A

Motion for Reconsideration

05/09/2001

None

05/30/2001

06/05/2001

None

None

None

None

None

None

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

04/12/2001

None

None

None

05/30/2001

06/05/2001

None

None

None

None

08/03/2001 None 08/03/2001 08/03/2001 None

None

None

None

None

None

04/12/2001

None

05/30/2001

06/05/2001

None*

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

05/11/2001

None

05/30/2001

06/05/2001

None

None 08/03/2001 08/03/2001 08/03/2001

Appendix B, 20 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 21 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

252 NJA

RHONE, MARY JANE 01-CP-345

(4) Denial of position (not None within 180 days of N/A

identified as Plaintiff in

counseling request

Motion for Reconsideration)

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

253 ??? 254 ??? 255 ???

RICHARDSON, MICHAEL
RICHARDSON, RONALD

01-CP-152 01-CP-153

RITCHIE, JR., GLENN 01-CP-150

256 Pro Se

ROBERTS, JAMES 01-CP-155

257 Pro Se 258 ???

RODGERS, THEODORE
ROSE, DARIUS

01-CP-156 None

Not identified as Plaintiff or Witness in Motion for NRot idenidtifiedias Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff in 03/20/1990 Motion for Reconsideration

09/16/1990

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

04/12/2001 04/12/2001

None None

05/30/2001 05/30/2001

06/05/2001 06/05/2001

None None

04/12/2001

None

05/30/2001

06/05/2001

None

04/12/2001

04/30/2001

05/30/2001

06/05/2001

None

None

None

None

None

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001
None

259 ??? 260 ???

ROSE, THOMAS ROSS, FELICIA

None 01-CP-157

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration

None None

N/A

None

None

None

None

None

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

261 Pro Se 262 ??? 263 ??? 264 ??? 265 Pro Se 266 ???

ROSS, LEONARD ROSS, LEONARD

01-CP-158

Not identified as Plaintiff in 1999 Motion for Reconsideration

CA 02-2481 (02-CP-47) (2) Discipline/Retaliation

RUDD, LLOYD S.

01-CP-159

RUSH, GREGORY (deceased)
SCOTT, DARYL

01-CP-160 01-CP-161

SCOTT, STEVEN S. 01-CP-162

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for NRot idenidtifiedtias Plaintiff in Motion for Reconsideration

None None None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

1999-early 2000 04/12/2001

04/30/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 21 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 22 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

267 ???

SCRUGGS, JEFFREY 01-CP-163

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

268 ???

SENN, GLYNIS

01-CP-164

269 ???

SHAW, KENNETH

01-CP-166

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

270 ???

SHIELDS, CALVIN K. 01-CP-167

271 Pro Se

SHIELDS, LEROY

None

272 ???

SHIRLEY, MICHAEL 01- CP-168

273 Pro Se

SIMMONS, DORMAN 01-CP-169

274 ???

SIMPSON, JOSEPH 01-CP-171

275 ???

SIMPSON, JR., FLOYD 01-CP-170

276 Pro Se

SMITH, CONRAD

CA 04-0320

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

None None None None None None

Requests Dismissal

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

None

None

None

None

None

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

277 Pro Se

SMITH, CONRAD

None

Requests Dismissal

278 ??? 279 ???

SMITH, JR., HENRY 01-CP-172

SMITH, MARUITA

01-CP-323

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

None None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 22 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 23 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

280 ???

SMITH, SAMUEL

01-CP-173

Not identified as Plaintiff or Witness in Motion for Reconsideration

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

281 NJA 282 GA

SPAVONE, THOMAS 01-CP-305 SPEIGHTS, PINKNEY 01-CP-174

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None None

N/A

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None*

08/03/2001

283 NJA 284 ??? 285 ??? 286 ??? 287 ??? 288 ??? 289 ??? 290 ??? 291 ??? 292 NJA 293 GA 294 NJA

SPRATT, ROBERT 01-CP-175

SPRIGGS, CHAUNCEY 01-CP-326

SPRIGGS, MICHAEL 01-CP-176

SPRUILL, ROBERT 01-CP-177

SQUIRES, CLAUDETTE

01-CP-178

STEWARD, KEITH L. 01-CP-179

STEWART, ROBERT E. 01-CP-180

STRAUGHN, REGINALD M.

01-CP-181

STURDIVANT, DWIGHT

01-CP-182

SUMLIN, PATRICIA 01-CP-305

SUMMERS, WENDELL None

SUTTON, CHAD

01-CP-339

Dismiss with prejudice following settlement

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration

None None None None None None None None None None None

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

05/05/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

N/A

04/28/2001

04/28/2001

05/30/2001

06/05/2001

None

08/03/2001

N/A

None

None

None

None

None*

None

N/A

05/11/2001

None

05/30/2001

06/05/2001

None

08/03/2001

Appendix B, 23 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 24 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

295 ??? 296 Pro Se

TAYLOR, SHELLY

01-CP-183

THOMAS, GERALD 01-CP-184

Not identified as Plaintiff or Witness in Motion for Reconsideration
Requests Dismissal

None

N/A

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001

297 ??? 298 ??? 299 GA 300 GA 301 ??? 302 ??? 303 ??? 304 ??? 305 ??? 306 ??? 307 ??? 308 GA 309 GA 310 GA

THOMPSON, ANWAR 01-CP-185

THOMPSON, KENNIETH
THORNE, JASPER

01-CP-300 None

TRADER, DAVID

None

TRADER, GLADYS 01-CP-187

TUCKER, TYRONE 01-CP-188 TURNER, III, CLINTON 01-CP-189

VEAL, DALE

01-CP-190

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

04/12/2001 04/28/2001 None None 04/12/2001 04/12/2001 04/12/2001 04/12/2001

WASHINGTON, ANTHONY

10-CP-191

WASHINGTON, IRVIN 01-CP-192

WASHINGTON, STEVEN

01-CP-193

WATERS, REGINALD 01-CP-194 W.

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
(1) 2000 Sgt.'s promotion process

WATERS, REGINALD W. WATERS, REGINALD W.

CA 04-0320 (03-CP-76) (1) 2003 Sgt.'s promotion

process

01-CP-194

(3) HWE

None
None
None
Pl: Futile Gesture 11/2000 Def: 7/18/2000 Pl: 5/10/2003 Def: lacks standing Pl: 1992-2004 Def: None within 180 days of counseling

N/A
N/A
N/A
Pl: 5/2001 Def: 1/14/2001 11/06/2003

04/12/2001 04/12/2001 04/12/2001 04/12/2001 10/09/2003 04/12/2001

None 04/28/2001 None None None None None 04/12/2001 None None None 04/12/2001
04/12/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001

None

None

None*

None

None

None

None*

None

05/30/2001

06/05/2001

None

08/03/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001

05/30/2001

06/05/2001

05/30/2001

06/05/2001

Pl: 6/30/2001 08/03/2001 Def: None

None

08/03/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001

05/30/2001

06/05/2001

None*

08/03/2001

10/14/2003 05/30/2001

10/15/2003 06/05/2001

10/27/2003 None*

11/17/2003 08/03/2001

Appendix B, 24 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 25 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

311 ??? 312 NJA 313 NJA

WEAVER. THURSTON 01-CP-195

WEBB, RICHARD

01-CP-196

WEBB, RICHARD

Not identified as Plaintiff or Witness in Motion for
(1) 1999 K-9 Selection Process

None
Pl: 02/12/2001 Def: **/**/2000

(3) HWE

11/17/2000

N/A

04/12/2001

Pl: 08/12/2001 Def: **/**/2000

04/12/2001

05/16/2001

04/12/2001

None None None

05/30/2001 05/30/2001

06/05/2001 06/05/2001

None None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001

314 ??? 315 ??? 316 ??? 317 NJA 318 ??? 319 ??? 320 ??? 321 ??? 322 ??? 323 Pro Se 324 ??? 325 ??? 326 GA

WEEMS, STEPHANIE None

WESTBROOKS, II, JAMES

01-CP-331

WHEELER, ANGELA 01-CP-197

WHEELER, RITA

01-CP-198

WHITAKER, MCARTHUR
WHITAKER, MCARTHUR
WHITAKER, MCARTHUR

01-CP-200

Not identified as Plaintiff or Witness in Motion for NRot idenidtifiedtias Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration

None None None None

N/A

None

N/A

05/11/2001

N/A

04/12/2001

N/A

04/12/2001

(1) 2000 Sgt.'s promotion process (2) Discipline
(3) HWE

Pl: Futile Gesture

Pl: 5/2001

11/2000

Def: 1/29/2001

Def: 8/2/2000

Pl: 11/**/2000

Pl: 5/2001

Def: 9/25/2000 or

Def: 3/24/2001 or

10/10/2000

4/8/2001

None within 180 days of N/A

counseling request

04/12/2001 04/12/2001 04/12/2001

WHITE, JOLANIA (SHARPS)
WHITE, MCKINLEY

01-CP-165 01-CP-201

WHITEHURST, HOWARD

01-CP-199

Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff in Motion for Reconsideration

None None Late 1999

WHITT, JAMES

01-CP-331

Not identified as Plaintiff or Witness in Motion for Reconsideration

WILKERSON, DANIEL None

Not identified as Plaintiff or Witness in Motion for Reconsideration

WILKES, FRANK

CA 04-0320 (03-CP-76) (1) 2003 Sgt.'s promotion process

None
None
Pl: 5/10/2003 Def: lacks standing

N/A N/A mid-2000 N/A N/A 11/06/2003

04/12/2001 04/12/2001 04/12/2001 05/09/2001 None 10/09/2003

None None None None 04/28/2001 04/28/2001 04/28/2001 05/05/2001 None None None None

None 05/30/2001

None 06/05/2001

None None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

None 08/03/2001 08/03/2001 08/03/2001

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001

None

None

None

None

10/14/2003

10/15/2003

10/27/2003 11/17/2003

Appendix B, 25 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 26 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

327 GA 328 ???

WILKES, FRANK

01-CP-203

WILKS, KADO

None

Not identified as Plaintiff in None Motion for Reconsideration
Not identified as Plaintiff in None Motion for Reconsideration

N/A

04/12/2001

04/12/2001

05/30/2001

06/05/2001

None*

08/03/2001

N/A

None

None

None

None

None

None

329 Pro Se

WILLIAMS, CHARLES 01-CP-205

330 ??? 331 ???

WILLIAMS, CYNTHIA 01-CP-206 N.
WILLIAMS, KATHY B. 01-CP-207

332 ???

WILLIAMS, MALCOLM 01-CP-352

333 ??? 334 ???

WILLIAMS, ROOSEVELT

None

WILLIAMS, STEFANIE 01-CP-208

335 ???

WILLIAMS, TANYA 01-CP-355

336 ??? 337 ??? 338 GA 339 ??? 340 NJA

WILLIAMS, THOMAS None

WILLIAMS, VICTORIA 01-CP-209

WILLIS, DIANNE

01-CP-204

WILSON, JOHNNY

01-CP-210

WILSON, REGINALD 01-CP-211

341 ???

WILSON, RENEE

01-CP-212

Not identified as Plaintiff in Late 1990s Motion for Reconsideration

Late 1990s

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration Not identified as Plaintiff or Witness in Motion for Reconsideration (1) Non-promotion (3) HWE

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

Not identified as Plaintiff or

Witness in Motion for

Reconsideration

Not identified as Plaintiff or None

N/A

Witness in Motion for

Reconsideration

04/12/2001

None

04/12/2001

None

04/12/2001

None

05/15/2001

None

None

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

06/18/2001

06/27/2001

None

None

None

None

04/12/2001

None

05/30/2001

06/05/2001

None

05/15/2001

None

06/18/2001

06/27/2001

None

None

None

04/12/2001

04/28/2001

04/12/2001

04/28/2001

04/12/2001

None

04/12/2001

None

None

None

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None*

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

04/12/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 None 08/03/2001 08/03/2001 08/03/2001 08/03/2001 08/03/2001

Appendix B, 26 of 27

Case 1:01-cv-02221-EGS Document 151-2 Filed 03/19/07 Page 27 of 27
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX B: Claims to Dismiss with Prejudice
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Counsel or pro se

Plaintiff

OOC Case Number

Alleged Violation(s) from

Chart A, selecting from the

following descriptions: (1)

promotion, (2) discipline, (3) hostile work

Date alleged violation

environment, or (4) other

(use a separate line for

each alleged violation)

180th day after alleged volation

Date counseling requested

Date Counseling attended in person

Date end of counseling notice received

Date of mediation
request

Date mediation attended in
person

Date end of mediation notice received

342 ??? 343 ??? 344 ??? 345 Pro Se 346 Pro Se 347 GA 348 GA

WILSON, SPENCER 01-CP-213

WOODLAND, ROBERT 01-CP-215 C.

WRIGHT, CLABE

01-CP-216

YOUNG, CRAIG

01-CP-217

YOUNG, JOHN

01-CP-332

Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff or Witness in Motion for Reconsideration
Not identified as Plaintiff in Motion for Reconsideration

None

N/A

None

N/A

None

N/A

None within 180 days of N/A counseling request

Requests Dismissal

YOUNG, KENDRICK YOUNG, KENDRICK

CA 04-0320 (03-CP-78) (1) 2003 Sgt.'s promotion process

Pl: 5/10/2003 Def: lacks standing

11/06/2003

01-CP-334

Not identified as Plaintiff in None within 180 days of N/A Motion for Reconsideration counseling request

04/12/2001

None

04/12/2001

None

04/12/2001

None

04/12/2001

None

10/09/2003 05/11/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

05/30/2001

06/05/2001

None

08/03/2001 08/03/2001 08/03/2001 08/03/2001

10/14/2003

10/15/2003

05/30/2001

06/05/2001

10/27/2003 11/17/2003

None*

08/03/2001

Appendix B, 27 of 27

Case 1:01-cv-02221-EGS Document 151-3 Filed 03/19/07 Page 1 of 1
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX C: Claims to Be Dismissed Without Prejudice

Plaintiff

Case Number

1 ADAMS, FRANK ?

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

Pro Se (3) HWE (4) Retaliation

07/15/2003

01/15/2004 12/09/2003

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

12/09/2003

01/08/2004

01/20/2004

Date mediation attended in person
03/15/2004

2

?

3

?

4

?

5

?

6

?

7

?

8

?

9

?

10

?

11

?

12

?

13

?

14

?

15

?

16
17 GREEN, TAMMIE

? Civ. A. 04-320

18 HARRIS, AVE Civ. A. 03-2644 MARIA

19 IKARD, LARRY 20 MACON,
DERRICK
21
22 MILLS, BRENT

Civ. A. 04-320 Civ. A. 03-1592
Civ. A. 03-1592 Civ. A. 04-320

Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se Pro Se
Pro Se Pro Se
GA
Pro Se Pro Se
Pro Se Pro Se

(3) HWE (4) Retaliation

07/01/2003

01/01/2004

(3) HWE (4) Retaliation

10/27/2003

04/27/2004

(3) HWE (4) Retaliation

10/28/2003

04/28/2004

(3) HWE (4) Retaliation

07/30/2003

02/29/2004

(3) HWE (4) Retaliation

08/01/2003

02/01/2004

(3) HWE (4) Retaliation

08/15/2003

02/15/2004

(3) HWE (4) Retaliation

11/18/2003

05/18/2004

(3) HWE

11/20/2003

05/20/2004

(3) HWE (4) Retaliation

11/30/2003

05/18/2004

(3) HWE

11/30/2003

05/18/2004

(3) HWE (4) Retaliation

12/28/2003

06/08/2004

(3) HWE (4) Retaliation

03/23/2004

09/23/2004

(3) HWE (4) Retaliation

06/15/2004

12/23/2004

(1) promotion (3) HWE (4)

07/01/2004

01/01/2005

retaliation

(3) HWE (4) Retaliation

07/01/2004

01/01/2005

(1) 2003 Sgt.'s promotion process Pl: 5/10/2003 11/06/2003 Def: lacks

standing

(2) & (4) (retaliatory discipline) Pl: 3/27/2003 09/23/2003

See pleadings re Def. Motion to

Dismiss for parties' dispute as to timeliness

and adverse action

(1) 2003 promotion

05/10/2003

(3) HWE (4) Age Discrimination 03/09/2003

11/06/2003 09/05/2003

12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 08/16/2004 08/16/2004 08/16/2004
08/16/2004 10/09/2003
06/27/2003
10/09/2003 03/12/2003

(3) HWE (4) Retaliation (1) 2003 promotion

03/08/2003

09/04/2003

P: 5/10/2003, D: 11/06/2003

lacks standing

03/26/2003 10/09/2003

12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 08/16/2004 08/16/2004 08/16/2004
08/16/2004 10/09/2003
07/01/2003
10/09/2003 03/14/2003
03/27/2003 10/09/2003

01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 09/18/2004 09/18/2004 09/18/2004
09/18/2004 10/14/2003

01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/20/2004 09/20/2004 09/20/2004 09/20/2004
09/20/2004 10/15/2003

08/06/2003

08/06/2003

10/14/2003 03/20/2003
03/28/2003 10/14/2003

10/15/2003 03/26/2003
03/28/2003 10/15/2003

03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/15/2004 10/20/2004 10/20/2004 10/20/2004
10/20/2004 10/27/2003
09/04/2003
10/27/2003 04/28/2003
05/01/2003 10/27/2003

23 WEBB, RICHARD

Civ. A. 04-320

Pro Se (1) 2003 promotion

P: 5/10/2003, D: 11/06/2003 10/09/2003 lacks standing

10/09/2003

10/14/2003

10/15/2003

10/27/2003

Appendix C, 1 of 1

Case 1:01-cv-02221-EGS Document 151-4 Filed 03/19/07 Page 1 of 3
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX D: Viable Claims
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Plaintiff

Case Number

1 ADAMS, FRANK Civ. A. 01-2221

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

NJA

(2) discipline (3) HWE

11/11/2000

05/11/2001 04/12/2001

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

04/28/2001

05/30/2001

06/05/2001

Date mediation attended in person
07/23/2001

2 3 4 5 6 7 8 9 10 11
12
13 14 15
16 17
18 ADAMS, SHAFTON

Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221
Civ. A. 01-2221
Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221
Civ. A. 01-2221 Civ. A. 01-2221 Civ. A. 01-2221

NJA NJA NJA NJA NJA NJA NJA NJA NJA NJA
NJA
NJA NJA NJA
NJA NJA Pro Se

(2) discipline (3) HWE (3) HWE (3) HWE (2) discipline (3) HWE (2) discipline (3) HWE (3) HWE (3) HWE (2) discipline (3) HWE (2) discipline (3) HWE (1) promotion (3) HWE (4) retaliation (2) discipline (3) HWE (4) retaliation (3) HWE (3) HWE (1) promotion (3) HWE (4) retaliation (3) HWE (3) HWE (3) HWE

19 BLACKMON- Civ. A. 04-320

GA

MALLOY,

SHARON

20

Civ. A. 01-2221 GA

(1) Lt. Promotion Exam 2003 (1) Sgt. Promotion Exam

21

Civ. A. 01-2221 GA

(3) HWE

22

Civ. A. 02-1859 GA

(4) Retaliation (smoke)

11/16/2000 11/17/2000 11/20/2000 11/30/2000 12/01/2000 12/10/2000 12/13/2000 12/23/2000 01/07/2001 01/12/2001

05/16/2001 05/17/2001 05/20/2001 05/30/2001 06/01/2001 06/10/2001 06/13/2001 06/23/2001 7/72001 07/12/2001

04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001 04/12/2001

01/12/2001

07/12/2001 04/12/2001

01/21/2001 01/22/2001 04/02/2001

07/21/2001 07/22/2001 10/02/2001

04/12/2001 04/12/2001 04/12/2001

01/11/2001 03/30/2001 Pl: Oct.-Nov. 2000 Def: Plaintiff fail to establish acts within 180 days of counseling request

07/11/2001 09/30/2001 Pl: Mar.-Apr. 2001; Def: earlier than 4/12/2001

04/12/2001 04/12/2001 04/12/2001

05/10/2003

11/06/2003 10/27/2003

04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001 04/28/2001
04/28/2001
04/28/2001 04/28/2001 04/28/2001
04/28/2001 04/28/2001 04/12/2001
10/27/2003

11/04/2000 02/23/2001 11/08/2001

05/03/2001 08/22/2001 05/07/2002

04/12/2001; Declaration indicates two additional counseling dates
04/12/2001; Declaration indicates two additional counseling dates
04/08/2002

04/12/2001 04/12/2001 04/08/2002

05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001 05/30/2001
05/30/2001
05/30/2001 05/30/2001 05/30/2001
05/30/2001 05/30/2001 05/30/2001; Declaration indicates 5/16/2001

06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001
06/05/2001
06/05/2001 06/05/2001 06/05/2001
06/05/2001 06/05/2001 06/05/2001

12/03/2003

12/04/2003

05/30/2001

06/05/2001

05/30/2001

06/05/2001

05/08/2002

05/22/2002

07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001 07/23/2001
12/23/2003
7/25/2001 6/30/2001
07/25/2001
05/22/2002

Appendix D, 1 of 3

Case 1:01-cv-02221-EGS Document 151-4 Filed 03/19/07 Page 2 of 3
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX D: Viable Claims
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Plaintiff 23 BOLDEN-
WHITAKER, REGINA
24
25 BRADFORD, CLINTON
26
27 FIELDS, ARNOLD
28
29
30 PHELPS, DUVALL
31
32 33
34 35

Case Number Civ. A. 01-2221

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

GA

(4) Retaliation (body armor

5/**/2001

11/**/2001 09/26/2001

counseling)

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

09/26/2001

10/26/2001

11/07/2001

Date mediation attended in person
Pl: 12/6/2001 Def: Bad Faith

Civ. A. 03-2644 Civ. A. 01-2221

GA Pro Se

(4) Retaliation

04/10/2003

10/07/2003

(1) 2000 Sgt.'s promotion process Pl: 11/2000

Pl: 5/2001

Def: Never

Def: N/A

completed 2000

exam process

07/11/2003 04/12/2001

07/11/2003

08/07/2003

04/12/2001;

05/30/2001;

Declaration also 5/16/2001 per

indicates

Decl.

5/5/2001

08/11/2003 06/05/2001

09/04/2003 07/25/2001

Civ. A. 01-2221 Pro Se (3) HWE

Civ. A. 02-1346 GA Civ. A. 03-1505 GA

(3) HWE/Retaliation (3) HWE/Retaliation

Civ. A. 03-2644 GA

(3) HWE/Retaliation

Civ. A. 01-2221 GA

(2) Discipline/Termination

Pl: 2/21/2001 Def: 3/3/2000

Pl: 8/20/2001 04/12/2001 Def: 8/30/2000

8/6/2001 , 8/29/2001
10/7/2002, 10/24/2002, 11/6/2002, 1/9/2003, 1/27/2003

02/25/2002 07/26/2003

Pl: 3/27/2003 09/23/2003 See pleadings re Def. Motion to Dismiss for parties' dispute as to timeliness and adverse action

01/17/2002 02/11/2003
07/01/2003

Pl: 10/31/2000 Pl: 4/29/2001 04/28/2001 Def: 6/16/2000 Def:
12/13/2000

Civ. A. 03-2644 GA

(4) Retaliation (denial of building 1/21/2002,

access)

1/23/2002

7/22/2002, 7/24/2002

02/05/2002

04/12/2001;

05/30/2001;

Declaration also 5/16/2001 per

indicates

Decl.

5/5/2001

01/17/2002

02/19/2002

06/05/2001 02/25/2002

02/11/2003

02/13/2003

02/14/2003

07/25/2001
03/14/2002 03/26/2003

07/01/2003

08/06/2003

08/06/2003

09/04/2003

4/28/2001 4/30/2001 5/5/2001
03/15/2002

05/30/2001; 06/05/2001 Decl. says 3/15, extended to 3/29

Pl: 6/30/2001, 7/23/2001, 7/25/2001 Def: None; **Decl. says 6/22

03/22/2002;

04/11/2002; Decl. 04/11/2002

Decl. says 3/15 says 3/22

Civ. A. 03-2644 GA Civ. A. 03-2644 GA

(4) Retaliation (denial of building 1/18/2002,

7/17/2002,

access)

2/5/2002

8/5/2002

(3) HWE (denied building access) 1/24/03, 1/25/03 7/23/2003,

7/24/2003

04/11/2002 02/10/2003

04/11/2002 02/10/2003

04/22/2002 02/13/2003

04/22/2002 02/13/2003

05/17/2002
3/26/03, 4/9/2003, 4/11/2003

Civ. A. 03-2644 GA Civ. A. 03-2644 GA

(4) Retaliation (credentials stolen) 7/7/2003, 7/29/2003
(4) Retaliation (denial of building 8/**/2003 access)

1/5/2004, 1/26/2004 1/**/2004

08/11/2003 09/08/2003

08/11/2003 09/08/2003

08/19/2003 09/22/2003

08/19/2003 09/22/2003

09/23/2003 09/23/2003

Appendix D, 2 of 3

Plaintiff 36 RIGGS,
VERNIER
37

Case 1:01-cv-02221-EGS Document 151-4 Filed 03/19/07 Page 3 of 3
Blackmon-Malloy v. United States Capitol Police Board (01-2221) APPENDIX D: Viable Claims
(Discrepancies between Counsel Submissions and Declarations of Plaintiffs Noted in Bold)

Case Number Civ. A. 01-2221
Civ. A. 01-2221

Counsel

Alleged Violation(s): (1) promotion, (2) discipline, (3) Date of alleged hostile work environment, or (4) violation
othern per incident

180th day after alleged
volation

Date counseling requested

GA

(4) denial of leave

10/xx/2000

March/April 04/12/2001 2001

GA

(4) Retaliation

04/13/2001

10/10/2001 Pl: 4/12/2001 Def: None

Date Counseling Date end of

attended in

counseling

person

notice received

Date of mediation
request

Date mediation attended in person

4/12/2001, 4/28/2001, 4/30/2001, 5/5/2001; first date listed not in Decl.
Pl: 4/12/2001, 4/28/2001. 4/30/2001, 5/5/2001 Def: None

05/30/2001; 06/05/2001 Decl. says 5/16

Pl: 6/30/2001 ; **Decl. says 6/22/2001; Def: None

Pl: 5/30/2001 Def: None

Pl: 6/5/2001 Def: Pl: 6/30/2001 ;

None

**Decl. says

6/22/2001; Def:

None

Appendix D, 3 of 3

 
 Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 1 of 45
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$0$1'2

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52%(57

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 (//,1*721'5,9(

68,7/$1' 0' 

)25(679,//( 0' 

:$6+,1*721 ' & 

833(50$5/%252 0' 

*$,7+(56%85* 0' 

833(50$5/%252 0' 

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7(03/(+,//6 0' 

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833(50$5/%252 0' 

6($73/($6$17 0' 

)7 :$6+,1*721 0' 

125&5266 *$ 

%$/7,025( 0' 

)25(679,//( 0'  7(03/(+,//6 0'  *5((1%(/7 0'  &/,1721 0' 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

:$6+,1*721 ' & 

&/,1721 0' 

2:,1*6 0' 

:$/'25) 0' 

7(03/(+,//6 0' 

7(03/(+,//6 0' 

7(03/(+,//6 0' 

+<$7769,//( 0' 

635,1*'$/( 0' 

833(50$5/%252 0' 

)7 :$6+,1*721 0' 

833(50$5/%252 0' 

2;21+,// 0' 

:$6+,1*721 '& 
 )25(679,//( 0' 

%(/769,//( 0' 

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 2 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

-2( 3(51(// .$5(1 :,//,$0 /8$57+85 &+$5/(6 5(*,1$/' 0,&+$(/ '25,$1 0217( 521$/' %(9(5/< :,//,$0 6+$:1 :,//,$0 5$<021' '21$/' 7<521( /(2 &<17+,$ 0$5&86 9$1(66$ .(,7+ -2+1 .(9,1 .,0 .,0 5+21'$ $512/' 0$5&86 '$9,' 52%(57 0,&+$(/ /$55< *(25*( *$5< 7,(55( 5$<021' -$0(6 0$5.

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)7 :$6+,1*721 0' 

$&&2.((. 0' 

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833(50$5/%252 0' 

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0,7&+(//9,//( 0' 

833(50$5/%252 0' 

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6($73/(6$17 0' 

/$85(/ 0' 

833(50$5/%252 0' 

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)25(679,//( 0'  )7 :$6+,1*721 0'  /$1+$0 0'  )7 :$6+,1*721 0' 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

&+(9(5/< 0' 

)7 :$6+,1*721 0' 

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68,7/$1' 0' 

%2:,( 0' 

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&/,1721 0' 

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/$85(/ 0' 

/$5*2 0' 

&2/80%,$ 0' 

&/,1721 0' 

3DJHRI %RI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 3 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

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833(50$5/%252 0' 

833(50$5/%252 0' 

67$))25' 9$ 

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&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

833(50$5/%252 0' 

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$5/,1*721 9$ 

&/,1721 0' 

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$/(;$1'5,$ 9$ 

$5/,1*721 9$ 

/$1'29(5 0' 

&/,1721 0' 

68,7/$1' 0' 

7(03/(+,//6 0' 

3DJHRI &RI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 4 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

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$11$32/,6 0'  %2:,( 0'  %2:,( 0'  :$6+,1*721 '&  &2/80%,$ 0'  )25(679,//( 0'  833(50$5/%252 0'  833(50$5/%252 0'  $/(;$1'5,$ 9$  7(03/(+,//6 0'  :22'%5,'*( 9$  5,&+648$5( 1&  )7 :$6+,1*721 0'  833(50$5/%252 0'  *$,7+(56%85* 0'  :$6+,1*721 ' &  $6+%851 9$  )7 :$6+,1*721 0'  :$6+,1*721 ' &  &/,1721 0'  :$6+,1*721 '&  :$6+,1*721 '&  :$6+,1*721 ' &  0,7&+(//9,//( 0'  1(:&$552/721 0'  0,7&+(//9,//( 0'  :$6+,1*721 '&  :$6+,1*721 ' &  )25(679,//( 0'  7(03/(+,//6 0'  $/(;$1'5,$ 9$  :$/'25) 0'  &$3,72/+(,*+76 0'  $/(;$1'5,$ 9$  %5<$1652$' 0'  %5$1'<:,1( 0'  &/,1721 0'  2;21+,// 0'  :$6+,1*721 '&  $/(;$1'5,$ 9$ 

&LYLO1RBBBBBBBBBB )5&LY3&ODVV $FWLRQ

 3DJHRI

Case 1:01-cv-02221-EGS Document 1 Filed 10/29/01 Page 5 of 45

,17+(81,7('67$7(6',675,&7&2857)25 7+(',675,&72)&2/80%,$

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 Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 1 of 28

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

SHARON BLACKMON-MALLOY, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civ. Action No. 01-2221

)

(EGS/JMF)

UNITED STATES CAPITOL POLICE

)

BOARD,

)

)

Defendant.

)

__________________________________________)

REPORT AND RECOMMENDATION This case was referred to me by Judge Sullivan for a Report and Recommendation on whether any class members are entitled to relief from his September 30, 2004 Memorandum Opinion and Order granting defendant=s motion to dismiss without prejudice to reconsideration of claims that conform to the timely counseling and mediation requirements of the Congressional Accountability Act (“CAA”). Briefing followed on Plaintiffs’ Motion for Reconsideration, which Judge Sullivan denied without prejudice in a minute order on August 4, 2005. He also referred the matter to me for this Report. A status conference was then held on March 16, 2006, to resolve various issues of organization and to establish a procedure and timeline for submission of evidence supporting the claims that individual Plaintiffs are entitled to relief under Judge Sullivan=s Order. Parties were instructed to work together to complete two charts provided by this Court, Chart A and Chart B, in facilitation of Judge Sullivan=s Minute Order of August 4, 2005, and detail, for each Plaintiff and each claim, the exact cause of action and pertinent information regarding their exhaustion of administrative remedies.

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The Court has received and reviewed the charts and now finds that the majority of the claims must be dismissed for failure to exhaust administrative remedies or failure to provide required support, while a small group of claims satisfies the requirements set forth in Judge Sullivan’s orders.
Also before me are Plaintiffs’ Motion for an Evidentiary Hearing [#134]; Plaintiffs’ Fourth Motion to Withdraw as Counsel [#135]; Defendant’s Motion to Strike [#139]; Defendant’s Motion to Temporarily Re-Instate Co-Counsel Agreement [#146]; and Plaintiffs’ Second Motion for an Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record [#148]. In a separate Order to accompany this Report and Recommendation, both motions for a hearing will be denied, as will the request to submit additional affidavits for the record; the motions to withdraw, to strike, and to re-instate the co-counsel agreement will be granted. I. BACKGROUND
Plaintiffs Sharon Blackmon-Malloy, Dale Veal, Vernier Riggs, Luther Peterson, Duvall Phelps, Larry Ikard, and Frank Adams filed a class complaint in this action, Civil Action 01-2221, under the CAA,1 on behalf of themselves and all current or retired African-American United States Capitol Police Officers, alleging that the United States Capitol Police Board (“USCP”) engaged in a pattern and practice of race discrimination against its African-American officers. Plaintiffs, all African American, seek compensatory damages and injunctive relief on behalf of all African-American officers of the United States Capitol Police force employed at any time between November 4, 1998,
1 As Judge Sullivan indicates in his Order of September 30, 2004, Plaintiffs’ Complaint was also filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Because these laws were not applicable to legislative branch employees prior to the CAA, the Court will construe these statutes as incorporated by the CAA. See 42 U.S.C. § 1301 et seq.
2

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and the present. Count I of the Joint Second Amended Complaint alleges disparate treatment
based on race (a) in personnel decisions, such as promotions, other selections, work assignments, discipline, and termination; (b) by creation of a hostile work environment; and (c) through harassment and retaliation against African-American officers who oppose discrimination. Count II alleges the USCP has maintained a system of promotions, other selections, work assignments, discipline, and termination that has had a disparate impact on African-American employees. Count III alleges that Plaintiffs Mary Jane Rhone, a civilian USCP employee, and Thomas Spavone, a Hispanic officer, have been subjected to a hostile work environment based on their known associations with African-American officers.
Consolidated with this action are the following cases: Blackmon-Malloy v. United States Capitol Police Board, Civil Action 02-1859; Fields v. United States Capitol Police Board, Civil Action 02-1346; Ross v. United States Capitol Police Board, Civil Action 02-2481; Fields v. United States Capitol Police Board, Civil Action 03-1505; Macon v. United States Capitol Police Board, Civil Action 03-1592; Bolden-Whitaker v. United States Capitol Police Board, Civil Action 03-2644; Young v. United States Capitol Police Board, Civil Action 04-320; Adams v. United States Capitol Police Board, Civil Action 04-943; Adams v. United States Capitol Police Board, Civil Action 05-491; and Adams v. United States Capitol Police Board, Civil Action 06-653. II. LEGAL STANDARD UNDER THE CAA
The CAA provides the exclusive procedure for current or former legislative branch employees to file suit alleging employment discrimination. See 42 U.S.C. §
3

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2000e-16(a).2 As described in Judge Sullivan’s Order, prior to filing suit, the CAA requires the exhaustion of certain administrative remedies, including (a) a request for counseling within 180 days of the alleged violation of law, pursuant to section 402; (b) attendance at a counseling session in person; (c) a request for mediation within 15 days of receiving notice of the end of the counseling period, pursuant to section 403; and (d) attendance at a mediation session in person. 2 U.S.C. §§ 1402, 1403(a). A district court has jurisdiction over any action commenced under the CAA only upon completion of counseling and mediation. 2 U.S.C. § 1408(a).
Unlike Title VII, the CAA specifically limits jurisdiction to cases where a plaintiff has timely exhausted administrative remedies. Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 97, 103 (D.D.C. 2004) (Sullivan, J.). Similarly, only when a plaintiff timely complies with the counseling and mediation requirements of the CAA does the United States, as sovereign, waive immunity and subject itself to suit. See id. Plaintiffs bear the burden of persuasion to establish subject matter jurisdiction in response to a Rule 12(b)(1) Motion to Dismiss. See Thompson v. Capitol Police Board, 120 F. Supp. 2d 78, 81 (D.D.C. 2000). Bare allegations of exhaustion are not enough to establish subject matter jurisdiction in the face of a challenge. Blackmon-Malloy, 338 F. Supp. 2d at 107.
In a class action, vicarious exhaustion of required administrative remedies is barred by the plain meaning of the CAA. Id. at 105. Section 1361(e) of the CAA states that “[o]nly a covered employee who has undertaken and completed the procedures described in sections 1402 [counseling] and 1403 [mediation] of this title may be granted a remedy under part A of this subchapter.” 2 U.S.C. § 1361(e). For a court to allow
2 All citations to the United States Code are to the electronic versions available in Westlaw and Lexis.
4

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 5 of 28
vicarious exhaustion would effectively render section 1361(e) of the CAA null and void by asserting jurisdiction over claims of individuals who failed to request or attend counseling and mediation. Blackmon-Malloy, 338 F. Supp. 2d at 105. Furthermore, nothing in the explicit language of the CAA “permits one person to fulfill the requirement of others.” Id. at 107. Attendance at counseling and mediation is required by the employee in person; “mediation is a process that requires, at the very least, meetings involving the parties and a neutral. It also requires an employee’s presence.” Id. at 109.3 III. JUDGE SULLIVAN’S ORDER
In his Order of September 30, 2004, dismissing Plaintiffs’ complaints without prejudice to reconsideration of those Plaintiffs’ claims that conform to counseling and mediation requirements, Judge Sullivan ordered Plaintiffs, when moving for reconsideration in the lead action, to “clearly state (and provide appropriate documentation for) the allegedly discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended.” Blackmon-Malloy, 338 F. Supp. 2d at 113. Furthermore, the Court indicated that it would not consider claims that do not appear in the Complaint. Id.
As to the above-mentioned consolidated cases, Judge Sullivan also ordered Plaintiffs in those actions to explain how the claims met the exhaustion requirements identified in his Order. Id. In doing so, each Plaintiff was to “detail the allegedly
3 In their Memorandum filed on June 2, 2006 [#135], Plaintiffs urge me to reconsider Judge Sullivan’s determination that vicarious exhaustion of administrative remedies through an attorney is inadequate to establish jurisdiction, and to “reconsider applying Foster v. Gueory [] for the proposition that the mediation requirement may be satisfied by one Plaintiff on behalf of all Plaintiffs.” Plaintiffs’ Memorandum of Law on Representation by Counsel in Mediation at 3 n.2. I have no authority to do so and will order the Memorandum stricken from the record.
5

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 6 of 28
discriminatory act, the date the act occurred, the date counseling was requested, the date the claimant attended counseling, the date mediation was requested, and the date a mediation session was attended.” Id. To facilitate compliance with Judge Sullivan’s Order, at the status conference of March 16, 2006, this Court provided sample charts, designated Chart A and Chart B, for parties to create a “side-by-side chart stating with clarity and precision for each plaintiff the exact cause of action that a plaintiff has, the precise factual and legal predicates for each claim, whether administrative proceedings were commenced and concluded for that plaintiff, and, if so, the detailed nature of those proceedings and defendant’s precise defenses to the plaintiff’s claims.” Minute Order, August 4, 2005.
In response to Judge Sullivan’s orders and following submission by Plaintiffs of charts detailing their claims, this Court painstakingly examined each claim by each Plaintiff to determine whether that Plaintiff satisfied the administrative requirements, according to the CAA, for that specific claim. The extensive amount of research the Court had to perform to verify the assertions made by counsel should not have been necessary. Implicit in Judge Sullivan’s Order was the presumption that the charts submitted by counsel were to be an accurate summary of what the pleadings contained. Unfortunately, in several instances, the representations in counsel’s charts were contradicted by Plaintiffs’ sworn declarations. Additionally, in several other instances, counsel’s charts made representations of facts as to which Plaintiffs’ declarations were silent. Thus, the charts were nothing more than a place to start. IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
As stated previously, to sustain a claim under the CAA, a plaintiff must show the
6

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 7 of 28
following: (1) a request for counseling within 180 days of the alleged violation; (2) attendance at counseling, in person; (3) request for mediation within 15 days of the close of counseling; and (4) attendance at mediation, in person.
According to the charts submitted by counsel, only fourteen Plaintiffs in these consolidated actions exhausted the administrative requirements for either all or some of their claims. Those claims are collected in Appendix A. The remaining claims for which counsel’s charts show a failure to exhaust administrative remedies are collected in Appendix B and are recommended for dismissal with prejudice.
Unfortunately the analysis cannot simply end here. The claims in Appendix A must be divided further because counsel’s representations in the charts submitted to the Court are at times inaccurate and unsupported by the accompanying documentation. Where a Plaintiff’s sworn statement does not confirm the assertions made by counsel, a separate appendix, Appendix C, lists those claims from Appendix A that should be dismissed without prejudice for failing to exhaust administrative remedies, at least until those Plaintiffs can supplement their declarations with that necessary support. Appendix D lists those claims from Appendix A that counsel identified as being exhausted and where exhaustion is supported by the corresponding Plaintiff’s declaration. In short, the only presently viable claims are those listed in Appendix D.
Note that the analysis that follows is based solely on information contained in the complaints, the charts submitted by counsel, and Plaintiffs’ declarations. The Court recognizes, however, that, in several instances, the government points to other evidence in support of its argument that Plaintiffs’ representations are not correct. Thus, there may be a factual dispute between the parties, the resolution of which may be left until after the
7

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 8 of 28
Court has determined which claims survive. Upon final determination of surviving claims, the Court can decide how to resolve the factual matters for purposes of jurisdiction, including whether the presentation of additional evidence or a hearing may be necessary.
I now address each Plaintiff from Appendix A who appears to satisfy the administrative requirements for at least one claim according to the charts submitted by counsel. 1. Frank Adams
Frank Adams has continuously served on the United States Capitol Police force since 1991 and is currently a Lieutenant assigned to the Senate Chamber section. Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Mot. for Recon.”), Ex. 75, Declaration of Plaintiff Frank Adams (“F. Adams Decl.”), at 1. He is a plaintiff in the lead case and a pro se plaintiff in three consolidated cases, Civil Actions 04-943, 05-491, and 06-653. Lieutenant Adams alleges, inter alia, discriminatory practices in the ranking procedures that affected his participation in the promotional examination process, undermining behavior by his white supervisors when attempting to discipline his subordinates, frivolous internal affairs investigations, retaliation, a hostile work environment, and reduced responsibilities due to this and other discriminatory behavior. See Joint Second Amended Class Action Compl. (“Second Amend. Compl.”) ¶ 28; Adams v. United States Capitol Police Bd., Civ. No. 04-943, Compl. ¶ 1; Adams v. United States Capitol Police Bd., Civ. No. 05-491, Compl. ¶ 1; Adams v. United States Capitol Police Bd., Civ. No. 06-653 Compl. ¶ 6. In total, he
8

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 9 of 28
alleges 574 incidents spanning the time period from November 30, 1994, to July 1, 2004. See Notice of Filing, Exhibit, “Chart B,” 6/20/2006, docket #141 (hereinafter “Johnson Chart B”), at 1-6, 8-10.
According to counsel’s chart, Lieutenant Adams exhausted the administrative requirements under the CAA for 33 of the alleged incidents, where he is represented by counsel for 17 of those claims, relating to incidents between November 2000 and March 2001 brought under the lead case (the “represented claims”), and where 16 are designated pro se, relating to incidents in 2003 and 2004 (the “pro se claims”). Those 33 claims are listed in Appendix A. The Court recommends dismissal of the other 24 claims for failure to exhaust administrative remedies and includes them in Appendix B.
Though the chart provided by counsel indicates that the administrative requirements for those claims listed in Appendix A were exhausted, nothing before the Court clearly verifies Lieutenant Adams’s personal participation in mediation other than the Plaintiffs’ Motion for Reconsideration, which asserts that Lieutenant Adams attended mediation in person. Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Mot. for Recon.”) at ¶ 13. Though Lieutenant Adams’s name does appear on the sign-in sheet for counseling attendance on April 28, 2001, see Mot. for Recon., Ex. 5, his sworn declaration is silent as to his personal attendance at counseling and mediation relating to the represented claims, see F. Adams Decl. at 1. Nonetheless, the Defendant concedes jurisdiction as to Lieutenant Adams’s claims for hostile work environment and adverse actions filed in the lead case. Memorandum in Opposition to Plaintiffs’ Motion for Reconsideration of the Court’s
4 Though counsel Gebhardt’s chart submitted to the Court also lists three incidents for Frank Adams, no additional information is provided as to those claims, and they appear to be duplicated in Johnson Chart B. Therefore the Court has disregarded the three claims included in Gebhardt’s chart.
9

Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 10 of 28
September 30, 2004 Memorandum Opinion and Order (“Opp.”) at 3, 49. The Court therefore recommends proceeding with those claims from the lead case and includes them in Appendix D.
In Civil Action 04-943, Lieutenant Adams asserts exhaustion of administrative remedies by including dates for the counseling and mediation periods. He fails, however, to confirm his personal attendance at either. Adams, Civ. No. 04-943, Compl. ¶ 4. The same is true with Lieutenant Adams’s other two pro se complaints. See Adams, Civ. No. 05-491, Compl. ¶ 4; Adams, Civ. No. 06-653, Compl. ¶ 4. Though counsel submits dates for administrative exhaustion of many of Lieutenant Adams’s pro se claims, Lieutenant Adams’s sworn statement and Plaintiffs’ Motion for Reconsideration are silent as to his actual compliance with the exhaustion requirements. Without supporting documentation, Lieutenant Adams presents only bare allegations of compliance with administrative requirements, which Judge Sullivan found inadequate for a claim to proceed. BlackmonMalloy, 338 F. Supp. 2d at 107. The Court therefore recommends dismissal of these claims without prejudice until such evidence is provided and includes them in Appendix C.5 2. Shafton Adams
Shafton Adams, a pro se plaintiff in the lead case, has served on the United States Capitol Police force in various capacities since July 16, 1984, and currently serves as a Special Agent assigned to the Security Services Bureau, Physical Security Division. Mot. for Recon., Ex. 12, Declaration of Plaintiff Shafton Adams (“S. Adams Decl.”) ¶ 2. He alleges a hostile work environment for events that took place between 1997 and 2000. S.
5 It is unclear to which complaint each pro se claim in counsel’s chart relates, and as such the Court can make no distinctions in its appendices.
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 11 of 28
Adams Decl. ¶ 4. According to counsel, Special Agent Adams has completed the administrative
requirements for his claim, and so it is included in Appendix A. See Plaintiffs’ Notice of Filing, Attachment 1, “Resorted Chart B,” 6/09/2006, docket #137 (hereinafter “Gebhardt Chart B”), at 1. His sworn declaration supports the claim of exhaustion made by counsel.6 S. Adams Decl. ¶¶ 7-8, 11. The Defendant argues that the Court lacks jurisdiction due to factual disputes regarding the timeliness of Special Agent Adams’s non-selection claim, the facts to which Special Agent Adams attests in his declaration, and his credibility. Opp. at 21-22. No dispute is raised regarding Special Agent Adams’s attendance at counseling and mediation. Indeed, the Defendant acknowledges Special Agent Adams complied with the counseling and mediation requirements. Opp. at 2. The factual disputes raised by the government are not dispositive of Special Agent Adams’s claims for the purposes of this Report and Recommendation because the only issue now before the Court is whether he has documented his claim of exhaustion.
None of the details regarding Special Agent Adams’s claim appear in the Complaint. His only presence in the Complaint is as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint.” Second Amend. Compl. ¶ 46. Furthermore, counsel failed to include Special Agent Adams in the chart ordered by this Court to provide details surrounding each plaintiff’s cause of action and linking each claim to a specific paragraph in the appropriate complaint. See Order, 3/31/2006, Exhibit A, “Chart A” (hereinafter “Court Chart A”); Response to Order of the
6 It should be noted, however, that counsel’s chart differs from the declaration of Special Agent Adams included with Plaintiff’s Motion for Reconsideration. According to Gebhardt Chart B, Special Agent Adams received his end of counseling notification on May 30, 2006. See Gebhardt Chart B at 1. In his declaration, Special Agent Adams states his counseling ended on May 16, 2006. Despite the discrepancy, either date satisfies the administrative requirements for present purposes.
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Court, 06/02/2006, Attachment 1, “Chart A.” (hereinafter “Counsel Chart A”).7 The details of his claim do appear in Plaintiffs’ Motion for Reconsideration and sworn statement. Mot. for Recon. ¶ 12; S. Adams Decl. ¶ 4. Therefore, with his apparent exhaustion of administrative remedies, the hostile work environment claim survives this stage and is included in Appendix D. 3. Sharon Blackmon-Malloy
Sharon Blackmon-Malloy has been on the United States Capitol Police force since October 12, 1982, and currently serves as a Sergeant assigned to the Training Division. Mot. for Recon., Ex.14, Declaration of Sharon Blackmon-Malloy (“BlackmonMalloy Decl.”), Attachment A, ¶ 2. She is a plaintiff in three suits, including the lead case and consolidated Civil Actions 02-1859 and 04-320. She alleges, inter alia, discriminatory non-promotion, a hostile work environment, disparate treatment, and retaliation. See Second Amend. Compl. ¶ 22; Blackmon-Malloy v. United States Capitol Police Bd., Civ. No. 02-1859, Compl. ¶ 1; Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶¶ 28, 36. The Defendant concedes jurisdiction as to the hostile work environment and non-promotion claims filed in the lead case. See Opp. at 24, 4950.
According to counsel, Sergeant Blackmon-Malloy exhausted administrative remedies for all four claims relating to the three different actions, which appear in Appendix A.8 See Gebhardt Chart B at 2.9 As Sergeant Blackmon-Malloy supports all of
7 Indeed, counsel failed to include many Plaintiffs in their supplements and corrections to Chart A. See Counsel Chart A. Moreover, counsel provided no additional information linking each Plaintiff’s claim to the appropriate paragraph of the complaint as ordered, resulting in the Court having to take substantial amount of time to perform the work asked of counsel. 8 Of the Plaintiffs to present exhausted administrative requirements as to Civil Action 04-320, Sergeant Blackmon-Malloy is the only one to unequivocally assert attendance at a counseling session on October 27, 2003. See Blackmon-Malloy Decl. ¶ 8(b).
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 13 of 28
the assertions made by counsel in her declaration, the Court recommends proceeding with all four of her claims. See Blackmon-Malloy Decl. ¶¶ 6, 7. Therefore, all of her claims are included in Appendix D. 4. Regina Bolden-Whitaker
Regina Bolden-Whitaker, a plaintiff in the lead case as well as in consolidated Civil Action 03-2644, has worked for the United States Capitol Police since August 21, 1985, and currently serves as a Private First Class in the Senate division. Mot. for Recon., Ex.15, Declaration of Regina Bolden-Whitaker (“Bolden-Whitaker Decl.”), Attachment A, ¶ 2. She alleges a total of four claims, including various forms of retaliation, nonselection, and a hostile work environment, relating to incidents in May 2001 and April 2003. Second Amend. Compl. ¶ 34; Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 17.
Officer Bolden-Whitaker satisfied administrative requirements for two claims of retaliation according to charts submitted by counsel, and therefore those two claims are listed in Appendix A. See Gebhardt Chart B at 2. In one incident that is part of Civil Action 01-2221, Officer Bolden-Whitaker alleges she was placed on restrictive duty for not wearing protective body armor despite a medical condition precluding her from wearing the body armor. Second Amend. Compl. ¶ 34. She confirms personally attending both counseling and mediation relating to this claim, which the Defendant does not dispute. See Bolden-Whitaker Decl. ¶ 8; Opp. at 27. The Defendant argues, however,
9 It is again worth noting counsel’s omissions in Gebhardt’s Chart B, where only one counseling date is listed though Sergeant Blackmon-Malloy asserts she attended at least three. Blackmon-Malloy Decl. ¶ 6(c). Also, the date provided by counsel for this plaintiff’s attendance at mediation, June 30, 2001, conflicts with her own account of attending mediation on June 22, 2001. See id. Again, the discrepancies are not a factor in resolution of the claims’ viability but the errors should be highlighted to urge counsel to avoid making any such inadvertent misrepresentations to the Court in the future.
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that the 2001 Complaint could not encompass this particular claim, for which mediation did not conclude until December 2001—after the Complaint was filed. Opp. at 27. Furthermore, the Defendant claims her participation in mediation was in bad faith. Id. at 27-28. Neither argument is a basis for dismissal at this stage, and the Court recommends proceeding with this claim and includes it in Appendix D.
In the other incident to which counsel attests completion of administrative requirements, involving Civil Action 03-2644, Officer Bolden-Whitaker alleges retaliatory disciplinary action. See Civ. No. 03-2644, Compl. ¶ 17; Gebhardt Chart B at 2. Though the language in Bolden-Whitaker’s declaration as to this incident differs slightly from her clear assertion of personal attendance at counseling and mediation regarding the previously mentioned retaliation claim, cf. Bolden-Whitaker Decl. ¶ 7 and ¶ 8, Plaintiffs’ Motion for Reconsideration clearly claims Officer Bolden-Whitaker attended counseling and mediation in person regarding her 2003 claim. Mot. for Reconsid. ¶ 20. Therefore, the Court recommends also proceeding with this claim and includes it in Appendix D.
The other two claims are recommended for dismissal for failure to exhaust administrative requirements. Though she complied with all other requirements, Officer Bolden-Whitaker did not personally attend mediation sessions for the events beginning in 2001 that resulted in hostile work environment and non-selection claims brought under Civil Action 01-2221 because she was recovering from surgery and on approved sick leave. See Bolden-Whitaker Decl. ¶ 6. Officer Bolden-Whitaker does not indicate a request to extend the mediation period to accommodate her recovery, nor any efforts to
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reschedule mediation for a time she could attend.10 She also acknowledges that she did not take the 2000 promotion exam. Bolden-Whitaker Decl., Attachment A, at 10. The Court therefore recommends the dismissal of these two claims and includes them in Appendix B.
5. Clinton Bradford Clinton Bradford, who has served on the United States Capitol Police force since June 1988, is currently serving as a Private First Class in the House Division. Mot. for Recon., Ex. 17, Declaration of Plaintiff Clinton O. Bradford (“Bradford Decl.”) ¶ 2. According to counsel, Officer Bradford, a pro se class member in Civil Action 01-2221, alleges two claims, one of discriminatory non-promotion and the other of a hostile work environment. See Gebhardt Chart B at 2-3. Counsel asserts that Officer Bradford satisfied administrative requirements for both claims, and thus both are included in Appendix A.11 Like Special Agent Adams, Officer Bradford’s only mention in the Complaint is as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint.” Second Amend. Compl. ¶ 46. Furthermore, counsel failed to include Clinton Bradford in the chart submitted to the Court for the purpose of detailing each plaintiff’s claim. See Counsel Chart A. The details of Officer Bradford’s claims do, however, appear in his declaration
10 It is worth noting that the recuperation period could not have been longer than two months, as Officer Bolden-Whitaker attended counseling regarding her inability to use body armor on September 26, 2001. See Bolden-Whitaker Decl. ¶ 8. 11 According to the supporting declaration, Officer Bradford attended counseling a second time on May 5, 2001, though Gebhardt Chart B omits this information. See Gebhardt Chart B at 2-3; Bradford Decl. ¶ 9. Also, Gebhardt Chart B does not fully comport with the declaration; Officer Bradford asserts the end of counseling notice issued on May 16, 2001, while the chart lists the date as May 30, 2001. Id. Again, these discrepancies, while noteworthy, do not affect the analysis of whether the plaintiff exhausted his administrative requirements.
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and Plaintiffs’ Motion for Reconsideration, thus confirming his completion of administrative requirements for his claims. Bradford Decl. at ¶¶ 8, 13; Mot. for Recon. ¶¶ 7, 13. The Defendant disputes the timeliness of Officer Bradford’s claim and his full participation in the 2000 promotion process. Opp. at 30-31. The Defendant does not dispute his attendance at counseling and mediation sessions, though it does argue the alleged violations were not the subject of Officer Bradford’s counseling request. Opp. at 32. These factual issues may require further consideration, but the fact that Officer Bradford has provided ample support for his exhaustion of administrative remedies mandates segregating Officer Bradford’s claims as viable and including them in Appendix D. 6. Arnold Fields
Arnold Fields is a Private First Class in the Senate Division of the United States Capitol Police and has served on the force since August 18, 1986. Mot. for Recon., Ex. 18, Declaration of Plaintiff Arnold Fields (“Fields Decl.”) ¶ 1. He is a plaintiff in four actions, the lead case as well as Civil Actions 02-1346, 03-1505, and 03-2644, bringing claims of hostile work environment, discriminatory disciplinary and evaluation procedures, and retaliation relating to multiple incidents spanning the time period of early 2001 to March 2003.12 Second Amend. Compl. ¶ 33; Fields v. United States Capitol Police Bd., Civ. No. 02-1346, Compl. ¶ 7; Fields v. United States Capitol Police Bd., Civ. No. 03-1505, Compl. ¶¶ 7-20; Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 18. Officer Fields failed to exhaust the administrative remedies for two claims from Civil Action 01-2221 involving the disciplinary action and a hostile
12 While not a named plaintiff, Officer Fields appears in the complaint in Civil Action 04-320, which discusses retaliation and assault on Officer Fields by a white sergeant. See Young v. United States Capitol Police, Civ. No. 04-320, Compl. ¶ 31.
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work environment in early 2001, as he did not personally attend mediation for those claims according to counsel. Gebhardt Chart B at 5. Those claims are recommended for dismissal in Appendix B.
Officer Fields appears to have satisfied administrative requirements for three other sets of claims for hostile work environment and retaliation—filed in Civil Actions 02-1346, 03-1505, and 03-2644—and those are included in Appendix A. Because in his declaration Officer Fields supports the data provided by counsel, see Fields Decl. ¶¶ 7-9, the Court recommends proceeding with those claims, listed in Appendix D. 7. Tammie Green
Tammie Green, a member of the United States Capitol Police force since 1998, currently serves as a Private First Class in the House Division. Mot. for Recon., Ex. 41, Declaration of Plaintiff Tammie D. Green (“Green Decl.”) ¶ 2. She is named as a plaintiff in the lead case and in Civil Action 04-320, though the only claim for which counsel now includes Officer Green as a plaintiff relates to the subject of the 2004 lawsuit, the sergeant’s 2003 promotion process.13 See Gebhardt Chart B at 7; Mot. for Recon. ¶ 24. The other two claims, apparently connected to the lead case, are recommended for dismissal for failure to exhaust administrative remedies and are included in Appendix B.
Officer Green’s claim for discrimination stems from non-promotion following the 2003 sergeant’s promotion exam. Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶ 27. The details of her particular claim are absent from the Complaint, though her claim is explained in Chart A and Plaintiffs’ Motion for Reconsideration. See
13 Note that the questionable status of Officer Green’s representation is now resolved with the Court’s order granting counsel’s motion to withdraw as to plaintiff Tammie Green.
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Court Chart A at 4; Mot. for Recon. ¶ 24. Counsel indicates Officer Green completed all of the administrative requirements as to the 03-420 claim. See Gebhardt Chart B at 7. However, Officer Green’s declaration is silent as to her personal attendance at counseling on October 9, 2003. See Green Decl. at ¶ 12. The absence of any declaration of counseling attendance is highlighted by Officer Green’s assertion of personally attending mediation on October 27, 2003. Id. Without supporting documentation of Officer Green’s personal attendance at counseling, the Court recommends dismissal of this claim without prejudice until such evidence is provided and includes it in Appendix C. 8. Ave Maria Harris
Ave Maria Harris, a Private First Class in the United States Capitol Police force, has served on the force since January 14, 1987. Mot. for Recon., Ex. 45, Declaration of Plaintiff Ave Maria Harris (“Harris Decl.”) ¶ 2. She is named as a plaintiff in the lead case and in Civil Action 03-2644. In the lead case, Officer Harris only appears as a class member with a “provable claim[] of discrimination with respect to matters alleged in this Complaint,” the details of which are omitted. See Second Amend. Compl. ¶ 46. According to counsel’s chart, any claim relating to incidents prior to 2003 must be dismissed for Officer Harris’s failure to attend mediation sessions. See Gebhardt Chart B at 7. As such, the earlier claim of Officer Harris is included in Appendix B.
In the remaining claim, Officer Harris alleges retaliation and a hostile work environment due to the Capitol Police’s investigation and discipline of her for failing to respond to an alarm while on her break. Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 19; Mot. for Recon. ¶¶ 20, 22. Officer Harris appears to have exhausted the required administrative remedies as to her claim filed in Civil Action
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03-2644, warranting inclusion in Appendix A. See Gebhardt Chart B at 7. According to counsel’s chart, Officer Harris personally attended counseling in
relation to the claim in Civil Action 03-2644 on July 1, 2003. Gebhardt Chart B at 7. However, nothing filed with the Court supports the assertion. Pleadings suggest that only Officer Bolden-Whitaker attended counseling and mediation in relation to the retaliation claim in Civil Action 03-2644. Mot. for Recon. ¶ 20. Officer Harris acknowledges in her declaration that her request for counseling was received on July 1, but she does not indicate attendance at any counseling session, only that her counseling request was “[r]eceived.” Harris Decl. ¶ 7. Additionally, Plaintiffs’ Motion for Reconsideration avers Officer Harris’s attendance at mediation, but not at counseling. Mot. for Recon. ¶ 22. Therefore, the Court recommends dismissal for this claim without prejudice until such time that Officer Harris provides evidence of her attendance at counseling and mediation, The claim is included in Appendix C. 9. Larry Ikard
Larry Ikard, a plaintiff in the lead case, has been continuously employed by the United States Capitol Police since April 20, 1982, and is now a Sergeant in the House Division First Relief with the Uniform Services Bureau. Mot. for Recon., Ex. 78, Declaration of Plaintiff Larry A. Ikard (“Ikard Decl.”) at 1. He alleges discrimination in the 1999 K-9 selection process and a hostile work environment. Second Amend. Compl. ¶ 27. In light of counsel’s representation that Officer Ikard did not personally attend counseling and mediation sessions in relation to these claims, the Court recommends their dismissal and includes those claims in Appendix B.
According to the chart submitted by counsel, Sergeant Ikard, acting pro se,
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exhausted administrative remedies pursuant to a 2003 non-promotion claim in Civil Action 04-320, and so the Court includes that claim in Appendix A. Johnson Chart B at 7; see also Mot. for Recon. ¶ 24. However, Sergeant Ikard is not named in Civil Action 04-320 and no documentation supports counsel’s submission of dates for Sergeant Ikard’s completion of administrative requirements for that claim. See Ikard Decl.; Mot. for Recon. ¶ 24. Therefore, the Court recommends dismissal of this claim and includes it in Appendix C. 10. Derrick Macon
Derrick Macon has been employed by the United States Capitol Police force since 1985 and now serves as an officer in the Senate Division. Mot. for Recon., Ex. 79, Declaration of Plaintiff Derrick Macon (“Macon Decl.”) ¶ 2. In the lead case, Officer Macon brings claims relating to discrimination in promotion and discipline, and to a hostile work environment. Second Amend. Compl. ¶ 43. He is also proceeding pro se as the plaintiff in Civil Action 03-1592, asserting age discrimination and retaliation for his lawsuit in the lead case. Macon v. United States Capitol Police Bd., Civ. No. 03-1592, Compl. ¶¶ 3-12. According to counsel’s chart, Officer Macon exhausted the administrative remedies for all of his claims, and therefore they are included in Appendix A. See Johnson Chart B at 7, 10.14
There are problems with each of Officer Macon’s claims, however. For the claims alleged in the lead case, arising out of events that counsel indicates occurred on November 30, 2000, counsel represents that Officer Macon attended counseling in person
14 Gebhardt Chart B also lists one of Officer Macon’s pro se claims, but provides no data as to completion of administrative requirements and erroneously captions the claim under unrelated case 02-CV-1592. Gebhardt Chart B at 11. The Court assumes this mistakenly duplicates data from the reference in Johnson Chart B at 7 and thus disregards it.
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on April 12, 2001, the same day counseling was requested. Johnson Chart B at 7. Counsel further asserts that “Officer Macon attended counsel (sic) on April 28, 2001.” Memorandum in Support of Plaintiffs’ Reply to Defendant’s Opposition to Plaintiffs’ Motion for Reconsideration of the Court’s September 30, 2004 Memorandum Opinion and Order (“Reply”) ¶ Y. But this is flatly contradicted by Officer Macon’s own declaration, in which he states that he “filed a request for counseling but did not attend because [he] was instructed that [he] did not have to personally attend a counseling session because several class members would be representing the entire class.” Macon Decl. ¶ 8; see also Opp. at 11. Therefore, the Court recommends dismissal of this claim for failure to exhaust administrative remedies and includes it in Appendix B.
As to the retaliation and age discrimination alleged in Civil Action 03-1592, counsel indicates Officer Macon completed administrative requirements for his pro se claims. See Johnson Chart B at 10. However, nothing in the pleadings or Officer Macon’s declaration supports the information in counsel’s chart. See Civ. No. 03-1595, Compl. ¶ 15; Reply ¶ Y. The absence of any documentation leaves only bare assertions of exhaustion, and accordingly the Court recommends dismissal of these claims without prejudice until evidentiary support is provided. These claims are included in Appendix C. 11. Brent Mills
Brent Mills has served on the United States Capitol Police force since October 3, 1990, and he has been a Private First Class since 1993, currently assigned to Senate Division 2. Mot. for Recon., Ex. 80, Declaration of Plaintiff Brent Allan Mills (“Mills Decl.”) ¶ 2. Officer Mills is a plaintiff in the lead case as well as a pro se plaintiff in
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Civil Action 04-320. In the lead case, Officer Mills alleges discrimination in being denied a promotion.
Second Amend. Comp. ¶ 41. The declaration of Officer Mills that should inform the Court of his exhaustion of administrative remedies, however, is actually an incomplete draft, containing numerous errors and instructions on how to complete the declaration rather than the actual needed information. See Mills Decl. ¶¶ 5-6, 9-12. For example, the declaration is blank where Officer Mills was apparently to insert the dates indicating when he participated in counseling. Mills Decl. ¶ 9 (“I participated in counseling with the Office of Compliance on the following date(s) [blank]”). Moreover, the declaration claims Officer Mills initiated counseling for his claims relating to the lead case on April 12, 2001, Mills Decl. ¶ 8, while he impossibly attended mediation and received his endof-mediation notice for this claim prior to counseling in the year 2000, Mills Decl. ¶¶ 1213. This is further contradicted by counsel’s chart, which indicates Officer Mills attended counseling but did not attend mediation in person. Johnson Chart B at 7. With all of the discrepancies and gaps relating to Officer Mills’s claim in the lead case, the Court recommends dismissing this claim for failure to exhaust administrative requirements, and notes the claim in Appendix B.
Officer Mills proceeds pro se as to one claim relating to the 2003 promotion process. See Young v. United States Capitol Police Bd., Civ. No. 04-320, Compl. ¶¶ 19, 27. Counsel provides dates demonstrating exhaustion of administrative requirements for that claim, and so it appears in Appendix A. Johnson Chart B at 10.15 The supporting
15 The data for exhaustion of Officer Mills’s pro se claim relating to the 2003 sergeant’s promotion process appears in both Gebhardt’s chart and Johnson’s chart. Gebhardt’s chart, however, fails to indicate any attendance at counseling. See Gebhardt Chart B at 12. Apparently a duplication, the Court disregards the inclusion of this claim in Gebhardt Chart B.
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documentation, however, is silent as to the dates provided in counsel’s chart. See Mills Decl.; Mot. for Recon. ¶ 24. Therefore, the Court recommends dismissal of this claim without prejudice, until such time that Officer Mills can provide evidentiary support of exhaustion. The Court includes this claim in Appendix C. 12. Duvall Phelps
Duvall Phelps was a Private First Class in the House Division in the United States Capitol Police force for 25 years, from October 6, 1975, until October 31, 2000. Mot. for Recon., Ex. 25, Declaration of Plaintiff Duvall W. Phelps (“Phelps Decl.”) ¶ 3. Officer Phelps is a named plaintiff in the lead case and in Civil Action 03-2644. In the lead case, he alleges his departure from the force was the result of a constructive discharge. Second Amend. Compl. ¶ 26. As a result of that action, Officer Phelps claims retaliation and a hostile work environment when he was denied building access and his credentials were taken. Bolden-Whitaker v. United States Capitol Police Bd., Civ. No. 03-2644, Compl. ¶ 20.
According to counsel, Officer Phelps satisfied the administrative requirements for all of his claims, which are included in Appendix A. See Gebhardt Chart B at 14. Officer Phelps confirms exhaustion of administrative requirements in his declaration. Phelps Decl. ¶¶ 8-9. Though the Defendant argues that the date of the cause of action accrued at the time Officer Phelps agreed to the early retirement, not the date when the early retirement became effective, and that his attendance at mediation did not involve his own claims, Opp. at 39-40, for present purposes the Court recommends all of Officer Phelps’s claims proceed at this stage and includes them in Appendix D.
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13. Vernier Riggs Currently a Lieutenant in the United States Capitol Police force assigned to the
House Division, Vernier Riggs has been with the force since August 21, 1985. Mot. for Recon., Ex. 26, Declaration of Plaintiff Vernier Riggs (“Riggs Decl.”) ¶ 2. She is a plaintiff in the lead case, alleging, inter alia, retaliation, discriminatory evaluation, and the denial of a promotion. Second Amend. Compl. ¶ 24. She also appears in Civil Action 04-320, though she is not named as a plaintiff, for being singled out at roll call for wearing a white short-sleeve shirt. Young v. United States Capitol Police Bd., Civ. No. 04-320 Compl. ¶ 29. According to counsel’s chart, Lieutenant Riggs now brings claims only of retaliation and a hostile work environment, for which she completed all administrative requirements. Gebhardt Chart B at 15. These claims are included in Appendix A.
The Defendant disputes the officer’s personal attendance at mediation relating to the substance of her claims. Gebhardt Chart B at 15; Opp. at 13-14. According to counsel’s chart, Lieutenant Riggs attended mediation on June 30, 2001. Id. Lieutenant Riggs asserts, however, she attended a mediation session on June 22, 2001.16 Riggs Decl. ¶ 13. As either date would satisfy administrative remedies, and the factual dispute may require additional analysis, the Court recommends the claims proceed and includes them in Appendix D. 14. Richard Webb
Finally, Richard Webb is a Private First Class on the United States Capitol Police force assigned to the “Patrol Mobile Responds” (sic) unit. Mot. for Recon., Ex. 83,
16 In another notable error, counsel indicates Lieutenant Riggs attended one of her many counseling sessions on April 12, 2001. Gebhardt Chart B at 15. In her declaration, Lieutenant Riggs claims her first counseling session was not until April 28, 2001. Riggs Decl. ¶ 10.
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Declaration of Plaintiff Richard R. Webb (“Webb Decl.”) ¶ 2. He has served on the force since January 31, 1989. Id. As a plaintiff in the lead case, he alleges discrimination in the K-9 selection process and a hostile work environment, though the details of those claims are absent from the Complaint. Johnson Chart B at 7; see also Webb Decl.; Second Amend. Compl. ¶ 46. As counsel confirms that Officer Webb did not appear personally at any mediation sessions related to those claims, the Court recommends their dismissal for failure to exhaust administrative remedies and includes those claims in Appendix B. See Johnson Chart B at 7; Webb Decl. ¶ 13.
Officer Webb is also a named plaintiff in Civil Action 04-320, in which he alleges discriminatory non-promotion. Young v. United States Capitol Police Bd., Civ. No. 04320, Compl. ¶¶ 5, 27. That claim is included in Appendix A since Officer Webb apparently satisfied the administrative requirements for it. See Johnson Chart B at 11.17 However, no evidence exists in any of the pleadings to support the data provided by counsel. Therefore, the Court recommends dismissal of this claim without prejudice until such time as adequate evidence is presented. It is included in Appendix C. V. SUMMARY OF CLAIMS
As a result of the Court’s analysis of the multiple pleadings and resolution of discrepancies and errors of counsel, eight Plaintiffs currently present claims to the Court that satisfy the administrative requirements set forth by Judge Sullivan: Frank Adams, Shafton Adams, Sharon Blackmon-Malloy, Regina Bolden-Whitaker, Clinton Bradford, Arnold Fields, Duvall Phelps, and Vernier Riggs. Additional claims of Plaintiffs Frank
17 As with the pro se claim of Officer Mills, the data for exhaustion of Officer Webb’s pro se claim relating to the 2003 sergeant’s promotion process appears in both Gebhardt’s chart and Johnson’s chart. Gebhardt’s chart, however, fails to indicate any attendance at counseling. See Gebhardt Chart B at 19. Apparently a duplication, the Court disregards the inclusion of this claim in Gebhardt Chart B.
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Adams, as well as claims of Tammie Green, Ave Maria Harris, Larry Ikard, Derrick Macon, Brent Mills, and Richard Webb may be viable following supplementation to their declarations to attest to their exhaustion of administrative remedies. The factual disputes specific to certain claims, including those of Shafton Adams, Regina Bolden-Whitaker, Clinton Bradford, Duvall Phelps, and Vernier Riggs, will require additional consideration once the appropriate claims from Appendices C and D are consolidated into one amended complaint. All other claims, for these and all other Plaintiffs, must be dismissed for failure to exhaust administrative remedies under the CAA. VI. OTHER OUTSTANDING MOTIONS
Also before the Court are several other requests, each of which may be succinctly addressed here and will be ruled on in a separate Order.
In light of this Court’s Report and Recommendation, Plaintiffs’ Motion for an Evidentiary Hearing and Plaintiffs’ Second Motion for an Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record will be denied. Plaintiffs already submitted affidavits with their Motion for Reconsideration; furthermore, any additional pleadings on the matter would violate Judge Sullivan’s Minute Order of June 14, 2005.
The Fourth Motion to Withdraw as Counsel, filed by attorney Joseph D. Gebhardt and the firm of Gebhardt & Associates, LLP, will be granted; counsel may withdraw representation as to Plaintiffs Clinton Bradford, Robert Braswell, Tammie Green, and Dale Veal. The Motion to Temporarily Re-Instate Co-Counsel Agreement, filed by attorney Nathaniel D. Johnson, will also be granted.
Defendant’s Motion to Strike the Memorandum filed by Plaintiffs will also be granted. Plaintiffs’ Memorandum, which, in essence, requests yet another
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reconsideration of Judge Sullivan’s Order on Defendant’s Motion to Dismiss, violates Judge Sullivan’s Minute Order that no additional pleadings be filed in this matter. See Minute Order, June 14, 2005. Furthermore, the Memorandum improperly requests relief this Court is without authority to provide. Defendant’s Motion will be granted and the Memorandum will be ordered stricken. VII. CONCLUSION
After closely analyzing the many filings by Plaintiffs in these consolidated cases, correcting multiple errors by counsel, and filling in other necessary gaps to determine which claims, if any, remain viable, the Court recommends:
DISIMISSING WITH PREJUDICE all claims included in Appendix B for Plaintiffs’ failure to exhaust administrative remedies;
DISMISSING WITHOUT PREJUDICE all claims included in Appendix C. Although Plaintiffs appear to have exhausted the administrative remedies for these claims, they have failed to provide the Court with the appropriate supporting documentation or other evidence. Counsel should be granted leave to supplement the declarations of those Plaintiffs in Appendix C; and
UPHOLDING all claims included in Appendix D for Plaintiffs’ having exhausted the administrative requirements and for providing supporting evidence thereof.
The Court will separately order counsel to submit supporting affidavits to establish the exhaustion of administrative requirements as to claims ONLY included in Appendix C within fourteen days of the date of this Report and Recommendation, or April 2, 2007. Following counsel’s submission, the Court will make a final recommendation as to which claims from Appendix C should be included in an amended
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Case 1:01-cv-02221-EGS Document 151 Filed 03/19/07 Page 28 of 28 complaint with those claims included in Appendix D. Upon the filing of an amended complaint, the Court may better determine how to appropriately address the factual disputes presented for specific claims.
Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn, 474 U.S. 140 (1985).
_____/s/_____________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE Dated: March 19, 2007
28

 
 Create an Alert for This Case on RECAP

APPEAL,CONSOL,JURY,TYPE-H

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:01-cv-02221-EGS

BLACKMON-MALLOY et al v. UNITED STATES CAPITOL POLICE BOARD Assigned to: Judge Emmet G. Sullivan Demand: $100,000,000
Cases: 1:07-cv-00936-EGS

Date Filed: 10/29/2001 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

1:08-cv-00003-EGS

1:12-cv-01512-BAH

Case in other court: 07-05320

07-05321

07-05322

Cause: 42:2000e Job Discrimination (Employment)

Plaintiff

SHARON BLACKMON-MALLOY

represented by SHARON BLACKMON-MALLOY (202) 306-2242 Email: francsharon@aol.com PRO SE

James Quincy Butler BUTLER LEGAL GROUP, PLLP 818 18th Street, NW 6th Floor Washington, DC 20006 (202) 223-6767 Fax: (202) 223-3039 Email: jqbutler1@hotmail.com TERMINATED: 03/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathaniel D. Johnson THE JOHNSON LAW OFFICE 10665 Stanhaven Place Suite 3101 White Plains, MD 20695 (301) 645-9103 Fax: (888) 492-9434 Email: ndjesquire@gmail.com TERMINATED: 07/26/2018 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II LAW FIRM OF NATHANIEL D. JOHNSON P.O. Box 1857 201 Centennial Street A-2 Laplata, MD 20646 (301) 645-9103 Fax: (240) 363-0747 Email: rlt2esquire@aol.com TERMINATED: 03/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. THE DAY LAW PRACTICE LLC 103 North Adams Street Suite 203 Rockville, MD 20850 (301) 762-2675 Fax: (844) 554-5506 Email: billday@daylawpractice.com TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Charles Jerome Ware CHARLES JEROME WARE, P.A. 10630 Little Patuxent Parkway Suite 113 Columbia, MD 21044 (410) 730-5016 Fax: (410) 730-7603 Email: charlesjeromeware@msn.com TERMINATED: 02/05/2002
Donna Williams Rucker TULLY RINCKEY PLLC 815 Connecticut Avenue, NW Suite 720 Washington, DC 20006 (202) 787-1900 Fax: (202) 640-2059 Email: DRucker@fedattorney.com TERMINATED: 12/07/2011
Joseph D. Gebhardt The Law Offices of Gary M. Gilbert &

Plaintiff
DAMON ADAMS TERMINATED: 02/25/2008

Associates, P.C. 1100 Wayne Avenue Suite 900 Silver Spring, MD 20910 (301) 608-0880 Fax: (301) 608-0881 Email: jgebhardt@ggilbertlaw.com TERMINATED: 06/12/2008
Lenore Cooper Garon LAW OFFICE OF LENORE C. GARON. PLLC 2412 Falls Place Court Falls Church, VA 22043 (703) 534-6662 Fax: (703) 534-4448 Email: lenore@lenorecgaron.com TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Valencia R. Rainey THE FORD LAW FIRM 506 9th Street, NW Washington, DC 20004 (301) 928-4939 Email: vrrainey@gmail.com TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker

Plaintiff FRANK ADAMS

(See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by FRANK ADAMS 5817 South Marwood Boulevard Upper Marlboro, MD 20772 (301) 599-6882 Email: frankyj20772@gmail.com PRO SE
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Nathaniel D. Johnson (See above for address) TERMINATED: 02/24/2017
Valencia R. Rainey

Plaintiff SHAFTON ADAMS
Plaintiff CHARLES AKINS TERMINATED: 02/25/2008

(See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY

Plaintiff
TWANDA ALEXANDER-WISE TERMINATED: 02/25/2008

ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011

Plaintiff
EARL ALLEN TERMINATED: 02/25/2008

Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017

Plaintiff BUTLER ALPHONSO TERMINATED: 02/25/2008
Plaintiff VERNON ALSTON, JR. TERMINATED: 02/25/2008

represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
MARSHA ANDERSON TERMINATED: 02/25/2008

Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt

Plaintiff ROY ANDERSON TERMINATED: 02/25/2008
Plaintiff SHERRY BAILEY

(See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson

TERMINATED: 02/25/2008
Plaintiff KENNETH BALDWIN TERMINATED: 02/25/2008

(See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
DARYL BANKS TERMINATED: 02/25/2008

Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008

Plaintiff TRENTON BASS TERMINATED: 02/25/2008
Plaintiff LARRY BENNETT TERMINATED: 02/25/2008

Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY

Plaintiff
CLARENCE BLACK TERMINATED: 02/25/2008

ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address)

Plaintiff
LEWIN BLACKSTON TERMINATED: 02/25/2008

TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SHIRLEY BLAND TERMINATED: 02/25/2008
Plaintiff DARRIN BLOXON TERMINATED: 02/25/2008

Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II

Plaintiff
ERIC BOGGS TERMINATED: 02/25/2008

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker

Plaintiff REGINA BOLDEN-WHITAKER

(See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by REGINA BOLDEN-WHITAKER 5812 Jackies Way Clinton, MD 20735 (301) 856-7825 PRO SE
James Quincy Butler (See above for address) TERMINATED: 03/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) TERMINATED: 03/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002

Plaintiff
HELEN BOND-JONES TERMINATED: 02/25/2008

Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff GAYLE BOONE TERMINATED: 02/25/2008
Plaintiff WILBERT BOOTH, JR. TERMINATED: 02/25/2008

Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address)

Plaintiff
AMANDO BOWMAN TERMINATED: 02/25/2008

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address)

Plaintiff
TERESA BRADBY TERMINATED: 02/25/2008

TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017

Plaintiff CLINTON BRADFORD TERMINATED: 02/25/2008
Plaintiff GRADY BRADFORD, SR. TERMINATED: 02/25/2008

represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
SYLVIA BRADLEY TERMINATED: 02/25/2008

Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt

Plaintiff ROBERTS BRASWELL, JR. TERMINATED: 02/25/2008
Plaintiff TYRONE BROOKS

(See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson

Plaintiff
LORETTA BULLOCK TERMINATED: 02/25/2008

(See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
SAPHONIA BUTLER TERMINATED: 02/25/2008

Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008

Plaintiff KAYLANA BYRD TERMINATED: 02/25/2008
Plaintiff JOHN WILLIE CALDWELL, JR. TERMINATED: 02/25/2008

Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY

Plaintiff
STEPHEN CANNADY TERMINATED: 02/25/2008

ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address)

Plaintiff
BRYAN CARTER TERMINATED: 02/25/2008

TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JOE CHRISTIAN TERMINATED: 02/25/2008
Plaintiff PERNELL CLARK TERMINATED: 02/25/2008

Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II

Plaintiff
KAREN CLAY TERMINATED: 02/25/2008

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker

Plaintiff
WILLIAM CLEVELAND TERMINATED: 02/25/2008

(See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address)

Plaintiff LUATHUR COCHRAN TERMINATED: 02/25/2008
Plaintiff CHARLES COFFER, JR. TERMINATED: 02/25/2008

TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
REGINALD COLLINS TERMINATED: 02/25/2008

Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011

Plaintiff MICHAEL COVINGTON TERMINATED: 02/25/2008
Plaintiff

Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017

DORIAN COWARD TERMINATED: 02/25/2008
Plaintiff J. CREEKMAR TERMINATED: 02/25/2008

represented by Nathaniel D. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MONTE CURTIS TERMINATED: 02/25/2008

Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008

Plaintiff RONALD CURTIS TERMINATED: 02/25/2008
Plaintiff ALL PLAINTIFFS TERMINATED: 02/25/2008

Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lloyd Thompson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Elaine Lynette Fitch KALIJARVI, CHUZI, NEWMAN & FITCH, P.C. 818 Connecticut Avenue, NW

Suite 1000 Washington, DC 20006 (202) 331-9260 Fax: (866) 452-5789 Email: efitch@kcnlaw.com TERMINATED: 08/22/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jenny Celestin GEBHARDT & ASSOCIATES 1101 17th Street NW Suite 607 Washington, DC 20036 (202) 496-0400 TERMINATED: 08/22/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan C. Lee GEBHARDT & ASSOCIATES LLP 1101 17th Street NW Washington, DC 20036 (202) 496-0400 TERMINATED: 03/26/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles Jerome Ware (See above for address) TERMINATED: 02/05/2002
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address)

Plaintiff DERRICK W. MACON
Plaintiff ARNOLD FIELDS

TERMINATED: 06/12/2008
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
Richard Lloyd Thompson , II (See above for address) TERMINATED: 12/06/2009 ATTORNEY TO BE NOTICED
represented by DERRICK W. MACON 12401 Weldon Manor Lane Upper Marlboro, MD 20772 (202) 369-4433 Email: ddddmacon@yahoo.com PRO SE
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Joseph D. Gebhardt (See above for address) TERMINATED: 06/12/2008
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by ARNOLD FIELDS 306 Jennings Mill Drive Bowie, MD 20721-7216 (301) 249-1854 PRO SE
Algernon Marques Pitre

Plaintiff DUVALL PHELPS

PITRE & ASSOCIATES, LLC 1300 Pennsylvania Avenue, NW Suite 700 Washington, DC 20004 (202) 204-3006 Email: ampitre@ampitreassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Quincy Butler (See above for address) TERMINATED: 03/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Lenore Cooper Garon (See above for address) TERMINATED: 03/01/2019 ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
VERNIER RIGGS TERMINATED: 07/30/2019

Daniel K. Gebhardt SOLOMON LAW FIRM, PLLC 1025 Connecticut Avenue, N.W., Suite 1000 WASHINGTON Washington, DC 20036 866-833-3529 Email: dgebhardt@fedemploylaw.com TERMINATED: 08/03/2018
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by James Quincy Butler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Donna Williams Rucker (See above for address) TERMINATED: 12/07/2011
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address)

Plaintiff REGINA IKARD Personal Representative of the Estate of Larry Ikard
Plaintiff MARIAN R. DICKSON Personal Representative of the Estate of Jerry Dickson Plaintiff AVE MARIE HARRIS
Plaintiff LUTHER S. PETERSON, JR.

TERMINATED: 02/17/2017
represented by REGINA IKARD 4629 Eastern Avenue Mount Rainer, MD 20712 PRO SE
James Quincy Butler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Williamson Day , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lenore Cooper Garon (See above for address) ATTORNEY TO BE NOTICED
Valencia R. Rainey (See above for address) TERMINATED: 02/17/2017
represented by Nathaniel D. Johnson (See above for address) TERMINATED: 07/26/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AVE MARIE HARRIS 5404 Stratford Lane Temple Hills, MD 20748 (301) 509-0465 PRO SE
represented by LUTHER S. PETERSON, JR. 1359 E Street, SE Washington, DC 20003

Plaintiff DALE VEAL
Plaintiff DANNY L. MCELROY
Plaintiff JOHN N. JOHNSON TERMINATED: 07/30/2019 Plaintiff LEONARD ROSS
Plaintiff GOVERNOR LATSON, JR.
Plaintiff TAMMIE D. GREEN
Plaintiff RICHARD WEBB

(202) 546-4167 PRO SE
represented by DALE VEAL 14601 Dervish Court Bowie, MD 20721 (301) 910-4768 Email: veal1@comcast.net PRO SE
Algernon Marques Pitre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DANNY L. MCELROY 7102 Meadow Rue Terrace Upper Marlboro, MD 20772 (703) 869-0271 PRO SE
represented by LEONARD ROSS 9379 Principal Lane Waldorf, MD 20603 PRO SE
represented by GOVERNOR LATSON, JR. 10110 Kathleen Drive Fort Washington, MD 20744 PRO SE
represented by TAMMIE D. GREEN 30 Regency Drive Stafford, VA 22554 PRO SE
represented by RICHARD WEBB 10752 Green Mountain Circle Columbia, MD 21044 PRO SE

Plaintiff KEVIN MATTHEWS, SR.
Plaintiff SANDRA BROWN-JAMES
Plaintiff REGINALD W. WATERS
Plaintiff FRANK W. WILKES
Plaintiff KENDRICK A. YOUNG
Plaintiff BRENT MILLS
V. Defendant UNITED STATES CAPITOL POLICE BOARD

represented by KEVIN MATTHEWS, SR. 2507 32nd Street, SE Washington, DC 20020 (202) 553-7484 PRO SE
represented by SANDRA BROWN-JAMES 3815 Butler Springs Drive Loganville, GA 30052 PRO SE
represented by REGINALD W. WATERS 11409 Croom Road Upper Marlboroa, MD 20772 PRO SE
Algernon Marques Pitre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by FRANK W. WILKES 8907 Hardesty Drive Clinton, MD 20735 PRO SE
represented by KENDRICK A. YOUNG 10114 Georgian Lane Upper Marboro, MD 20772 PRO SE
represented by BRENT MILLS 1087 Sugar Maple Terrace Upper Marlboro, MD 20774 PRO SE
represented by Thomas Duffey U.S. ATTORNEY'S OFFICE 555 4th Street, NW Washington, DC 20530

(202) 252-2510 Email: thomas.duffey@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Burch DOJ-USAO Eousa 3 Constitution Square 175 N Street, NE Washington, DC 20002 202-252-5875 Email: alan.burch@usdoj.gov TERMINATED: 10/21/2020
Andrea McBarnette U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2539 Fax: (202) 514-8780 Email: andrea.mcbarnette@usdoj.gov TERMINATED: 02/27/2008
Audrey Elizabeth Lambert U.S. DEPARTMENT OF JUSTICE Federal Prison Industries 400 1st St. NW 8th Floor Washington, DC 20534 (202) 514-0797 Email: audrey.lambert@usdoj.gov TERMINATED: 12/15/2010
Benjamin George Birkhill UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF COLUMBIA Civil Division 555 4th Street, NW Washington, DC 20530 (202) 514-7139 Email: benjamin.birkhill@usdoj.gov TERMINATED: 09/25/2019
Christopher Charles Hair U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA

555 Fourth Street, NW Washington, DC 20530 (202) 252-2541 Fax: (202) 252-2599 Email: christopher.hair@usdoj.gov TERMINATED: 12/20/2020
Harry B. Roback SECURITIES AND EXCHANGE COMMISSION 950 East Paces Ferry Suite 900 Atlanta, GA 30326 404-942-0690 Email: harry.roback@usdoj.gov TERMINATED: 02/03/2012
Jeremy S. Simon U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2528 Fax: (202) 252-2599 Email: jeremy.simon@usdoj.gov TERMINATED: 09/25/2019
Kelly M. Scindian U.S. CAPITOL POLICE 119 D Street, N.E. Washington, DC 20510 (202) 593-3651 Email: kelly.scindian@uscp.gov ATTORNEY TO BE NOTICED
Laurie J. Weinstein U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2527 Fax: (202) 514-8780 Email: Laurie.Weinstein2@usdoj.gov TERMINATED: 09/25/2019
Rafique O. Anderson UNITED STATES CAPITOL POLICE Office of Employment Counsel

V. Interested Party OFFICE OF COMPLIANCE

119 D Street, NE Washington, DC 20510 (202) 593-3654 Email: rafique.anderson@usdoj.gov TERMINATED: 12/30/2019
Robin M. Earnest EARNEST ATTORNEY AT LAW, LLC Post Office Box 102 Riverdale, MD 20738 240-463-4625 Email: rearnestlaw@gmail.com TERMINATED: 10/12/2004
Wynne Patrick Kelly U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2545 Fax: (202) 252-2599 Email: wynne.p.kelly@usdoj.gov TERMINATED: 09/25/2019
represented by Peter Ames Eveleth CONGRESSIONAL OFFICE OF COMPLIANCE 110 Second Street, SE Room LA-200 Washington, DC 20540-1999 (202) 724-9249 Email: peter.eveleth@compliance.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John D. Uelmen OFFICE OF COMPLIANCE John Adams Building 110 Second Street, SE Room LA 200 Washington, DC 20540 (202) 724-9247 Fax: (202) 426-1663 Email: juel@loc.gov ATTORNEY TO BE NOTICED

Date Filed 10/29/2001 10/29/2001 11/02/2001 01/22/2002 01/22/2002
01/22/2002 01/23/2002 02/05/2002 02/06/2002 02/26/2002
02/27/2002 02/27/2002
03/01/2002 03/01/2002 03/12/2002 03/28/2002 05/24/2002
06/04/2002

# Docket Text
1 COMPLAINT against UNITED STATES CAPITOL POLICE BOARD ( Filing fee $150 ). Filed by ALL PLAINTIFFS. (ag, ) (Entered: 11/01/2001)
SUMMONS (3) Issued as to UNITED STATES CAPITOL POLICE BOARD , U.S. Attorney and U.S. Attorney General (ag, ) (Entered: 11/01/2001)
2 Case Reassigned to Judge Emmet G. Sullivan. Judge James Robertson no longer assigned to the case. (td, ) (Entered: 11/06/2001)
3 ATTORNEY APPEARANCE. (Fitch, Elaine) (Entered: 01/22/2002)
4 Consent MOTION for Extension of Time to File Motion for Class Certification and First Amended Complaint by ALL PLAINTIFFS. (Attachments: # 1 Supplement to Plaintiffs' Motion for Extension of Time# 2 Proposed Order)(Fitch, Elaine) (Entered: 01/22/2002)
5 NOTICE re 4 Certificate of Service by ALL PLAINTIFFS (Fitch, Elaine) (Entered: 01/22/2002)
6 ORDER granting Motion for Extension of Time to File 4 . Signed by Judge Emmet G. Sullivan on January 23, 2002. (lcegs1) (Entered: 01/23/2002)
7 NOTICE of Withdrawal as Counsel for Charles J. Ware by ALL PLAINTIFFS (Attachments: # 1 Exhibit A)(nmr, ) (Entered: 02/06/2002)
8 (ENTERED IN ERROR) NOTICE of Certificate of Service by all plaintiffs (Fitch, Elaine) Modified on 2/8/2002 (td, ). (Entered: 02/06/2002)
SUMMONS (3) REISSUED as to UNITED STATES CAPITOL POLICE BOARD , and non-parties U.S. Attorney and U.S. Attorney General (td, ) (Entered: 02/26/2002)
9 AMENDED COMPLAINT. Filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Certificate of Service)(Fitch, Elaine) (Entered: 02/27/2002)
10 First MOTION to Certify Class by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Gebhardt & Assoc. Firm Resume 1# 2 Exhibit Gebhardt & Assoc. Resume Pt. 2) (Fitch, Elaine) (Entered: 02/27/2002)
12 AMENDED COMPLAINT. Filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit)(td, ) (Entered: 04/16/2002)
14 ATTORNEY APPEARANCE. (td, ) (Entered: 04/16/2002)
13 AMENDED COMPLAINT (SECOND AMEMDED CLASS ACTION). Filed by ALL PLAINTIFFS. (td, ) (Entered: 04/16/2002)
11 ATTORNEY APPEARANCE. (Weinstein, Laurie) (Entered: 03/28/2002)
15 Consent MOTION for Extension of Time to File Answer re 1 , 9 , 12 , 13 by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1)(Weinstein, Laurie) (Entered: 05/24/2002)
16 NOTICE of Related Case by UNITED STATES CAPITOL POLICE BOARD (Weinstein, Laurie) (Entered: 06/04/2002)

06/05/2002 06/27/2002 06/28/2002 07/02/2002 07/10/2002 07/10/2002 07/12/2002 07/15/2002
07/17/2002

ORDER granting Consent Motion for Extension of Time to File Answer and respond to Motion for Class Certification 15 to June 28, 2002. Signed by Judge Emmet G. Sullivan on June 5, 2002. (GK, ) (Entered: 06/05/2002)
17 Consent MOTION for Extension of Time to File Response to Complaint and Motion for Class Certification by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 06/27/2002)
18 MOTION Order to Disallow Nathaniel D. Johnson from Serving as a Class Counsel by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 06/28/2002)
ORDER granting Consent Motion for Extension of Time to File 17 to file Response to Complaint and response to Motion for Class Certification until July 10, 2002. Signed by Judge Emmet G. Sullivan on July 2, 2002. (GK, ) (Entered: 07/02/2002)
19 MOTION to Stay Briefing on Issue of Class Certification by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1)(Weinstein, Laurie) (Entered: 07/10/2002)
20 MOTION to Dismiss for Lack of Jurisdiction or to Strike Complaints by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21)(Weinstein, Laurie) (Entered: 07/10/2002)
21 Consent MOTION for Extension of Time to File Response/Reply re 19 , 20 Defendant's Motion to Dismiss or Strike by SHARON BLACKMON-MALLOY. (Attachments: # 1 # 2)(Gebhardt, Joseph) (Entered: 07/12/2002)
22 Memorandum in opposition to motion re 18 to plaintiffs' motion for an order to disallow Nathaniel D. Johnson from serving as a class counsel filed by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON JR., MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BONDJONES, GAYLE BOONE, WILBERT BOOTH JR., AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD SR., SYLVIA BRADLEY, ROBERTS BRASWELL JR., TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL JR., STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER JR., REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS. (Attachments: # 1 # 2 # 3 # 4)(td, ) (Entered: 07/17/2002)
ORDER granting Motion for Extension of Time to File Response/Reply 21 . Signed by Judge Emmet G. Sullivan on July 17, 2002. (GK, ) (Entered: 07/17/2002)

07/22/2002 08/05/2002 08/06/2002 08/20/2002 08/22/2002 08/30/2002 09/03/2002
09/07/2002 09/10/2002 09/16/2002

23 REPLY to opposition to motion re 18 Disallow Nathaniel D. Johnson filed by SHARON BLACKMON-MALLOY. (Gebhardt, Joseph) (Entered: 07/22/2002)
24 Consent MOTION for Extension of Time to File opposition to defendant's motion to dismiss or strike the complaints by ALL PLAINTIFFS. (td, ) (Entered: 08/06/2002)
25 ORDER granting plaintiffs' Motion for Extension of Time to respond in opposition to defendant's motion to dismiss or strike complaints until September 3, 2002 24 . Signed by Judge Emmet G. Sullivan on August 6, 2002. (td, ) (Entered: 08/07/2002)
26 NOTICE of Withdrawal by all plaintiffs (Gebhardt, Joseph) (Entered: 08/20/2002)
27 NOTICE to withdraw the apprearances of Elaine Lynette Fitch, James E. Fisher, II and Jenny Celestin as counsel for plaintiffs by ALL PLAINTIFFS (td, ) (Entered: 08/30/2002)
28 Memorandum in opposition to motion re 20 Defendant's Motion to Dismiss filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Office of Compliance web site# 2 Exhibit Thompson letter# 3 Exhibit Ware letter (Ex. C))(Gebhardt, Joseph) (Entered: 08/30/2002)
29 Memorandum in opposition to motion re 20 filed by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDERWISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON JR., MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH JR., AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD SR., SYLVIA BRADLEY, ROBERTS BRASWELL JR., TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL JR., STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER JR., REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS. (Attachments: # 1 # 2)(td, ) (Entered: 09/06/2002)
30 Consent MOTION for Extension of Time to File Response/Reply to Opposition to Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 09/07/2002)
ORDER granting Consent Motion for Extension of Time to File Response/Reply 30 . Signed by Judge Emmet G. Sullivan on September 10,2002. (GK, ) (Entered: 09/10/2002)
31 ORDER denying without prejudice Motion to Certify Class 10 , denying Motion to Disallow Nathaniel D. Johnson from Serving as Class Counsel 18 , granting in part Motion to Stay 19 , ordering Attorney Nathaniel D. Johnson to file pleading with the Court and to Show Cause, and scheduling Status Hearing for October 11,

09/16/2002 09/24/2002
09/30/2002 10/02/2002 10/02/2002 10/02/2002 10/11/2002 10/11/2002 10/13/2002 10/16/2002

2002 at 10:00 a.m. Signed by Judge Emmet G. Sullivan on September 16, 2001. (lcegs1) (Entered: 09/16/2002)
Set/Reset Hearings: Status Conference set for 10/11/2002 10:00 AM in Courtroom 1. (lcegs1) (Entered: 09/16/2002)
32 RESPONSE to 31 show cause order by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON JR., MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH JR., AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD SR., SYLVIA BRADLEY, ROBERTS BRASWELL JR., TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL JR., STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER JR., REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS. (Attachments: # 1)(td, ) (Entered: 09/25/2002)
33 REPLY to 32 Attorney Nathaniel D. Johnson's Response to the Court's Request for Information and Response to Show Cause Order by ALL PLAINTIFFS. (Day, Charles) (Entered: 09/30/2002)
34 ERRATA to Reply of Plaintiffs Blackmon-Malloy et al. to Attorney Nathaniel D. Johnson's Response to the Court's Request for Information and Response to Show Cause Order by ALL PLAINTIFFS. (Day, Charles) (Entered: 10/02/2002)
35 MOTION for Leave to File Excess Pages by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 10/02/2002)
36 REPLY in support of motion re 20 to dismiss or strike complaints filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Mediation Agreement Form# 2 Exhibit July 26, 2001 Letter from BlackmonMalloy to Ware# 3 Exhibit Letter from Office of Compliance to Ware)(Weinstein, Laurie) (Entered: 10/02/2002)
37 Minute Entry: Status Conference held on 10/11/2002 before Judge Sullivan, Case stayed for 60 days and referred to Magistrate Judge Facciola for resolution of attorneys J. Gebhardt and N. Johnson representation of plaintiffs. Status Conference set for 12/13/2002 10:15 AM in Courtroom 1.(Court Reporter Judy Brown (Miller).) (whb, ) (Entered: 10/11/2002)
38 ORDER Signed by Judge Emmet G. Sullivan on October 11, 2002. (lcegs1) (Entered: 10/11/2002)
Set/Reset Hearings: Status Conference set for 12/13/2002 10:15 AM in Courtroom 1. lcegs1) (Entered: 10/13/2002)
CASE REFERRED to Magistrate Judge John M. Facciola for resolution of

10/18/2002 10/18/2002 11/27/2002 12/02/2002
12/06/2002
12/09/2002 12/10/2002
01/08/2003
01/09/2003
01/09/2003
01/09/2003 01/09/2003 01/09/2003 01/09/2003 01/10/2003
01/14/2003 01/20/2003

plaintiff's attorney representation. (cp, ) (Entered: 10/16/2002)
39 Notice to counsel regarding referral of case to Judge Facciola for settlement. (SB, ) (Entered: 10/18/2002)
ORDER granting Motion for Leave to File Excess Pages 35 . Signed by Judge Emmet G. Sullivan on October 18, 2002. (GK, ) (Entered: 10/18/2002)
MAGISTRATE REFERRAL ENDED. (ldc, ) (Entered: 11/27/2002)
40 MOTION to Stay the Claims of the Self-Described Ikard Plaintiffs by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C)(Gebhardt, Joseph) (Entered: 12/02/2002)
41 Consent MOTION to Continue the Status Conference and for an Extension of Time to Respond to a Pending Motion by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 12/06/2002)
ORDER granting 41 Motion to Continue. Signed by Judge Emmet G. Sullivan on December 9, 2002.(lcegs1) (Entered: 12/09/2002)
42 ORDER scheduling status hearing for January 8, 2003 at 10:00 a.m. in Courtroom One. Signed by Judge Emmet G. Sullivan on December 9, 2002. (lcegs1) (Entered: 12/10/2002)
Minute Entry for proceedings held before Judge Emmet G. Sullivan : Status Conference held on 1/8/2003. Status Conference set for 2/20/2003 10:00 AM in Courtroom 1 before Emmet G. Sullivan. (Court Reporter Frank Rangus.) (clv, ) (Entered: 01/08/2003)
Calendar Entry, Set/Reset Hearings: Settlement Conference set for 2/4/2003 02:00 PM before Magistrate Judge John M. Facciola; to be held in chambers, room 1426, first floor. (ldc, ) (Entered: 01/09/2003)
Calendar Entry, Set/Reset Hearings: RE NOTICE: Settlement Conference set for 2/3/2003 02:00 PM before Magistrate Judge John M. Facciola; to be held in chambers, room 1426, first floor. (ldc, ) (Entered: 01/09/2003)
43 First MOTION for Limited Admission Motion for Admission Pro Hac Vice by SHARON BLACKMON-MALLOY. (Gebhardt, Joseph) (Entered: 01/09/2003)
ORDER granting 43 Motion for Limited Admission. Signed by Judge Emmet G. Sullivan on January 9, 2003. (lcegs1) (Entered: 01/09/2003)
44 Scheduling order signed by Judge Emmet G. Sullivan on January 9, 2003. (lcegs1) (Entered: 01/09/2003)
CASE REFERRED to Magistrate Judge John M. Facciola for settlement. (cp, ) (Entered: 01/10/2003)
45 Calendar Entry. Settlement Conference is set for 2/4/2003 02:00 PM before Magistrate Judge John M. Facciola. It will be held in Chambers, Room 1426. Previous calendar entry was entered in error. (lcjf1, ) (Entered: 01/10/2003)
46 MEMORANDUM to the Court Regarding Resolution of Representation Issues from All Plaintiffs. (Gebhardt, Joseph) (Entered: 01/14/2003)
47 WITHDRAWAL of Motion by ALL PLAINTIFFS Plaintiffs' Notice of

01/21/2003 01/29/2003 01/29/2003
01/30/2003 02/05/2003 02/06/2003 02/28/2003 08/19/2003 10/16/2003 10/17/2003 10/17/2003

Withdrawal of Two Motions. (Gebhardt, Joseph) (Entered: 01/20/2003)
48 ORDER denying without prejudice to refiling 20 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Emmet G. Sullivan on January 21, 2003. (lcegs1) (Entered: 01/21/2003)
49 ENTERED IN ERROR.................Joint Second Amended Class Action Complaint ANSWER to Amended Complaint by SHARON BLACKMON-MALLOY. (Gebhardt, Joseph) Modified on 1/30/2003 (cdw, ). (Entered: 01/29/2003)
51 AMENDED COMPLAINT (joint second) against UNITED STATES CAPITOL POLICE BOARD, filed by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON JR., MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH JR., AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD SR., SYLVIA BRADLEY, ROBERTS BRASWELL JR., TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL JR., STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER JR., REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS.(td, ) (Entered: 02/03/2003)
50 Consent MOTION to Consolidate Cases and to Stay Proceedings by SHARON BLACKMON-MALLOY. (Gebhardt, Joseph) (Entered: 01/30/2003)
52 ORDER granting 50 Motion to Consolidate Cases. Signed by Judge Emmet G. Sullivan on February 5, 2003. (lcegs1) (Entered: 02/05/2003)
AS OF 2/5/03, ALL PLEADINGS ARE BEING DOCKETED IN LEAD CASE NUMBER 01CV2221. (td, ) (Entered: 02/06/2003)
53 ORDER consolidating Civil Action 02-2482 with this case. Signed by Judge Emmet G. Sullivan on February 28, 2003. (lcegs1) (Entered: 02/28/2003)
Calendar Entry, Set/Reset Hearings: Settlement Conference set for 9/16/2003 03:30 PM before Magistrate Judge John M. Facciola, to be held in Chambers, room 1426, first floor. (ldc, ) (Entered: 08/19/2003)
54 Joint MOTION for Hearing : Parties' Joint Request for an Early Status Conference by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 10/16/2003)
MINUTE ORDER granting 54 Parties' Joint Motion for an Early Status Conference on December 4, 2003 at 10:00 a.m. in Courtoom One. Signed by Judge Emmet G. Sullivan on October 17, 2003. (lcegs1) (Entered: 10/17/2003)
Set/Reset Hearings: Status Conference set for 12/4/2003 10:00 AM in Courtroom 1 before Judge Emmet G. Sullivan. (lcegs1) (Entered: 10/17/2003)

11/13/2003 11/19/2003 12/04/2003 12/05/2003
12/05/2003 12/05/2003
12/07/2003 12/08/2003 12/15/2003 12/15/2003 12/16/2003 12/19/2003 12/22/2003 12/22/2003 12/22/2003

Reset Hearings: Status Conference set for 12/4/03 is now set for 12/5/2003 at 10:45 AM in Courtroom 1 before Judge Emmet G. Sullivan. (clv, ) (Entered: 11/13/2003)
The settlement conference currently scheduled for November 20, 2003 at 1:00 before Magistrate Judge Facciola is cancelled. (SP, ) (Entered: 11/19/2003)
55 REPORT. Signed by Judge Facciola on 12/4/2003. (lcjf1, ) (Entered: 12/04/2003)
MINUTE ORDER Pursuant to the proceedings held in open court on December 5, 2003, it is by the Court hereby ORDERED that this case shall be returned to the active calendar of this Court; and it is FURTHER ORDERED that the government's request to file a potentially dispositive motion is granted. The government will file its Motion by December 22, 2003. The Response is due by January 22, 2004 and the Reply is due by February 5, 2004. A Motions Hearing will be held on March 10, 2004 at 11:00 a.m. in Courtroom One. Signed by Judge Emmet G. Sullivan on December 5, 2003. (lcegs1, ) (Entered: 12/05/2003)
Set/Reset Hearings: Motion Hearing set for 3/10/2004 11:00 AM in Courtroom 1 before Judge Emmet G. Sullivan. (lcegs1) (Entered: 12/05/2003)
Status Hearing held before Judge Emmet G. Sullivan : Magistrate Judge's Report taken under advisement; joint request for protective order, granted; case to be returned to the active calendar; further status hearing set for 3/10/04 at 11:00 AM; scheduling order to be issued. (Court Reporter: Frank Rangus) (kk) (Entered: 12/05/2003)
56 MEMORANDUM to the Court Regarding Settlement Discussions from Plaintiffs. (Attachments: # 1 Exhibit 1 Letter to CBC)(Gebhardt, Joseph) (Entered: 12/07/2003)
57 TRANSCRIPT of Proceedings held on December 5, 2003 before Judge Emmet G. Sullivan. Court Reporter: Frank J. Rangus. (cp, ) (Entered: 12/09/2003)
58 RESPONSE to Plaintiffs' Memorandum to the Court Regarding Settlement Discussions filed by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 12/15/2003)
59 ERRATA -Notice of Filing of Missing Page by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 12/15/2003)
60 NOTICE by SHARON BLACKMON-MALLOY of Request for Stipulation (Attachments: # 1 # 2 # 3)(Gebhardt, Joseph) (Entered: 12/16/2003)
61 ENTERED IN ERROR.....RESPONSE to Defendant's Response to Plaintiffs' Memorandum to the Court filed by ALL PLAINTIFFS. (Gebhardt, Joseph) Modified on 12/22/2003 (rje, ). (Entered: 12/19/2003)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 61 was entered in error and counsel was instructed to refile said pleading as a Reply." (rje, ) (Entered: 12/22/2003)
62 REPLY to 58 Defendant's Response to Plaintiff's Memorandum to the Court by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 12/22/2003)
63 Consent MOTION for Leave to File Excess Pages In Support of Motion to

12/22/2003
12/22/2003 12/30/2003 01/13/2004 01/15/2004 02/05/2004 02/05/2004 02/05/2004

Dismiss by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 12/22/2003)
64 MOTION to Dismiss Joint Second Amended Class Action Complaint by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit A- Letter June 12, 2001# 2 Errata B - BPA Letter# 3 Exhibit C- Letter August 3, 2001# 4 Errata D-Letter April 20, 2001# 5 Exhibit E - Letter July 3, 2002# 6 Exhibit FTerminated Employees# 7 Exhibit G- Lyles Declaration# 8 Exhibit H - No Request for Counseling# 9 Exhibit I - Untimely Request for Counseling# 10 Errata J - Untimely Request for Mediation# 11 Exhibit K - Hyman Declaration with attachments# 12 Exhibit L- Herrera Declaration# 13 Exhibit M- Letter of August 1, 2001# 14 Exhibit N- Sample Mediation Agreement# 15 Exhibit O- Date of Counseling Request# 16 Exhibit P- Nonparticipation in Promotion Process# 17 Exhibit Q - Declaration of Jan Jones# 18 Exhibit R - General Order# 19 Exhibit S- Collective Bargaining Agreement# 20 Exhibit T- Braswell Grievance# 21 Exhibit U - No Specific Allegations# 22 Text of Proposed Order)(Weinstein, Laurie) (Entered: 12/22/2003)
65 RESPONSE to Plaintiff's Proposed Stipulation Regarding Diversity Training filed by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 12/22/2003)
MINUTE ORDER granting 63 Defendant's Motion for Leave to File Excess Pages. Signed by Judge Emmet G. Sullivan on December 30, 2003. (lcegs1) (Entered: 12/30/2003)
66 Consent MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Dismiss Joint Second Amended Class Action Complaint by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 01/13/2004)
MINUTE ORDER granting 66 Consent Motion for Extension of Time to File Response and Reply. Response due by 2/5/2004. Reply due by 2/26/2004. Signed by Judge Emmet G. Sullivan on January 15, 2004. (lcegs1, ) (Entered: 01/15/2004)
MINUTE ORDER In light of the Minute Order dated January 15, 2004 extending the briefing schedule, the Court, sua sponte, ORDERS that the Motions Hearing previously scheduled for March 10, 2004 will be continued until May 11, 2004 at 10:00 a.m. in Courtroom One. Signed by Judge Emmet G. Sullivan on February 5, 2004. (lcegs1) (Entered: 02/05/2004)
Set/Reset Hearings: Motion Hearing set for 5/11/2004 10:00 AM in Courtroom 1 before Judge Emmet G. Sullivan. (lcegs1) (Entered: 02/05/2004)
67 Memorandum in opposition to motion re 64 to Dismiss filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 - Declaration of Sharon BlackmonMalloy# 2 Attachment A to Exhibit 1# 3 Attachment B to Exhibit 1# 4 Attachment C to Exhibit 1# 5 Attachment D to Exhibit 1# 6 Attachment E to Exhibit 1# 7 Attachment F to Exhibit 1# 8 Exhibit 2 - Declaration of Duvall W. Phelps# 9 Exhibit 3 - Report to Congress# 10 Exhibit 4 - Declaration of Regina BoldenWhitaker# 11 Exhibit 5 - Declaration of Earl Allen, Jr.# 12 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 02/05/2004)

02/05/2004 02/05/2004 02/06/2004 02/19/2004 02/19/2004 02/25/2004 02/26/2004
02/26/2004 02/26/2004 02/26/2004
03/08/2004 03/08/2004

68 MOTION for Leave to File Plaintiffs' Motion for Leave to Re-File Motion for Class Certification and for Consideration with Defendant's Motion to Dismiss by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 02/05/2004)
69 MOTION to Certify Class by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 02/05/2004)
MINUTE ORDER granting 68 Plaintif's Motion for Leave to Re-File. Signed by Judge Emmet G. Sullivan on February 6, 2004. (lcegs1) (Entered: 02/06/2004)
70 Consent MOTION for Extension of Time to Respond to Motion for Class Certification by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 02/19/2004)
71 MOTION for Reconsideration re Order on Motion for Leave to File of February 6, 2004 by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 02/19/2004)
72 Memorandum in opposition to motion re 71 Motion for Reconsideration of February 6, 2004 Order filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 02/25/2004)
MINUTE ORDER granting 70 the Consent Motion for Extension of Time to file a Response and Reply to the Motion for Class Certification. The Response is due no later than March 19, 2004 and the Reply is due no later than April 19, 2004. Signed by Judge Emmet G. Sullivan on February 26, 2004. (lcegs1) (Entered: 02/26/2004)
73 MOTION for Leave to File Excess Pages in Reply Brief by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 02/26/2004)
74 MOTION to Seal Document with Leave of Court Exhibit 6 by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 02/26/2004)
75 REPLY in support of motion re 73 to Dismiss Second Joint Amended Complaint filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Exhibit 1 Jones Declaration# 2 Exhibit Exhibits to Jones Declaration# 3 Exhibit Letter of December 13, 2001# 4 Exhibit Letter of December 12, 2001# 5 Exhibit Riggs Certification# 6 Exhibit Phelps Certification# 7 Exhibit Filed under seal# 8 Exhibit June 20, 2000 Ikard Memorandum# 9 Exhibit Bolden-Whitaker Certification# 10 Exhibit Mills Memorandum# 11 Exhibit Gibson decision# 12 Exhibit OC Website)(Weinstein, Laurie) (Entered: 02/26/2004)
MINUTE ORDER granting 73 Defendant's Motion for Leave to File Excess Pages, and granting 74 Defendant's Motion to Seal Document. Signed by Judge Emmet G. Sullivan on March 8, 2004. (lcegs1) (Entered: 03/08/2004)
MINUTE ORDER granting 71 Defendant's Motion for Reconsideration. Upon consideration of the Motion to Reconsider and the Response thereto, the Court directs that the Court's September 16, 2002 Order staying briefing on the issue of class certification until such time as the Motion to Dismiss has been resolved is reinstated. Signed by Judge Emmet G. Sullivan on March 8, 2004. (lcegs1) (Entered: 03/08/2004)

03/09/2004 03/15/2004
03/18/2004
03/25/2004 03/26/2004 03/29/2004 04/12/2004 04/14/2004
04/14/2004 04/28/2004 05/10/2004 05/11/2004 05/11/2004

76 NOTICE by UNITED STATES CAPITOL POLICE BOARD re 75 Reply in Support, Supplemental Memorandum,,,, Notice of Filing of Sealed Exhibit (Weinstein, Laurie) (Entered: 03/09/2004)
77 MOTION to Strike 75 Reply in Support, Supplemental Memorandum,,,, Plaintiffs' Motion that the Court Not Consider the New Factual Arguments in Defendant's Reply or, Alternatively, Grant Leave for Plaintiffs to File a Sur-Reply by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order Proposed Order# 2 Text of Proposed Order Alternative Order)(Gebhardt, Joseph) (Entered: 03/15/2004)
78 Memorandum in opposition to motion re 77 that the Court not consider the new factual arguments in defendant's reply or, alternatively, grant leave for plaintiffs to file a sur-reply filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Text of Proposed Order)(Weinstein, Laurie) (Entered: 03/18/2004)
79 REPLY to opposition to motion re 77 Motion that the Court Not Consider New Arguments in Defendant's Reply or, in the Alternative, Grant Leave to File a SurReply filed by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 03/25/2004)
80 NOTICE by ALL PLAINTIFFS of Withdrawal of Attorney Susan C. Lee (Gebhardt, Joseph) (Entered: 03/26/2004)
81 MOTION to Add Class Agents by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 03/29/2004)
82 Memorandum in opposition to motion re 81 to add Class agents filed by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 04/12/2004)
MINUTE ORDER granting in part and denying in part 77 Plaintiffs' Motion to Strike or in the alternative, to file a sur-reply. Plaintiffs' Motion to Strike is denied and Plaintiffs' Motion for Leave to File a Sur-reply is granted. Plaintiffs' sur-reply shall be no longer than 20 pages and is due by no later than April 28, 2004. It is FURTHER ORDERED that both parties are to provide chambers with courtesy copies of the Exhibits attached to their pleadings by no later than April 21, 2004. Signed by Judge Emmet G. Sullivan on April 14, 2004. (lcegs1) (Entered: 04/14/2004)
83 NOTICE of Appearance by Robin M. Earnest on behalf of UNITED STATES CAPITOL POLICE BOARD (Earnest, Robin) (Entered: 04/14/2004)
84 RESPONSE to Defendant's Reply filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 2-A# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5) (Gebhardt, Joseph) (Entered: 04/28/2004)
85 NOTICE of Appearance by Richard Lloyd Thompson II on behalf of all plaintiffs (Thompson, Richard) (Entered: 05/10/2004)
Minute Entry for proceedings held before Judge Emmet G. Sullivan : Motion Hearing held on 5/11/2004 regarding the Motion to Dismiss; the motion was heard and taken under advisement(Court Reporter Elaine Merchant.) (clv, ) (Entered: 05/11/2004)
86 NOTICE by UNITED STATES CAPITOL POLICE BOARD of Filing of Chart

05/25/2004 05/25/2004
05/26/2004 05/26/2004 06/08/2004 06/11/2004 09/30/2004 10/08/2004 10/15/2004 10/18/2004
10/18/2004 12/14/2004

(Attachments: # 1 Exhibit Chart Reflecting Claims To Be Dismissed)(Weinstein, Laurie) (Entered: 05/11/2004)
87 Unopposed MOTION for Leave to File Memorandum to the Court by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 05/25/2004)
88 MEMORANDUM from Plaintiffs Regarding Rebuttal to Defendant's Arguments, Plus Complete Citations. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y)(Gebhardt, Joseph) (Entered: 05/26/2004)
MINUTE ORDER granting 87 the Unopposed Motion for Leave to File. Signed by Judge Emmet G. Sullivan on May 26, 2004. (lcegs1) (Entered: 05/26/2004)
89 TRANSCRIPT of Proceedings held on May 11, 2004 before Judge Emmet G. Sullivan. Court Reporter: Elaine A. Merchant. (cp, ) (Entered: 05/27/2004)
90 RESPONSE to Plaintiffs' Memorandum to the Court Regarding Rebuttal to Defendant's Arguments, plus Complete Citations filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Earnest, Robin) (Entered: 06/08/2004)
91 REPLY to 90 Defendant's Response to Plaintiffs' Rebuttal Memorandum filed by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 06/11/2004)
92 ORDER granting 64 Defendant's Motion to Dismiss, denying as moot 69 Plaintiffs' Motion to Certify Class, denying 81 Plaintiffs' Motion to Add Class Agents. Signed by Judge Emmet G. Sullivan on September 30, 2004. (lcegs1) (Entered: 09/30/2004)
93 NOTICE by UNITED STATES CAPITOL POLICE BOARD Notice of Entry and Withdrawal of Attorney Appearance (McBarnette, Andrea) (Entered: 10/08/2004)
94 Consent MOTION for Extension of Time to File Motion for Reconsideration by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 10/15/2004)
MINUTE ORDER granting 94 Plaintiffs' Consent Motion for Extension of Time to file their Motion for Reconsideration. Plaintiffs' motion shall be due on or before December 17, 2004. Defendant's response shall be due on or before February 18, 2005. Plaintiffs' reply shall be due on or before March 18, 2005. Signed by Judge Emmet G. Sullivan on October 18, 2004. (lcegs1) (Entered: 10/18/2004)
Set/Reset Deadlines: Motion for Reconsideration due by 12/17/2004. Response due by 2/18/2005. Replies due by 3/18/2005. (lcegs1) (Entered: 10/18/2004)
95 Consent MOTION for Extension of Time to file Motion for Reconsideration of the Court's September 30, 2004 Memorandum Opinion & Order by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 12/14/2004)

12/15/2004 12/15/2004 01/14/2005
03/21/2005
03/22/2005

MINUTE ORDER granting 95 Consent Motion for Extension of Time to File Motion for Reconsideration. Plaintiffs' motion shall be due on before 1/14/2005; Defendant's response shall be due on or before 3/22/2005; Plaintiffs' reply shall be due on or before 4/21/2005. Signed by Judge Emmet G. Sullivan on December 15, 2004. (lcegs1) (Entered: 12/15/2004)
Set/Reset Deadlines: Plaintiff's Motions due by 1/14/2005. Defendant's Responses due by 3/22/2005 Plaintiff's Replies due by 4/21/2005. (clv, ) (Entered: 12/15/2004)
96 MOTION for Reconsideration re 92 Order on Motion to Dismiss, Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief by ALL PLAINTIFFS. (Attachments: # 1 Table of Contents# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26# 28 Exhibit 27# 29 Exhibit 28# 30 Exhibit 29# 31 Exhibit 30# 32 Exhibit 31# 33 Exhibit 32# 34 Exhibit 33# 35 Exhibit 34# 36 Exhibit 35# 37 Exhibit 36# 38 Exhibit 37# 39 Exhibit 38# 40 Exhibit 39# 41 Exhibit 40# 42 Exhibit 41# 43 Exhibit 42# 44 Exhibit 43# 45 Exhibit 44# 46 Exhibit 45# 47 Exhibit 46# 48 Exhibit 47# 49 Exhibit 48# 50 Exhibit 49# 51 Exhibit 50# 52 Exhibit 51# 53 Exhibit 52# 54 Exhibit 53# 55 Exhibit 54# 56 Exhibit 55# 57 Exhibit 56# 58 Exhibit 57# 59 Exhibit 58# 60 Exhibit 59# 61 Exhibit 60# 62 Exhibit 61# 63 Exhibit 62# 64 Exhibit 63# 65 Exhibit 64# 66 Exhibit 65# 67 Exhibit 66# 68 Exhibit 67# 69 Exhibit 68# 70 Exhibit 69# 71 Exhibit 70# 72 Exhibit 71# 73 Exhibit 72# 74 Exhibit 73# 75 Exhibit 74# 76 Exhibit 75# 77 Exhibit 76# 78 Exhibit 77# 79 Exhibit 78# 80 Exhibit 79# 81 Exhibit 80# 82 Exhibit 81# 83 Exhibit 82# 84 Exhibit 83# 85 Exhibit 84# 86 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 01/14/2005)
97 NOTICE by MONTE CURTIS, RONALD CURTIS, ALL PLAINTIFFS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, SHARON BLACKMON-MALLOY, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, DAMON ADAMS, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, FRANK ADAMS, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR (Attachments: # 1 Exhibit Plaintiffs' Letter to Defendant's Counsel)(Johnson, Nathaniel) (Entered: 03/21/2005)
In response to 97 Plaintiffs' Notice, in the event the parties are interested in

pursuing settlement discussions, which the Court strongly encourages, the Court has been notified by Magistrate Judge Facciola's chambers that he is available to meet with the parties. Counsel should contact Judge Facciola's chambers directly to schedule a settlement conference if they wish to pursue settlement. (lcegs1) (Entered: 03/22/2005)

03/22/2005

98 Memorandum in opposition to motion re 96 filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit 1 Declaration of Herrera# 2 Exhibit 2 Robinson Declaration# 3 Exhibit 3 Demas Declaration# 4 Exhibit 4 Jones Dec. Part A# 5 Errata 4 Jones Dec. Part B# 6 Exhibit 5 Perry Dec.# 7 Exhibit 6 Garner Dec.# 8 Exhibit 7 Summary Chart)(Weinstein, Laurie) (Entered: 03/22/2005)

03/22/2005 99 Consent MOTION for Leave to File Excess Pages In Opposition to Plaintiffs' Motion for Reconsideration by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 03/22/2005)

03/25/2005 100 MOTION for Extension of Time to File Response/Reply as to 98 Memorandum in Opposition, in Order to Pursue Settlement Discussions by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit)(Day, Charles) (Entered: 03/25/2005)

03/26/2005

MINUTE ORDER granting 100 Motion for Extension of Time to File Response/Reply re 96 MOTION for Reconsideration re 92 Order on Motion to Dismiss, Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief. Replies due by 5/31/2005. Signed by Judge Emmet G. Sullivan on March 26, 2005. (lcegs1) (Entered: 03/26/2005)

03/26/2005

MINUTE ORDER granting 99 Consent Motion for Leave to File Excess Pages. Defendant may file an opposition brief of no more than 56 pages. Signed by Judge Emmet G. Sullivan on March 26, 2005. (lcegs1) (Entered: 03/26/2005)

04/13/2005

Set/Reset Hearings: Settlement Conference set for 4/28/2005 11:00 AM in Chambers before Magistrate Judge John M. Facciola. (SP, ) (Entered: 04/13/2005)

04/26/2005

Set/Reset Hearings: The Settlement Conference previously set for 4/28/2005 has been RESET. The Settlement Conference will now take place on two days: 5/12/2005 at 2:00 PM and 5/23/2005 at 2:00 PM in Chambers before Magistrate Judge John M. Facciola. (lcjf1, ) (Entered: 04/26/2005)

04/26/2005

CORRECTION: Set/Reset Hearings: The two Settlement Conferences will take place on 5/6/2005 at 3:00 PM and 5/23/2005 at 2:00 PM in Chambers before Magistrate Judge John M. Facciola. (lcjf1, ) (Entered: 04/26/2005)

05/31/2005 101 Consent MOTION for Leave to File Excess Pages by SHAFTON ADAMS, ROY ANDERSON, REGINA BOLDEN-WHITAKER, SHARON BLACKMONMALLOY, CLINTON BRADFORD, ROBERTS BRASWELL, JR. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 05/31/2005)

05/31/2005 102 REPLY to opposition to motion re 96 Plaintiffs' Motion for Reconsideration of the Court's September 30, 2004 Memorandum Opinion and Order filed by SHAFTON ADAMS, ROY ANDERSON, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY, CLINTON BRADFORD, ROBERTS BRASWELL, JR. (Attachments: # 1 Exhibit Declaration of Sharon BlackmonMalloy)(Gebhardt, Joseph) (Entered: 05/31/2005)

06/01/2005 103 Consent MOTION for Extension of Time to File Response/Reply by FRANK ADAMS. (Johnson, Nathaniel) (Entered: 06/01/2005)

06/01/2005

MINUTE ORDER granting 101 Consent Motion for Leave to File Excess Pages, granting 103 Consent Motion for Extension of Time to File Response/Reply re 96 MOTION for Reconsideration re 92 Order on Motion to Dismiss, Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief. Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Reconsideration of the Court's September 30, 2004 Memorandum Opinion and Order shall not exceed 50 pages. Replies due by 6/14/2005. Signed by Judge Emmet G. Sullivan on June 1, 2005. (lcegs1) (Entered: 06/01/2005)

06/01/2005

Set/Reset Deadlines: Replies due by 6/14/2005. (clv, ) (Entered: 06/01/2005)

06/10/2005 104 MOTION to Strike Plaintiffs' Reply or, in the alternative, To Allow Sur-reply by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Text of Proposed Order)(Weinstein, Laurie) (Entered: 06/10/2005)

06/14/2005

MINUTE ORDER granting in part and denying in part 104 Defendant's Motion to Strike Arguments or, in the Alternative, to File Sur-reply. The Defendant may file a sur-reply by no later than July 28, 2005. There shall be no further pleadings permitted in this matter. Signed by Judge Emmet G. Sullivan on June 14, 2005. (lcegs1) (Entered: 06/14/2005)

06/14/2005

Set/Reset Deadlines: Defendant's sur-reply due by 7/28/2005. (clv, ) (Entered: 06/14/2005)

06/14/2005 105 REPLY to opposition to motion re 96 filed by FRANK ADAMS. (Johnson, Nathaniel) (Entered: 06/14/2005)

07/19/2005 106 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Supplement Britton v. Architect of the Capitol)(Day, Charles) (Entered: 07/19/2005)

07/19/2005 107 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Supplement Perez v. Office of Rep. Sheila Jackson-Lee)(Day, Charles) (Entered: 07/19/2005)

07/24/2005

MINUTE ORDER. Plaintifffs are instructed to refile 106 and 107 Notice of Supplemental Authority and to file all further pleadings in this matter in 12-point Times New Roman or similarly appropriate font. Signed by Judge Emmet G. Sullivan on July 24, 2005. (lcegs1) (Entered: 07/24/2005)

07/27/2005 108 ORDER consolidating 02-1346, 02-859, 02-2481, 03-1505, 03-1592, 03-2644, 04-320, 04-943, 05-491 as related and shall proceed under CA 01-2221, the remaining cases are dismissed without prejudice.. Signed by Judge Emmet G. Sullivan on 7/26/05. (clv, ) (Entered: 07/27/2005)

07/27/2005 109 NOTICE of Filing by ALL PLAINTIFFS re Order, (Attachments: # 1 Notice of Supplemental Authority# 2 Britton v. Architect of the Capitol# 3 Notice of Supplemental Authority# 4 Perez v. Rep. Sheila Jackson-Lee)(Day, Charles) (Entered: 07/27/2005)

07/28/2005 110 SURREPLY tore 105 Plaintiffs' Reply in Support of Their Motion for Reconsideration filed by UNITED STATES CAPITOL POLICE BOARD.

(Weinstein, Laurie) Modified on 7/29/2005 (td, ). (Entered: 07/28/2005)

08/04/2005 111 RESPONSE to 109 , 106 , 107 Plaintiffs' Notices of Supplemental Authority filed by UNITED STATES CAPITOL POLICE BOARD. (Weinstein, Laurie) (Entered: 08/04/2005)

08/04/2005

MINUTE ORDER denying without prejudice plaintiffs' pending 96 Motion for Reconsideration. Plaintiffs' motion is denied without prejudice to a referral to U.S. Magistrate Judge Facciola pursuant to LcvR 72(b) for a Report and Recommendation regarding the issue of whether any class members are entitled to relief from this Court's Memorandum Opinion and Order issued on September 30, 2004. To assist the Magistrate Judge, the parties are directed to file a side-by-side chart stating with clarity and precision for each plaintiff the exact cause of action that a plaintiff has, the precise factual and legal predicates for each claim, whether administrative proceedings were commenced and concluded for that plaintiff, and, if so, the detailed nature of those proceedings and defendants' precise defenses to the plaintiff's claims. The parties are instructed to contact Judge Facciola's chambers during the week of August 15, 2005, regarding all scheduling related to this Order. In the event the Magistrate Judge's Report and Recommendation concludes that there are class members entitled to relief, the Magistrate Judge may wish to include his recommendations as to further proceedings before this Court, including but not limited to the appropriateness of an amended complaint delineating any remaining plaintiffs and claims. Signed by Judge Emmet G. Sullivan on August 4, 2005. (lcegs1) (Entered: 08/04/2005)

08/16/2005

CASE REFERRED to Magistrate Judge John M. Facciola for Report and Recommendation. (jsc) (Entered: 08/16/2005)

08/16/2005 112 ORDER directing plaintiffs' counsel to file praecipe within 10 days of the date of this Order. See Order for details. Signed by Magistrate Judge John M. Facciola on 8/16/2005. (lcjf1, ) (Entered: 08/16/2005)

08/18/2005 113 Notice to counsel regarding referral to Magistrate Judge John M. Facciola for a Report and Recommendation. Signed by Magistrate Judge John M. Facciola on 8/18/05. (SP, ) (Entered: 08/18/2005)

08/22/2005 114 RESPONSE to Magistrate Judge John M. Facciola's order in case 03-1592 for plaintiff of to provide contact information filed by DERRICK W. MACON. (td, ) (Entered: 08/24/2005)

08/26/2005 115 NOTICE Praecipe by ALL PLAINTIFFS re 112 Order (Gebhardt, Joseph) (Entered: 08/26/2005)

08/26/2005 116 MOTION to Withdraw as Attorney by MONTE CURTIS, RONALD CURTIS, KENNETH BALDWIN, GAYLE BOONE, TYRONE BROOKS, STEPHEN CANNADY, WILLIAM CLEVELAND, MICHAEL COVINGTON. (Attachments: # 1 Exhibit Notice of Withdrawal Letter# 2 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 08/26/2005)

08/29/2005 117 NOTICE OF WITHDRAWAL OF APPEARANCE as to FRANK ADAMS. Attorney Nathaniel D. Johnson terminated. (Johnson, Nathaniel) (Entered: 08/29/2005)

09/02/2005 118 NOTICE Supplemental Praecipe by ALL PLAINTIFFS (Gebhardt, Joseph)

(Entered: 09/02/2005)

09/02/2005 119 MOTION to Strike 116 MOTION to Withdraw as Attorney in Part by TYRONE BROOKS, STEPHEN CANNADY. (Attachments: # 1 Text of Proposed Order) (Gebhardt, Joseph) (Entered: 09/02/2005)

09/02/2005 120 Second MOTION to Withdraw as Attorney by CLINTON BRADFORD, ROBERTS BRASWELL, JR. (Attachments: # 1 Text of Proposed Order) (Gebhardt, Joseph) (Entered: 09/02/2005)

11/30/2005 121 NOTICE Withdrawal of Appearance by FRANK ADAMS Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05cv-00491-EGS(Johnson, Nathaniel) (Entered: 11/30/2005)

12/01/2005 122 ORDER Striking Nathaniel D. Johnson's Notice of Withdrawal 121 . Signed by Magistrate Judge John M. Facciola on 12/1/05. Associated Cases: 1:01-cv-02221EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491EGS(lcjf1, ) (Entered: 12/01/2005)

01/30/2006 123 Joint MOTION for Scheduling Conference by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Gebhardt, Joseph) (Entered: 01/30/2006)

02/23/2006 124 ORDER granting 123 Motion Status Conference. Status conference set for 3/16/06 at 10:00 a.m. in a courtroom to be determined at a later date. Signed by Magistrate Judge John M. Facciola on 2/23/06. (Attachments: # 1 Exhibit Chart A# 2 Exhibit Chart B) Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS,1:04-cv-00320-EGS, 1:04cv-00943-EGS,1:05-cv-00491-EGS(lcjf1, ) (Entered: 02/23/2006)

03/03/2006 125 MOTION Suspension of Co-counsel Agreement for Purposes of Settlement Discussions by FRANK ADAMS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Johnson, Nathaniel) (Entered: 03/03/2006)

03/15/2006 126 NOTICE of Appearance by Valencia R. Rainey on behalf of SHARON BLACKMON-MALLOY Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Rainey, Valencia) (Entered: 03/15/2006)

03/16/2006

ORDER granting 125 Consent Motion for Suspension of Co-Counsel Agreement for Purposes of Settlement Discussions. Signed by Magistrate Judge John M. Facciola on 3/16/06. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(lcjf1, ) (Entered: 03/16/2006)

03/16/2006

Minute Entry for proceedings held before Magistrate Judge John M. Facciola :

Status Conference held on 3/16/2006. (Court Reporter Pro Typist.) Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943EGS,1:05-cv-00491-EGS(ldc, ) (Entered: 03/16/2006)

03/31/2006 127 ORDER re matters discussed at March 16, 2006 status conference and granting in part and denying in part 116 Motion to Withdraw as Counsel, granting 119 Motion to Strike, and granting in part and denying in part 120 Second Motion to Withdraw as Counsel. Signed by Magistrate Judge John M. Facciola on 3/31/06. (Attachments: # 1 Exhibit Chart A# 2 Exhibit Chart B) Associated Cases: 1:01-cv02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv00491-EGS(lcjf1, ) (Entered: 03/31/2006)

04/28/2006 128 Consent MOTION for Extension of Time to File List of Plaintiffs Whom GEBHARDT & ASSOCIATES, LLP Represents by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 04/28/2006)

05/01/2006

MINUTE ORDER granting 128 Motion for Extension of Time to File List of Plaintiffs Whom Gebhardt & Associates, LLP Represents. The list is now due no later than May 12, 2006. Signed by Judge Emmet G. Sullivan on May 1, 2006. (lcegs2) (Entered: 05/01/2006)

05/12/2006 129 NOTICE of Plaintiffs Represented by GEBHARDT & ASSOCIATES, LLP by ALL PLAINTIFFS Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Gebhardt, Joseph) (Entered: 05/12/2006)

05/31/2006 130 Consent MOTION for Extension of Time to File Charts A & B by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv00491-EGS(Day, Charles) (Entered: 05/31/2006)

05/31/2006 131 Consent MOTION for Extension of Time to File Chart Out of Time by FRANK ADAMS. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Johnson, Nathaniel) (Entered: 05/31/2006)

06/02/2006

PAPERLESS ORDER granting 130 Plaintiffs' Consent Motion for a Two-Day Extension of Time to File Charts A & B, and granting 131 Consent Motion to File Chart Out of Time. Signed by Magistrate Judge John M. Facciola on 6/2/06. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv00943-EGS,1:05-cv-00491-EGS(lcjf1, ) (Entered: 06/02/2006)

06/02/2006 132 Third MOTION to Withdraw as Attorney by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-

00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 06/02/2006)

06/02/2006 133 RESPONSE TO ORDER OF THE COURT re 127 to File Charts A and B filed by ALL PLAINTIFFS. (Attachments: # 1 Proposed Substitutions to Chart A# 2 Chart B)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) Modified on 6/5/2006 (td, ). (Entered: 06/02/2006)

06/02/2006 134 MOTION for Hearing by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 06/02/2006)

06/02/2006 135 MEMORANDUM by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 06/02/2006)

06/09/2006 136 MOTION to Withdraw as Attorney (Fourth) by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 06/09/2006)

06/09/2006 137 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Resorted Chart B)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Day, Charles) (Entered: 06/09/2006)

06/15/2006 138 Consent MOTION for Extension of Time to File Chart B by FRANK ADAMS. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv00943-EGS,1:05-cv-00491-EGS(Johnson, Nathaniel) (Entered: 06/15/2006)

06/16/2006 139 MOTION to Strike 135 Memorandum, in support of Motion to Strike and in opposition to Plaintiff's Mediation Memorandum by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Memorandum in Support)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05cv-00491-EGS(Weinstein, Laurie) (Entered: 06/16/2006)

06/19/2006

PAPERLESS ORDER granting 138 Final Consent Motion to File Chart Out of Time. Signed by Magistrate Judge John M. Facciola on 6/19/06. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943EGS,1:05-cv-00491-EGS(lcjf1, ) (Entered: 06/19/2006)

06/19/2006 142 ORDER that the above-captioned Civil Action No. 06-653 is consolidated as related to Civil Action No. 01-2221 and chall proceed under Civil Action No. 012221. Civil Action No. 06-653 is dismissed without prejudice. Signed by Judge

Emmet G. Sullivan on 6/19/06. Associated Cases: 1:01-cv-02221-EGS-JMF,1:06cv-00653-EGS(dot, ) (Entered: 06/20/2006)

06/20/2006 140 Final MOTION for Extension of Time to File Out of Time, One Day by FRANK ADAMS. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS(Johnson, Nathaniel) (Entered: 06/20/2006)

06/20/2006 141 NOTICE of Filing by FRANK ADAMS (Attachments: # 1 Exhibit "Chart B")Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS(Johnson, Nathaniel) (Entered: 06/20/2006)

06/21/2006

PAPERLESS ORDER granting 140 Motion to File Chart Out of Time. Signed by Magistrate Judge John M. Facciola on 6/21/06. Associated Cases: 1:01-cv-02221EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS,1:06cv-00653-EGS(lcjf1, ) (Entered: 06/21/2006)

06/30/2006 143 Memorandum in opposition to re 139 MOTION to Strike 135 Memorandum, in support of Motion to Strike and in opposition to Plaintiff's Mediation Memorandum filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04cv-00943-EGS,1:05-cv-00491-EGS,1:06-cv-00653-EGS(Day, Charles) (Entered: 06/30/2006)

07/10/2006 144 REPLY to opposition to motion re 139 MOTION to Strike 135 Memorandum, in support of Motion to Strike and in opposition to Plaintiff's Mediation Memorandum filed by UNITED STATES CAPITOL POLICE BOARD. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv00943-EGS,1:05-cv-00491-EGS,1:06-cv-00653-EGS(Weinstein, Laurie) (Entered: 07/10/2006)

07/18/2006 145 REPLY to opposition to motion re 134 MOTION for Hearing filed by ALL PLAINTIFFS. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS,1:06-cv-00653EGS(Gebhardt, Joseph) (Entered: 07/18/2006)

12/06/2006 146 MOTION Reinstate Co-Counsel Agreement/Suspend Mediation re Order on Motion for Miscellaneous Relief, by FRANK ADAMS. Associated Cases: 1:01cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv00491-EGS,1:06-cv-00653-EGS(Johnson, Nathaniel) (Entered: 12/06/2006)

12/07/2006 147 MOTION to Withdraw as Attorney by DERRICK W. MACON. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv-02644-EGS, 1:04cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS,1:06-cv-00653EGS(Johnson, Nathaniel) (Entered: 12/07/2006)

12/14/2006

MINUTE ORDER granting 147 Motion to Withdraw as Attorney. Nathaniel D. Johnson is withdrawn as the legal representative on behalf of Derrick Macon in this matter. Signed by Magistrate Judge John M. Facciola on 12/13/06. Associated Cases: 1:01-cv-02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02cv-02481-EGS,1:03-cv-02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943EGS,1:05-cv-00491-EGS,1:06-cv-00653-EGS(lcjf1, ) (Entered: 12/14/2006)

02/28/2007 148 MOTION for Hearing for Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order # 2 Text of Proposed Order)Associated Cases: 1:01-cv-02221EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481-EGS,1:03-cv02644-EGS, 1:04-cv-00320-EGS,1:04-cv-00943-EGS,1:05-cv-00491-EGS,1:06cv-00653-EGS(Day, Charles) (Entered: 02/28/2007)

03/07/2007 149 Memorandum in opposition to re 148 MOTION for Hearing for Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record filed by UNITED STATES CAPITOL POLICE BOARD. Associated Cases: 1:01-cv02221-EGS-JMF,1:02-cv-00859-EGS,1:02-cv-01346-EGS,1:02-cv-02481EGS,1:03-cv-01592-EGS, 1:03-cv-02644-EGS,1:04-cv-00320-EGS,1:04-cv00943-EGS,1:05-cv-00491-EGS,1:06-cv-00653-EGS(McBarnette, Andrea) (Entered: 03/07/2007)

03/16/2007 150 REPLY to opposition to motion re 148 MOTION for Hearing for Evidentiary Hearing or Motion for Leave to Submit Affidavits for the Record filed by ALL PLAINTIFFS. (Day, Charles) (Entered: 03/16/2007)

03/19/2007 151 REPORT AND RECOMMENDATION. Signed by Magistrate Judge John M. Facciola on 3/19/07. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C# 4 Appendix D) Associated Cases: 1:01-cv-02221-EGS-JMF et al.(lcjf1, ) (Entered: 03/19/2007)

03/19/2007 152 ORDER denying (134) Motion for Hearing; granting (136) Motion to Withdraw as Attorney; granting (139) Motion to Strike; granting (146) Motion to Temporarily Re-Instate Co-Counsel Agreement; denying (148) Second Motion for Hearing, in case 1:01-cv-02221-EGS-JMF, granting (41) Motion to Strike in case 1:03-cv-02644-EGS; granting (17) Motion to Strike in case 1:04-cv-00320-EGS. IT IS FURTHER ORDERED that document (135), Plaintiffs' Memorandum of Law, is STRICKEN from the record. IT IS FURTHER ORDERED that counsel shall submit supporting affidavits in conformance with this Order no later than April 2, 2007. Signed by Magistrate Judge John M. Facciola on 3/19/07. Associated Cases: 1:01-cv-02221-EGS-JMF, 1:02-cv-01346-EGS, 1:02-cv-01859EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(lcjf1, ) (Entered: 03/19/2007)

03/26/2007 153 Consent MOTION for Extension of Time to File Supplemental Information/Affidavits by FRANK ADAMSMotions referred to John M. Facciola. (Johnson, Nathaniel) (Entered: 03/26/2007)

03/27/2007

MINUTE ORDER granting (153) Motion to Enlarge in case 1:01-cv-02221-EGSJMF. The deadline for Plaintiffs' supporting affidavits is hereby extended two weeks until April 16, 2007. Signed by Magistrate Judge John M. Facciola on

3/26/07. Associated Cases: 1:01-cv-02221-EGS-JMF, 1:02-cv-01346-EGS, 1:02cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491EGS, 1:06-cv-00653-EGS(lcjf1, ) (Entered: 03/27/2007)

03/29/2007 155 RESPONSE TO ORDER OF THE COURT re Minute Order on Motion for Extension of Time to File, filed by DERRICK W. MACON. (Attachments: # 1 Exhibit)(jf, ) (Entered: 04/03/2007)

04/02/2007 154 OBJECTION to 151 Report and Recommendations filed by ALL PLAINTIFFS. (Gebhardt, Joseph) (Entered: 04/02/2007)

04/13/2007 156 REPLY filed by FRANK ADAMS. (Attachments: # 1 Affidavit # 2 Exhibit 2001 Certification# 3 Exhibit 2001 Certificate of Official Record# 4 Exhibit 2001 End of Mediation Notice# 5 Exhibit 2003 Certification# 6 Exhibit 2003 Certificate of Official Record# 7 Exhibit 2003 End of Mediation# 8 Exhibit 2003 Agreement to Mediate# 9 Exhibit 2004 Certification# 10 Exhibit 2004 Certificate of Official Record# 11 Exhibit 2004 Agreement to Mediate# 12 Exhibit 2004 Notice of Extenion of Mediation# 13 Exhibit 2004 End of Mediation Notice# 14 Exhibit 2006 Certification# 15 Exhibit 2006 Certificate of Official Record# 16 Exhibit 2006 Agreement to Mediate# 17 Exhibit 2006 Notice of End of Mediation# 18 Exhibit Corresponding Ofc. of Compliance and Case Numbers)(Johnson, Nathaniel) (Entered: 04/13/2007)

04/16/2007 157 NOTICE of Filing 151 by ALL PLAINTIFFS (Attachments: # 1 Affidavit Declaration of Ave Maria Harris# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26# 28 Exhibit 27)(Gebhardt, Joseph) . (Entered: 04/16/2007)

04/16/2007 158 REPLY filed by SHARON BLACKMON-MALLOY. (Attachments: # 1 Exhibit 2001 Certificate of Official Record# 2 Exhibit 2003 Certification of Official Record# 3 Affidavit Richard Webb)Associated Cases: 1:01-cv-02221-EGS-JMF et al.(Johnson, Nathaniel) (Entered: 04/16/2007)

04/16/2007 159 NOTICE of Filing 151 by FRANK ADAMS (Attachments: # 1 Exhibit 2003 Certification of Official Record# 2 Affidavit Gary Goines)(Johnson, Nathaniel) . (Entered: 04/16/2007)

04/16/2007 160 NOTICE of Filing 151 by RICHARD R. WEBB (Attachments: # 1 Exhibit 2003 Certification of Official Record# 2 Affidavit Richard Webb)Associated Cases: 1:01-cv-02221-EGS-JMF, 1:04-cv-00320-EGS(Johnson, Nathaniel) . (Entered: 04/16/2007)

04/16/2007 161 NOTICE of Filing 151 by BRENT A. MILLS (Attachments: # 1 Exhibit 2003 Certification of Official Record# 2 Affidavit Brent Mills)Associated Cases: 1:01cv-02221-EGS-JMF, 1:04-cv-00320-EGS(Johnson, Nathaniel). (Entered: 04/16/2007)

04/17/2007

MINUTE ORDER. Defendant's response, if any, to 154 Plaintiffs' Objections to

the Magistrate Judge's Report and Recommendation is due no later than May 1, 2007. Plaintiffs' reply, if required, is due no later than May 15, 2007. Signed by Judge Emmet G. Sullivan on April 17, 2007. Associated Cases: 1:01-cv-02221EGS-JMF et al. (lcegs1) (Entered: 04/17/2007)

04/18/2007

Set/Reset Deadlines: Responses due by 5/1/2007,Replies due by 5/15/2007. (clv, ) (Entered: 04/18/2007)

04/26/2007 162 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 04/26/2007)

05/07/2007 163 MOTION for Extension of Time to Respond to Plaintiffs' Objections by THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE, UNITED STATES CAPITOL POLICE BOARDMotions referred to John M. Facciola. (Attachments: # 1 Exhibit 4-26-07 Motion to Extend)Associated Cases: 1:01-cv-02221-EGS-JMF et al.(McBarnette, Andrea) (Entered: 05/07/2007)

05/07/2007 164 Memorandum in opposition to re 163 MOTION for Extension of Time to Respond to Plaintiffs' Objections and Supplementary Declarations filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 05/07/2007)

05/08/2007 165 REPLY to opposition to 163 MOTION for Extension of Time to Respond to Plaintiffs' Objections filed by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221EGS-JMF et al.(McBarnette, Andrea) . (Entered: 05/08/2007)

05/08/2007

MINUTE ORDER granting 163 Defendant's Motion for Extension of Time. Defendant's response to 154 Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation is due no later than May 15, 2007. Plaintiffs' reply, if any, is due no later than May 31, 2007. Signed by Judge Emmet G. Sullivan on May 8, 2007. (lcegs1) (Entered: 05/08/2007)

05/15/2007 166 SUPPLEMENTAL REPORT AND RECOMMENDATION re (51 in 1:01-cv02221-EGS-JMF) Amended Complaint. Signed by Magistrate Judge John M. Facciola on 5/15/07. Associated Cases: 1:01-cv-02221-EGS-JMF et al.(lcjf1, ) (Entered: 05/15/2007)

05/15/2007 167 RESPONSE to 154 Plaintiffs' Objections to Report and Recommendations filed by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01-cv-02221-EGSJMF et al.(McBarnette, Andrea) . (Entered: 05/15/2007)

05/23/2007 168 OBJECTION to 166 SUPPLEMENTAL REPORT AND RECOMMENDATION filed by DERRICK W. MACON. (jf, ) (Entered: 05/24/2007)

05/30/2007 169 OBJECTION to 166 Report and Recommendations filed by ALL PLAINTIFFS. (Attachments: # 1 Affidavit of Ave Maria Harris# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 7# 5 Exhibit 8# 6 Exhibit 9# 7 Exhibit 11# 8 Exhibit 13# 9 Exhibit 18# 10 Exhibit 19# 11 Exhibit 20# 12 Exhibit 21# 13 Exhibit 26# 14 Exhibit 27)

(Gebhardt, Joseph) (Entered: 05/30/2007)

05/30/2007 170 OBJECTION to 166 Report and Recommendations filed by FRANK ADAMS. (Johnson, Nathaniel) (Entered: 05/30/2007)

05/31/2007 171 REPLY to Defendant's Response to Objections filed by ALL PLAINTIFFS. (Attachments: # 1 Affidavit /Declaration of Regina Bolden-Whitaker)(Gebhardt, Joseph) (Entered: 05/31/2007)

05/31/2007 172 MOTION for Hearing by ALL PLAINTIFFSMotions referred to John M. Facciola. (Attachments: # 1 Affidavit /Declaration of Regina Bolden-Whitaker# 2 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 05/31/2007)

05/31/2007 173 REPLY to 167 RESPONSE to 154 Plaintiffs' Objections to Report and Recommendations filed by SHARON BLACKMON-MALLOY. Associated Cases: 1:01-cv-02221-EGS-JMF, 1:02-cv-01859-EGS(Johnson, Nathaniel). (Entered: 05/31/2007)

05/31/2007 174 REPLY to 167 RESPONSE to 154 Plaintiffs' Objections to Report and Recommendations filed by FRANK ADAMS. (Johnson, Nathaniel). (Entered: 05/31/2007)

06/04/2007 175 NOTICE of Filing by ALL PLAINTIFFS (Gebhardt, Joseph) (Entered: 06/04/2007)

06/06/2007

MINUTE ORDER. Defendant's response, if any, to 168 169 170 Plaintiffs' Objections to the Magistrate Judge's Supplemental Report and Recommendation is due no later than June 22, 2007. Plaintiffs' reply, if required, is due no later than July 6, 2007. Signed by Judge Emmet G. Sullivan on June 6, 2007. Associated Cases: 1:01-cv-02221-EGS-JMF et al. (lcegs1) (Entered: 06/06/2007)

06/06/2007

Set/Reset Deadlines: Responses due by 6/22/2007,Replies due by 7/6/2007. (clv, ) (Entered: 06/06/2007)

06/22/2007 176 RESPONSE to 170 Objections to Supplemental Report and Recommnedation filed by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01-cv02221-EGS et al.(McBarnette, Andrea). (Entered: 06/22/2007)

07/06/2007 178 RESPONSE re 176 Response to any document, Defendant's Reply to Plaintiff's Objections to the Magistrate Judge's Supplemental Report and Recommendations filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gebhardt, Joseph) (Entered: 07/06/2007)

07/06/2007 179 SURREPLY to re 166 Supplemental Report and Recommendation filed by DERRICK W. MACON. (jf, ) (Entered: 07/16/2007)

08/15/2007 180 ORDER accepting findings and adopting recommendations of Magistrate Judge Facciola's Reports; dismissing with prejudice certain claims; denying 172 Plaintiffs' Motion for Hearing; and directing parties to each file a recommendation for future proceedings by no later than September 14, 2007. Signed by Judge Emmet G. Sullivan on August 15, 2007. (lcegs1) (Entered: 08/15/2007)

08/16/2007

Set/Reset Deadlines: Status Report due by 9/14/2007. (clv, ) (Entered: 08/16/2007)

09/12/2007 181 NOTICE OF APPEAL as to 180 Order on Motion for Hearing, by Plaintiffs. Filing fee $ 455, receipt number 4616006827. Fee Status: Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit)(td, ) (Entered: 09/14/2007)

09/14/2007

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 181 Notice of Appeal (td, ) (Entered: 09/14/2007)

09/14/2007 182 MOTION to Stay by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Gebhardt, Joseph) (Entered: 09/14/2007)

09/14/2007 183 STATUS REPORT and Future Proceeding Recommendation by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01-cv-02221-EGS et al. (McBarnette, Andrea) (Entered: 09/14/2007)

09/14/2007 184 RESPONSE TO ORDER OF THE COURT re 180 Order on Motion for Hearing, Plaintiffs' Recommendations Regarding Future Proceedings filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1)(Gebhardt, Joseph) (Entered: 09/14/2007)

09/14/2007 185 NOTICE OF APPEAL as to 180 Order on Motion for Hearing, by DERRICK W. MACON. Filing fee $ 455, receipt number 4616006905. Fee Status: Fee Paid. Parties have been notified. (jf, ) (Entered: 09/17/2007)

09/14/2007 186 NOTICE OF APPEAL as to 180 Order on Motion for Hearing, by FRANK ADAMS. Filing fee $ 455, receipt number 4616006909. Fee Status: Fee Paid. Parties have been notified. (jf, ) (Entered: 09/17/2007)

09/17/2007

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 185 Notice of Appeal (jf, ) (Entered: 09/17/2007)

09/17/2007

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 186 Notice of Appeal (jf, ) (Entered: 09/17/2007)

09/19/2007

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 181 Notice of Appeal was modifed to reflect the corrected filing date of 09/12/07, due to clerical error. (jf, ) (Entered: 09/19/2007)

09/19/2007

Supplemental Record on Appeal transmitted to US Court of Appeals re 181 Notice of Appeal (jf, ) (Entered: 09/19/2007)

09/28/2007 187 Memorandum in opposition to re (182 in 1:01-cv-02221-EGS) MOTION to Stay filed by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01-cv02221-EGS et al.(McBarnette, Andrea) (Entered: 09/28/2007)

10/01/2007

USCA Case Number 07-5320 for 181 Notice of Appeal filed by MICHAEL COVINGTON, SHAFTON ADAMS, LARRY BENNETT, CLINTON BRADFORD, KENNETH BALDWIN, ALL PLAINTIFFS, J. CREEKMAR, STEPHEN CANNADY, ROY ANDERSON, TYRONE BROOKS, TRENTON BASS, DARYL BANKS, JOE CHRISTIAN, CLARENCE BLACK, REGINA BOLDEN-WHITAKER, TERESA BRADBY, SHIRLEY BLAND, LEWIN BLACKSTON, REGINALD COLLINS, LORETTA BULLOCK, DERRICK W.

MACON, LUATHUR COCHRAN, DAMON ADAMS, DORIAN COWARD, BRYAN CARTER, KAREN CLAY, FRANK ADAMS, DARRIN BLOXON, CHARLES COFFER, JR., SAPHONIA BUTLER, HELEN BOND-JONES, KAYLANA BYRD, SHERRY BAILEY, GRADY BRADFORD, SR., ROBERTS BRASWELL, JR., WILBERT BOOTH, JR., AMANDO BOWMAN, SYLVIA BRADLEY, MONTE CURTIS, EARL ALLEN, VERNON ALSTON, JR., RONALD CURTIS, TWANDA ALEXANDER-WISE, JOHN WILLIE CALDWELL, JR., ERIC BOGGS, SHARON BLACKMON-MALLOY, WILLIAM CLEVELAND, BUTLER ALPHONSO, MARSHA ANDERSON, CHARLES AKINS, PERNELL CLARK, GAYLE BOONE. (jf, ) (Entered: 10/02/2007)

10/01/2007

USCA Case Number 07-5322 for 186 Notice of Appeal filed by FRANK ADAMS. (jf, ) (Entered: 10/02/2007)

10/01/2007

USCA Case Number 07-5321 for 185 Notice of Appeal filed by DERRICK W. MACON. (jf, ) (Entered: 10/02/2007)

10/09/2007 188 NOTICE of Appearance by Lenore Cooper Garon on behalf of REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY (Garon, Lenore) (Entered: 10/09/2007)

10/09/2007 189 REPLY to opposition to motion re 182 MOTION to Stay filed by REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY. (Garon, Lenore) (Entered: 10/09/2007)

11/14/2007 190 ORDER in case 1:03-cv-02644-EGS; denying (182) plaintiffs' Motion to Stay in case 1:01-cv-02221-EGS. Signed by Judge Emmet G. Sullivan on November 14, 2007. Associated Cases: 1:01-cv-02221-EGS, 1:02-cv-01346-EGS, 1:02-cv01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491EGS, 1:06-cv-00653-EGS(lcegs1) (Entered: 11/14/2007)

01/02/2008 191 MOTION for Reconsideration re 180 Order on Motion for Hearing, by DERRICK W. MACON (jf, ) (Entered: 01/03/2008)

01/16/2008 192 Memorandum in opposition to re (191 in 1:01-cv-02221-EGS) MOTION for Reconsideration re (180) Order on Motion for Hearing, filed by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, THE UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01-cv-02221-EGS et al. (McBarnette, Andrea) (Entered: 01/16/2008)

02/07/2008

MINUTE ORDER. Upon consideration of Magistrate Judge Facciola's Report and Recommendation filed March 19, 2007 and his Supplemental Report and Recommendation filed May 15, 2007, this Court's Order dated August 15, 2007, the Plaintiffs' Recommendations Regarding Future Proceedings and the Defendant's Future Proceedings Recommendation, it appears to the Court that in order to avoid delay, confusion, and additional expense, the plaintiffs should file amended complaints setting forth their relevant claims. It is therefore ORDERED that plaintiffs' Amended Complaints are due by February 22, 2008, responsive pleadings shall be filed by no later than March 7, 2008, amended Meet and Confer Statements shall be filed by no later than March 21, 2008 and Initial Scheduling

Conferences shall be held on April 4, 2008 at 11:00 a.m. in Courtroom 24A. It is FURTHER ORDERED that any motions to consolidate cases as related are DENIED without prejudice pending the filing of Amended Complaints. Signed by Judge Emmet G. Sullivan on February 7, 2008. Associated Cases: 1:01-cv-02221EGS et al.(AS) (Entered: 02/07/2008)

02/08/2008

Set/Reset Deadlines/Hearings: Amended complaints due by 2/22/2008. Answer due by 3/7/2008. Meet & Confer Statement due by 3/21/2008. Initial Conference set for 4/4/2008 11:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 02/08/2008)

02/11/2008 193 MOTION Clarification of Court's Order of February 7, 2008 re Order,,,, directing filing of Amended Complaints by ALL PLAINTIFFS (Day, Charles) (Entered: 02/11/2008)

02/12/2008 194 NOTICE of Filing of Proposed Order to accompany Motion for Clarification filed 2-11-2008 re 193 MOTION Clarification of Court's Order of February 7, 2008 re Order,,,, directing filing of Amended Complaints, Order,,,, by ALL PLAINTIFFS (Day, Charles) Modified on 2/13/2008 (jf, ). (Entered: 02/12/2008)

02/13/2008

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 194 MOTION Proposed Order to accompany Motion for Clarification filed 2-11-2008 was modified. Counsel was instructed not to use the Motion(s) category to file Proposed Order(s). (jf, ) (Entered: 02/13/2008)

02/15/2008

MINUTE ORDER granting 193 Motion for Clarification of the Court's Order of February 7, 2008. Plaintiffs shall file a single Amended Complaint on behalf of all plaintiffs with remaining viable claims, setting forth in separate counts each plaintiff's claims. The Amended Complaint shall contain all previously-filed claims that remain viable, and only those claims that remain viable. Plaintiffs are cautioned that the Amended Complaint must adhere strictly to this Court's previous Orders and the Report and Recommendation and Supplemental Report issued by Magistrate Judge Facciola and adopted by Judge Sullivan in this case; to the extent the Amended Complaint attempts to incorporate new claims, or includes claims that have previously been dismissed by the Court, the Court will impose sanctions and/or dismiss the Amended Complaint forthwith. Signed by Judge Emmet G. Sullivan on February 15, 2008. Associated Cases: 1:01-cv02221-EGS, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(AS, ) (Entered: 02/15/2008)

02/25/2008 195 JOINT THIRD AMENDED COMPLAINT against UNITED STATES CAPITOL POLICE BOARD filed by ARNOLD FIELDS, DUVALL PHELPS, VERNIER RIGGS, SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY, FRANK ADAMS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(nmw, ) (Entered: 02/25/2008)

02/25/2008 196 MOTION for Extension of Time to File by ARNOLD FIELDS, DUVALL PHELPS, VERNIER RIGGS, SHAFTON ADAMS, REGINA BOLDENWHITAKER, SHARON BLACKMON-MALLOY, FRANK ADAMS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (Email to Clerk at 12:06

a.m.), # 3 Exhibit Ex. 2 (Email to Clerk at 12:26 a.m.))(Day, Charles) (Entered: 02/25/2008)

02/26/2008

MINUTE ORDER granting (196) Motion for Extension of Time to File the Joint Third Amended Complaint in case 1:01-cv-02221-EGS. The Joint Third Amended Complaint shall be deemed as timely filed. Signed by Judge Emmet G. Sullivan on February 26, 2008. Associated Cases: 1:01-cv-02221-EGS, 1:02-cv-01346EGS, 1:02-cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(AS, ) (Entered: 02/26/2008)

02/27/2008 197 NOTICE OF SUBSTITUTION OF COUNSEL by Harry B. Roback on behalf of UNITED STATES CAPITOL POLICE BOARD Substituting for attorney Andrea McBarnette (Roback, Harry) (Entered: 02/27/2008)

03/03/2008 198 MOTION to Strike Part of Joint Third Amended Complaint by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Memorandum in Support and Proposed Order)(Roback, Harry) (Entered: 03/03/2008)

03/03/2008 199 First MOTION for Extension of Time to File Answer by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 03/03/2008)

03/03/2008

MINUTE ORDER granting (199) Motion for Extension of Time to Answer Joint Third Amended Complaint. UNITED STATES CAPITOL POLICE BOARD answer due 3/21/2008. Signed by Judge Emmet G. Sullivan on March 3, 2008. Associated Cases: 1:01-cv-02221-EGS, 1:02-cv-01346-EGS, 1:02-cv-01859EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(AS) (Entered: 03/03/2008)

03/04/2008

Set/Reset Deadlines: Answer due by 3/21/2008. (clv, ) (Entered: 03/04/2008)

03/17/2008 200 Memorandum in opposition to re 198 MOTION to Strike Part of Joint Third Amended Complaint filed by ARNOLD FIELDS, DUVALL PHELPS, VERNIER RIGGS, SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY. (Attachments: # 1 Affidavit 1, # 2 Affidavit 2, # 3 Affidavit 3, # 4 Affidavit 4, # 5 Affidavit 5, # 6 Affidavit 6, # 7 Text of Proposed Order)(Day, Charles) (Entered: 03/17/2008)

03/18/2008 201 REPLY to opposition to motion re 198 MOTION to Strike Part of Joint Third Amended Complaint filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 03/18/2008)

03/19/2008 202 MOTION for Extension of Time to Respond to Joint Third Amended Complaint by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 03/19/2008)

03/19/2008

MINUTE ORDER granting 202 Defendant's Motion for Extension of Time to Respond to the Joint Third Amended Complaint. Defendant's response shall be filed by no later than March 26, 2008. Signed by Judge Emmet G. Sullivan on March 19, 2008. (AS) (Entered: 03/19/2008)

03/20/2008

Set/Reset Deadlines: Answer due by 3/26/2008. (clv, ) (Entered: 03/20/2008)

03/21/2008 203 MEMORANDUM by ARNOLD FIELDS, DUVALL PHELPS, VERNIER

RIGGS, SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY. (Day, Charles) (Entered: 03/21/2008)

03/24/2008 204 RESPONSE to Plaintiffs' 203 Memorandum on Meet and Confer filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Exhibits 1-3)(Roback, Harry) . (Entered: 03/24/2008)

03/26/2008 205 NOTICE of Appearance by James Quincy Butler on behalf of SHARON BLACKMON-MALLOY (Butler, James) (Entered: 03/26/2008)

03/26/2008 206 ANSWER to 195 Amended Complaint, by UNITED STATES CAPITOL POLICE BOARD. Related document: 195 Amended Complaint, filed by SHAFTON ADAMS, FRANK ADAMS, DUVALL PHELPS, VERNIER RIGGS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY, ARNOLD FIELDS.(Roback, Harry) (Entered: 03/26/2008)

03/26/2008 207 MOTION for Summary Judgment by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Memorandum In Support, # 2 Statement of Facts, # 3 Exhibit Exhibits 1-4, # 4 Exhibit Exhibits 5-9, # 5 Exhibit Exhibits 10-16 (Ex. 16 Under Seal), # 6 Exhibit Exhibits 17-24 (Exs. 22 & 24 Under Seal))(Roback, Harry) (Entered: 03/26/2008)

03/27/2008 208 NOTICE of Appearance by James Quincy Butler on behalf of REGINA BOLDEN-WHITAKER (Butler, James) (Entered: 03/27/2008)

03/27/2008 209 NOTICE of Appearance by James Quincy Butler on behalf of VERNIER RIGGS (Butler, James) (Entered: 03/27/2008)

03/27/2008 210 NOTICE of Appearance by James Quincy Butler on behalf of ARNOLD FIELDS (Butler, James) (Entered: 03/27/2008)

03/27/2008 212 MOTION to File Exhibits 16, 22, and 24 under seal by UNITED STATES CAPITOL POLICE BOARD. (jf, ) (Entered: 04/01/2008)

03/28/2008 211 Consent MOTION for Extension of Time to File Response/Reply as to 207 MOTION for Summary Judgment by DUVALL PHELPS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 03/28/2008)

03/28/2008

MINUTE ORDER granting 211 Consent Motion for Extension of Time to File Response/Reply re 207 MOTION for Summary Judgment. Responses due by 4/28/2008. Signed by Judge Emmet G. Sullivan on March 28, 2008. (AS) (Entered: 03/28/2008)

03/31/2008

Set/Reset Deadlines: Response to Motion for Summary Judgment due by 4/28/2008. (clv, ) (Entered: 03/31/2008)

04/01/2008

MINUTE ORDER granting 212 Motion for Leave to File Exhibits under Seal. Signed by Judge Emmet G. Sullivan on April 1, 2008. (lcegs2) (Entered: 04/01/2008)

04/03/2008

MINUTE ORDER. The Court is currently concluding a jury trial and, as a result, must continue the Initial Scheduling Conference previously scheduled for 11:00 a.m. to 2:00 p.m. on Friday, April 4, 2008. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on April 3, 2008. (AS) (Entered: 04/03/2008)

04/04/2008

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 4/4/2008. (Court Reporter JACKIE SULLIVAN.) (clv, ) (Entered: 04/04/2008)

04/07/2008 213 NOTICE of Addresses Being FIled Under Seal by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 04/07/2008)

04/07/2008

MINUTE ORDER. Pursuant to the Status Conference held on April 4, 2008, the Court directs former counsel for plaintiffs Bradford and Adams to provide the Court, under seal and by no later than April 9, 2008, with the addresses for plaintiffs Bradford and Adams. Signed by Judge Emmet G. Sullivan on April 7, 2008. (AS) (Entered: 04/07/2008)

04/07/2008

Set/Reset Deadlines: addresses of plaintiffs Bradford and Adams due by 4/9/2008. (clv, ) (Entered: 04/07/2008)

04/09/2008 214 MOTION for Extension of Time to File by DUVALL PHELPS (Day, Charles) (Entered: 04/09/2008)

04/10/2008 215 NOTICE of Filing Under Seal by DUVALL PHELPS (Day, Charles) (Entered: 04/10/2008)

04/10/2008

MINUTE ORDER granting 214 Motion for Extension of Time to File. Signed by Judge Emmet G. Sullivan on April 10, 2008. (AS, ) (Entered: 04/10/2008)

04/17/2008 216 ORDER granting defendant's motion to file exhibits 16, 22 and 24 under seal.. Signed by Judge Emmet G. Sullivan on 4/16/08. (clv, ) (Entered: 04/17/2008)

04/17/2008 217 Consent MOTION for Extension of Time to File Response/Reply as to 207 MOTION for Summary Judgment by FRANK ADAMS (Attachments: # 1 Text of Proposed Order)(Johnson, Nathaniel) (Entered: 04/17/2008)

04/17/2008

MINUTE ORDER granting 217 Unopposed Motion for Extension of Time to File Response/Reply re 207 MOTION for Summary Judgment. Responses due by 4/28/2008. Signed by Judge Emmet G. Sullivan on April 17, 2008. (AS, ) (Entered: 04/17/2008)

04/17/2008 218 ORDER TO SHOW CAUSE why Officer Adams' and Officer Bradford's claims should not be dismissed with prejudice. Show Cause Response due by 5/15/2008. Signed by Judge Emmet G. Sullivan on April 17, 2008. (AS, ) (Entered: 04/17/2008)

04/17/2008 219 MOTION for Entry of Final Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 04/17/2008)

04/18/2008

Set/Reset Deadlines: Responses due by 4/28/2008 (clv, ) (Entered: 04/18/2008)

04/18/2008

Set/Reset Deadlines: Response to Show Cause due by 5/15/2008. (clv, ) (Entered: 04/18/2008)

04/21/2008 220 Second MOTION for Extension of Time to Respond to Defendant's Motion for Summary Judgment by ARNOLD FIELDS, VERNIER RIGGS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY (Butler, James) (Entered: 04/21/2008)

04/21/2008

MINUTE ORDER granting 220 Unopposed Motion for Extension of Time to Respond to Defendant's Motion for Summary Judgment. Response due May 28,

2008. Signed by Judge Emmet G. Sullivan on April 21, 2008. (AS) (Entered: 04/21/2008)

04/21/2008

Set/Reset Deadlines: Response to Motion for Summary Judgment due by 5/28/2008. (clv, ) (Entered: 04/21/2008)

04/24/2008 221 Consent MOTION for Extension of Time to File Response/Reply as to 207 MOTION for Summary Judgment by DUVALL PHELPS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 04/24/2008)

04/24/2008

MINUTE ORDER granting 221 Joint Consent Motion for Extension of Time to File Response/Reply re 207 MOTION for Summary Judgment. Responses due by 5/28/2008. Signed by Judge Emmet G. Sullivan on April 24, 2008. (AS) (Entered: 04/24/2008)

04/25/2008

Set/Reset Deadlines: Response to Motion for Summary Judgment due by 5/28/2008. (clv, ) (Entered: 04/25/2008)

05/05/2008 222 STATUS REPORT by REGINA BOLDEN-WHITAKER. (Day, Charles) (Entered: 05/05/2008)

05/05/2008 223 FINAL ORDER granting 219 Motion for Entry of Final Judgment. The Court hereby issues a Final Appealable Order pursuant to Federal Rule of Civil Procedure 54(b) dismissing all claims listed in Appendix B and Appendix C of the the March 19, 2007, Report and Recommendation of Magistrate Judge Facciola. Signed by Judge Emmet G. Sullivan on 5/5/08. (dot, ) (Entered: 05/06/2008)

05/22/2008 224 STIPULATION Joint for Extension of Time by ARNOLD FIELDS, VERNIER RIGGS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY. (Butler, James) (Entered: 05/22/2008)

05/22/2008

MINUTE ORDER approving plaintiffs' stipulated request for extension of time to respond to defendant's motion for summary judgment. Plaintiffs' response shall be filed by no later than June 18, 2008. Signed by Judge Emmet G. Sullivan on May 22, 2008. (AS) (Entered: 05/22/2008)

05/23/2008

Set/Reset Deadlines: Response to Motion for Summary Judgment due by 6/18/2008. (clv, ) (Entered: 05/23/2008)

06/11/2008 225 NOTICE of Appearance by Daniel K. Gebhardt on behalf of DUVALL PHELPS (Gebhardt, Daniel) (Entered: 06/11/2008)

06/12/2008 226 NOTICE OF WITHDRAWAL OF APPEARANCE as to ARNOLD FIELDS, VERNIER RIGGS, SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY, FRANK ADAMS. Attorney Charles W. Day, Jr terminated. (Day, Charles) (Entered: 06/12/2008)

06/12/2008 227 NOTICE OF WITHDRAWAL OF APPEARANCE as to SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY, FRANK ADAMS. Attorney Joseph D. Gebhardt terminated. (Gebhardt, Joseph) (Entered: 06/12/2008)

06/12/2008 228 NOTICE OF WITHDRAWAL OF APPEARANCE as to REGINA BOLDENWHITAKER, SHARON BLACKMON-MALLOY. Attorney Lenore Cooper Garon terminated. (Garon, Lenore) (Entered: 06/12/2008)

06/18/2008 229 Memorandum in opposition to re 207 MOTION for Summary Judgment filed by ARNOLD FIELDS, VERNIER RIGGS, REGINA BOLDEN-WHITAKER, SHARON BLACKMON-MALLOY. (Attachments: # 1 Exhibit exhibit1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Butler, James) (Entered: 06/18/2008)

06/18/2008 230 Memorandum in opposition to re 207 MOTION for Summary Judgment filed by DUVALL PHELPS. (Attachments: # 1 Affidavit of Duvall Phelps, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Proposed Rule 56(f) Discovery Requests, # 18 Text of Proposed Order)(Day, Charles) (Entered: 06/18/2008)

06/18/2008 231 MOTION for Discovery Pursuant to Rule 56(f) by DUVALL PHELPS (Attachments: # 1 Affidavit of Duvall Phelps, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Plaintiff's Proposed Rule 56(f) Discovery Requests, # 18 Text of Proposed Order)(Day, Charles) (Entered: 06/18/2008)

06/19/2008 232 MOTION for Extension of Time to File Out of Time by FRANK ADAMS (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(Johnson, Nathaniel) (Entered: 06/19/2008)

06/19/2008 233 Memorandum in opposition to re (207 in 1:01-cv-02221-EGS) MOTION for Summary Judgment filed by FRANK ADAMS. (Attachments: # 1 Exhibit 1Performance Evaluation, # 2 Exhibit 2-Plaintiff's Letter to Chief Varey, # 3 Exhibit 3-Candidate's List for Promotion, # 4 Exhibit 4-Rule of Conduct, # 5 Exhibit 5-Page from Incidental Book, # 6 Exhibit 6-Plaintiff's Letter to Chief Varey, # 7 Exhibit 7-Sgt. Weaver's Letter to Inspec. Parisi)Associated Cases: 1:01cv-02221-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653EGS(Johnson, Nathaniel) (Entered: 06/19/2008)

06/20/2008 234 NOTICE of Consent by FRANK ADAMS re 233 Memorandum in Opposition,, 232 MOTION for Extension of Time to File Out of Time (Johnson, Nathaniel) (Entered: 06/20/2008)

06/26/2008 235 Consent MOTION for Extension of Time to File Response/Reply In Support of Motion for Summary Judgment by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 06/26/2008)

06/27/2008

MINUTE ORDER granting 235 Motion for Extension of Time to File Response/Reply. Replies due by 7/11/2008. Signed by Judge Emmet G. Sullivan on June 27, 2008. (AS) (Entered: 06/27/2008)

06/27/2008

Set/Reset Deadlines: Replies due by 7/11/2008. (clv, ) (Entered: 06/27/2008)

07/10/2008 236 Consent MOTION for Extension of Time to File Response/Reply by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 07/10/2008)

07/14/2008

MINUTe ORDER granting 236 Consent Motion for Extension of Time to File Response/Reply. Replies due by 7/15/2008. Signed by Judge Emmet G. Sullivan

on July 14, 2008. (AS, ) (Entered: 07/14/2008)

07/15/2008 237 REPLY to opposition to motion re 207 MOTION for Summary Judgment by Shafton Adams filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 07/15/2008)

07/15/2008 238 REPLY to opposition to motion re 207 MOTION for Summary Judgment by Duvall Phelps filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 07/15/2008)

07/15/2008 239 REPLY to opposition to motion re 207 MOTION for Summary Judgment against Frank Adams filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 07/15/2008)

07/15/2008 240 REPLY to opposition to motion re 207 MOTION for Summary Judgment against Blackmon-Malloy, Bolden-Whitaker, Fields, and Riggs filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 07/15/2008)

07/15/2008 241 Memorandum in opposition to re 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f) filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 07/15/2008)

07/16/2008

Set/Reset Deadlines: Replies due by 7/15/2008. (clv, ) (Entered: 07/16/2008)

07/24/2008 242 Consent MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f) by DUVALL PHELPS (Attachments: # 1 Text of Proposed Order) (Day, Charles) (Entered: 07/24/2008)

08/05/2008

MINUTE ORDER granting 242 Motion for Extension of Time to File Response/Reply re 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f). Replies due by 8/11/2008. Signed by Judge Emmet G. Sullivan on August 5, 2008. (AS, ) (Entered: 08/05/2008)

08/06/2008

Set/Reset Deadlines: Replies due by 8/11/2008. (clv, ) (Entered: 08/06/2008)

08/11/2008 243 Consent MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f) by DUVALL PHELPS (Attachments: # 1 Text of Proposed Order) (Day, Charles) (Entered: 08/11/2008)

08/12/2008

MINUTE ORDER granting 243 Plaintiff Duvall Phelps' Consent Motion for Extension of Time to File Reply re 231 Motion for Discovery Pursuant to Rule 56(f). Reply due by 8/15/2008. Signed by Judge Emmet G. Sullivan on August 12, 2008.(lcegs1) (Entered: 08/12/2008)

08/13/2008

Set/Reset Deadlines: Replies due by 8/15/2008. (clv, ) (Entered: 08/13/2008)

08/15/2008 244 Consent MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f) by DUVALL PHELPS (Attachments: # 1 Text of Proposed Order) (Day, Charles) (Entered: 08/15/2008)

08/15/2008

MINUTE ORDER granting 244 Plaintiff Duvall Phelps' Consent Motion for Extension of Time to File Reply re 231 Motion for Discovery Pursuant to Rule 56(f). Reply due by 8/18/2008. Signed by Judge Emmet G. Sullivan on August 15,

2008. (lcegs1) (Entered: 08/15/2008)

08/15/2008

Set/Reset Deadlines: Replies due by 8/18/2008. (clv, ) (Entered: 08/15/2008)

08/18/2008 245 REPLY to opposition to motion re 231 MOTION for Discovery Pursuant to Rule 56(f) MOTION for Discovery Pursuant to Rule 56(f) filed by DUVALL PHELPS. (Attachments: # 1 Exhibit 1)(Day, Charles) (Entered: 08/18/2008)

10/01/2009 246 MANDATE of USCA (certified copy) as to 181 Notice of Appeal filed by MICHAEL COVINGTON, SHAFTON ADAMS, LARRY BENNETT, CLINTON BRADFORD, KENNETH BALDWIN, ALL PLAINTIFFS, J. CREEKMAR, STEPHEN CANNADY, ROY ANDERSON, TYRONE BROOKS, TRENTON BASS, DARYL BANKS, JOE CHRISTIAN, CLARENCE BLACK, REGINA BOLDEN-WHITAKER, TERESA BRADBY, SHIRLEY BLAND, LEWIN BLACKSTON, REGINALD COLLINS, LORETTA BULLOCK, DERRICK W. MACON, LUATHUR COCHRAN, DAMON ADAMS, DORIAN COWARD, BRYAN CARTER, KAREN CLAY, FRANK ADAMS, DARRIN BLOXON, CHARLES COFFER, JR., SAPHONIA BUTLER, HELEN BOND-JONES, KAYLANA BYRD, SHERRY BAILEY, GRADY BRADFORD, SR., ROBERTS BRASWELL, JR., WILBERT BOOTH, JR., AMANDO BOWMAN, SYLVIA BRADLEY, MONTE CURTIS, EARL ALLEN, VERNON ALSTON, JR., RONALD CURTIS, TWANDA ALEXANDER-WISE, JOHN WILLIE CALDWELL, JR., ERIC BOGGS, SHARON BLACKMON-MALLOY, WILLIAM CLEVELAND, BUTLER ALPHONSO, MARSHA ANDERSON, CHARLES AKINS, PERNELL CLARK, GAYLE BOONE ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in these causes is affirmed in part, reversed in part, and the cases remanded. USCA Case Number 07-5320. (mmh, ) (Entered: 10/02/2009)

10/07/2009

MINUTE ORDER. On October 1, 2009, the D.C. Circuit issued a mandate in this case directing the Court to "determine which officers made timely requests under sections 1402 and 1403 [of the Congressional Accountability Act of 1995] and provided notices of their claims upon request, and which officers received end of mediation notices and made timely elections pursuant to section 1404." 575 F.3d 699, 714 n.5 (D.C. Cir. 2009). In view of this mandate, the parties are directed to file a joint status report, including a recommendation for further proceedings, by no later than November 4, 2009. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on October 7, 2009. (lcegs1) (Entered: 10/07/2009)

10/07/2009

Set/Reset Deadlines: Status Report due by 11/4/2009 (clv, ) (Entered: 10/07/2009)

11/03/2009 247 NOTICE of Appearance by Charles W. Day, Jr on behalf of all plaintiffs (Attachments: # 1 Exhibit 1 (Blackmon-Malloy Appellants), # 2 Exhibit Ex. 1A, # 3 Exhibit 2)(Day, Charles) (Entered: 11/03/2009)

11/03/2009 248 NOTICE of Appearance by Nathaniel D. Johnson on behalf of FRANK ADAMS (Attachments: # 1 Supplement)(Johnson, Nathaniel) (Entered: 11/03/2009)

11/04/2009 249 NOTICE of Appearance by Lenore Cooper Garon on behalf of all plaintiffs (Attachments: # 1 Exhibit 1 - List of Plaintiffs/Appellants, # 2 Exhibit 1A - List of Deceased Officers, # 3 Exhibit 2 - Officers Represented by Johnson)(Garon,

Lenore) (Entered: 11/04/2009)

11/04/2009 250 NOTICE of Appearance by Valencia R. Rainey on behalf of all plaintiffs (Attachments: # 1 List of Plaintiffs/Appellants, # 2 Deceased Officers Represented By Gebhardt & Associates, # 3 Officers Represented by Nathaniel Johnson)(Rainey, Valencia) (Entered: 11/04/2009)

11/04/2009 251 STATUS REPORT of the United States Capitol Police Board by UNITED STATES CAPITOL POLICE BOARD, UNITED STATES CAPITOL POLICE DEPARTMENT, UNITED STATES CAPITOL POLICE. Associated Cases: 1:01cv-02221-EGS, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(Roback, Harry) (Entered: 11/04/2009)

11/04/2009 252 STATUS REPORT by SHARON BLACKMON-MALLOY. (Attachments: # 1 Exhibit 1 (Draft Joint Status Report), # 2 Text of Proposed Order)(Day, Charles) (Entered: 11/04/2009)

11/05/2009 253 NOTICE of Defendant's Response to Plaintiffs' 252 Status Report by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit Exhibit 1) (Roback, Harry) . (Entered: 11/05/2009)

11/09/2009 254 STATUS REPORT (Amended) by SHARON BLACKMON-MALLOY. (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 11/09/2009)

11/19/2009 255 MOTION to Amend/Correct and Clarify the record in regards to representation by FRANK ADAMS. (jf, ) (Entered: 11/23/2009)

12/03/2009 256 MOTION Assignment to U.S. Magistrate Judge re 255 MOTION to Amend/Correct by ALL PLAINTIFFS (Johnson, Nathaniel) (Entered: 12/03/2009)

12/04/2009

MINUTE ORDER. The Court, sua sponte, schedules a status hearing on December 15, 2009 at 2:00 p.m. in Courtroom 24A to address the parties' status reports. Signed by Judge Emmet G. Sullivan on December 4, 2009. (lcegs1) (Entered: 12/04/2009)

12/06/2009 257 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney Richard Lloyd Thompson, II terminated. (Johnson, Nathaniel) (Entered: 12/06/2009)

12/07/2009

Set/Reset Hearings: Status Conference set for 12/15/2009 02:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 12/07/2009)

12/10/2009 258 NOTICE of Appearance by Donna Williams Rucker on behalf of DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BONDJONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN,

TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS (Rucker, Donna) (Entered: 12/10/2009)

12/11/2009 259 Consent MOTION to Continue Status Conference by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDERWISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS (Attachments: # 1 Text of Proposed Order)(Rucker, Donna) (Entered: 12/11/2009)

12/11/2009

MINUTE ORDER granting 259 plaintiffs' consent motion to reschedule the December 15, 2009 status hearing. The status hearing scheduled for December 15, 2009 is rescheduled for January 28, 2010 at 2:30 p.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on December 11, 2009. (lcegs1) (Entered: 12/11/2009)

12/11/2009

Set/Reset Hearings: Status Conference set for 1/28/2010 02:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 12/11/2009)

01/04/2010 260 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Exhibit)(Garon, Lenore) (Entered: 01/04/2010)

01/06/2010 261 NOTICE OF FILING -- ERRATA AND CORRECTED CHART by ALL PLAINTIFFS re 260 Notice (Other) (Attachments: # 1 Errata)(Garon, Lenore) (Entered: 01/06/2010)

01/26/2010

MINUTE ORDER. Due to the Court's calendar it has now become necessary to move the status hearing scheduled for January 28, 2010 to March 5, 2010 at 2:30 p.m. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on January 26, 2010. (lcegs4) (Entered: 01/26/2010)

01/26/2010

Set/Reset Hearings: Status Conference set for 3/5/2010 02:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/26/2010)

01/28/2010 262 MOTION to Strike the Appearance of Plaintiffs' Counsel by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibits 1-4)(Roback, Harry) (Entered: 01/28/2010)

02/03/2010 263 MOTION for Extension of Time to File Response/Reply as to (262 in 1:01-cv02221-EGS) MOTION to Strike the Appearance of Plaintiffs' Counsel and Motion for Continuance of Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS et al.(Rainey, Valencia) (Entered: 02/03/2010)

02/04/2010 264 Memorandum in opposition to re 263 MOTION for Extension of Time to File Response/Reply as to (262 in 1:01-cv-02221-EGS) MOTION to Strike the Appearance of Plaintiffs' Counsel and Motion for Continuance of Status Conference MOTION for Extension of Time to File Response/Reply as to (262 in 1:01-cv-02221-EGS) MOTION to Strike the Appearance of Plaintiffs' Counsel and Motion for Continuance of Status Conference filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 02/04/2010)

02/05/2010 265 REPLY re 264 Memorandum in Opposition,, /Defendant's Response To Plaintiffs' Motion To Extend filed by ALL PLAINTIFFS. (Rainey, Valencia) (Entered: 02/05/2010)

02/11/2010

MINUTE ORDER denying 263 Plaintiffs' Motion for Extension of Time to Respond to Motion to Strike the Appearance of Plaintiffs' Counsel and Motion for Continuance of Status Conference. Plaintiffs are directed to respond directly to the arguments raised by the government in its 262 Motion to Strike by no later than February 19, 2010. Defendant's reply is due by no later than February 26, 2010. Plaintiffs' request to continue the status conference in order to file reports with the Court which the Court has not requested or directed is likewise denied. The status conference remains scheduled for March 5, 2010. Signed by Judge Emmet G. Sullivan on February 11, 2010.(lcegs4) (Entered: 02/11/2010)

02/12/2010

Set/Reset Deadlines/Hearings: Responses due by 2/19/2010 Replies due by 2/26/2010. Status Conference set for 3/5/2010 02:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 02/12/2010)

02/19/2010 266 Memorandum in opposition to re 262 MOTION to Strike the Appearance of Plaintiffs' Counsel filed by ALL PLAINTIFFS. (Attachments: # 1 Declaration of Sharon Blackmon-Malloy, # 2 Declaration of Nathaniel D. Johnson, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 02/19/2010)

02/26/2010 267 REPLY to opposition to motion re 262 MOTION to Strike the Appearance of Plaintiffs' Counsel filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 02/26/2010)

02/26/2010 268 MOTION to Certify Class (Renewed) by ALL PLAINTIFFS (Attachments: # 1 Supplement 2004 Motion for Class Certification, # 2 Supplement Addendum to Motion for Class Certification (Renewed), # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 02/26/2010)

03/01/2010 269 NOTICE of Filing of Existing Complaints After Appeal by ALL PLAINTIFFS (Attachments: # 1 Exhibit Joint Second Amended Class Action Complaint, # 2 Exhibit Class Action Complaint Challenging Retaliation, # 3 Exhibit Class Action

Complaint)(Day, Charles) (Entered: 03/01/2010)

03/04/2010 270 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Declaration of Sharon Blackmon-Malloy, # 2 Exhibit Letter from Office of Compliance 4-13-01, # 3 Exhibit Letter from Office of Compliance 4-20-01, # 4 Declaration of Charles Jerome Ware, # 5 Exhibit Chart re Consolidated Cases, # 6 Exhibit Certificates of Official Record from Office of Compliance)(Garon, Lenore) (Entered: 03/04/2010)

03/05/2010

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 3/5/2010. Order to be presented. (Court Reporter CATALINA KERR.) (clv, ) (Entered: 03/05/2010)

03/08/2010 271 ORDER. As set forth in open court during the 3/5/10 status conference, the attached order sets forth proceedings by which the Court will hear and determine the subject matter jurisdiction issues before the Court following the D.C. Circuit's October 1, 2009 mandate. As also discussed in the status conference, the attached order resolves several other outstanding motions. The parties are directed to read the attached order in its entirety. Signed by Judge Emmet G. Sullivan on March 8, 2010. (lcegs4) (Entered: 03/08/2010)

03/08/2010

Set/Reset Deadlines: complaint due by 5/10/2010. Defendant's Motion due by 7/12/2010. Plaintiff's responses due by 10/12/2010 Defendant's replies due by 11/12/2010. joint plaintiffs and defendants brief due by 4/8/2010 (clv, ) (Entered: 03/08/2010)

03/08/2010 272 CASE REFERRED to Magistrate Judge John M. Facciola for 255 MOTION to Amend/Correct and Clarify the record in regards to representation by FRANK ADAMS. (kb) (Entered: 03/11/2010)

03/11/2010

Set/Reset Hearings: Settlement Conference for mediation between plaintiff Frank Adams and plaintiffs' counsel set for 3/30/2010 10:00 AM in Chambers before Magistrate Judge John M. Facciola. Only plaintiff Frank Adams and plaintiffs' counsel are scheduled and required to appear. The Clerk of the Court shall make a copy of this order to be served by first class mail on Mr. Frank Adams at 5817 South Marwood Blvd., Upper Marlboro, MD 20772. SO ORDERED. Associated Cases: 1:01-cv-02221-EGS-JMF et al.(lcjmf1) (Entered: 03/11/2010)

03/12/2010 273 ORDER re referral to Judge Facciola for resolution of 255 . Signed by Magistrate Judge John M. Facciola on 3/12/10. (SP, ) (Entered: 03/12/2010)

03/25/2010 274 Mail Returned as undeliverable. sent to DERRICK MACON; Type of Document Returned: Order 271 ;. (clv, ) (Entered: 03/25/2010)

03/30/2010

Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Settlement Conference held on 3/30/2010. (lcjmf1) (Entered: 03/30/2010)

04/08/2010 275 RESPONSE TO ORDER OF THE COURT re 271 Order on Motion for Reconsideration, Order on Motion to Strike, Order on Motion for Summary Judgment, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief,, Order on Motion to Certify Class,,,,,,,,,,,,,, filed by ALL PLAINTIFFS. (Rucker, Donna) (Entered: 04/08/2010)

04/12/2010

MINUTE ORDER. The Court is under the impression that attorney Nathaniel

Johnson will continue to represent Mr. Adams; accordingly, 255 Motion to Amend/Clarify Record in Regards to Representation is hereby DENIED as moot. In light of Mr. Adams' continued representation by counsel, he need not be individually served with further pleadings. Signed by Judge Emmet G. Sullivan on April 12, 2010. (lcegs4) (Entered: 04/12/2010)
05/10/2010 276 NOTICE of Appearance by Audrey Elizabeth Lambert on behalf of UNITED STATES CAPITOL POLICE BOARD (Lambert, Audrey) (Entered: 05/10/2010)
05/10/2010 277 SECOND AMENDED COMPLAINT against UNITED STATES CAPITOL POLICE BOARD filed by DERRICK W. MACON.(tr) (Entered: 05/11/2010)
05/10/2010 278 FOURTH AMENDED CLASS ACTION COMPLAINT against UNITED STATES CAPITOL POLICE BOARD filed by ARNOLD FIELDS, SHAFTON ADAMS, REGINA BOLDEN-WHITAKER, DUVALL PHELPS, VERNIER RIGGS, FRANK ADAMS, SHARON BLACKMON-MALLOY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (znmw, ) (Entered: 05/11/2010)
05/12/2010 279 MOTION to Compel Counseling Documents from the Office of Compliance by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit A Subpoena, # 2 Exhibit B Letter to Plaintiffs, # 3 Exhibit C Letter from Plaintiffs, # 4 Exhibit D Letter from OOC, # 5 Exhibit E Transcript, # 6 Exhibit F Boggs Request for Counseling, # 7 Exhibit G Bull Request for Counseling, # 8 Exhibit H Letter to OOC, # 9 Certificate of Service)(Weinstein, Laurie) (Entered: 05/12/2010)
05/18/2010 280 CASE MANAGEMENT ORDER FOR PRO SE PLAINTIFF DERRICK MACON. As more fully set forth in the accompanying Order, the Court DECLINES to consolidate Cases 08-0003 and 09-592 with Case No. 01-2221, but ORDERS that the three cases follow the same schedule to address the threshold issue of exhaustion in accordance with the D.C. Circuit's mandate. Accordingly, the Court ORDERS that the parties in Case Nos. 08-0003 and 09-952 address any and all exhaustion issues in those cases in accordance with the schedule set forth in the Court's 271 Case Management Order in Case No. 01-2221. All pleadings in Cases 08-0003 and 09-592 shall be filed in those dockets and not in Case 012221. It is further ORDERED that all pending motions in Cases 08-0003 and 09582 be DENIED without prejudice pending resolution of the exhaustion issue. Finally, because the pleading filed by Mr. Macon 277 in Case 01-2221 cannot be construed as an Amended Complaint, the Court declines to accept it as such and ORDERS that the parties move forward to brief any exhaustion issues in Mr. Macon's preexisting claims in Cases 01-2221, 08-0003 and 09-592. The parties are directed to read the attached Order in its entirety. Signed by Judge Emmet G. Sullivan on May 18, 2010. (lcegs4) (Entered: 05/18/2010)
05/26/2010 281 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Exhibit 12)(Day, Charles) (Entered: 05/26/2010)
05/26/2010 282 NOTICE of Appearance by Peter Ames Eveleth on behalf of OFFICE OF COMPLIANCE (znmw, ) (Entered: 05/27/2010)
05/26/2010 283 NOTICE of Appearance by John D. Uelmen on behalf of OFFICE OF

COMPLIANCE (znmw, ) (Entered: 05/27/2010)

05/26/2010 284 Memorandum in opposition to re 279 MOTION to Compel Counseling Documents from the Office of Compliance filed by OFFICE OF COMPLIANCE. (Attachments: # 1 Declaration of Teresa M. James, # 2 Exhibit A, # 3 Exhibit B, # 4 Certificate of Service, # 5 Text of Proposed Order)(znmw, ) (Entered: 05/27/2010)

06/07/2010 285 REPLY to opposition to motion re 279 MOTION to Compel Counseling Documents from the Office of Compliance filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit I Mediation Agreement, # 2 Exhibit J Letter to OOC)(Weinstein, Laurie) (Entered: 06/07/2010)

06/23/2010

MINUTE ORDER. Pending before the Court is 279 Defendant's motion to compel counseling documents from the Office of Compliance. Upon consideration of the motion, the opposition, and the reply thereto, and for substantially the reasons set forth by the Defendant, the motion is GRANTED. In particular, the Court finds that the materials referenced are relevant to, and may indeed be highly probative of, this Court's determination of which plaintiffs exhausted their administrative remedies as directed by the D.C. Circuit. See Blackmon-Malloy v. U.S. Capitol Police Board, 575 F.3d 699, 714 n.5 (D.C. Cir. 2009). In addition, the Court finds that while counseling under the Congressional Accountability Act is confidential, see 2 U.S.C. § 1416, the requested documents are not protected by an evidentiary privilege in this case. See, e.g.,U.S. v. Nixon, 418 U.S. 683, 710 (1974); Pearson v. Miller, 211 F.3d 57, 67-68 (3rd Cir. 2000); Molina v. Lexmark Int'l, Case No. 08-4796, 2008 WL 4447678 (C.D. Cal, Sept. 30, 2008). While the Court is sensitive to the confidentiality concerns raised by the Office of Compliance, these concerns can be accommodated by a protective order which will allow as much relevant material to be discovered as possible, while preventing unnecessary intrusions into the legitimate confidentiality interests that might be harmed by the release of the material sought. See Pearson, 211 F.3d at 65. Accordingly, Defendant's motion is GRANTED subject to a mutually agreeable protective order, which shall be filed with the Court by no later than July 7, 2010. It is further ORDERED the Office of Compliance shall file a certification with the Court that all requested materials have been provided to the defendant by no later than July 7, 2010. It is so ordered.. Signed by Judge Emmet G. Sullivan on June 23, 2010. (lcegs4, ) (Entered: 06/23/2010)

06/23/2010

MINUTE ORDER. In light of the Court's June 23, 2010 minute order granting 279 defendant's motion to compel, the court sua sponte extends the briefing schedule for defendant's motion to dismiss set forth in 271 the Court's Order of March 8, 2010. Defendant shall file its motion to dismiss by no later than August 12, 2010. Plaintiffs may take discovery from August 12, 2010 until October 12, 2010, and shall file their opposition by no later than November 12, 2010. Defendant shall file its reply by no later than December 10, 2010. The Court's Order of March 8, 2010 remains in effect in all other respects. Signed by Judge Emmet G. Sullivan on June 23, 2010. (lcegs4) (Entered: 06/23/2010)

06/24/2010

Set/Reset Deadlines: Protective Order/certification due by 7/7/2010. (clv, ) (Entered: 06/24/2010)

06/24/2010

Set/Reset Deadlines: Discovery from 8/12/2010 until 10/12/2010. Dispositive

Motions due by 8/12/2010. Response to Dispositive Motions due by 11/12/2010. Reply to Dispositive Motions due by 12/10/2010. (clv, ) (Entered: 06/24/2010)

07/02/2010 286 MOTION for Protective Order by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit A Proposed Protective Order, # 2 Exhibit B Email from Weinstein to OOC, # 3 Exhibit OOC proposed Order, # 4 Exhibit CPB Response with Proposed Order, # 5 Exhibit OOC objection to CPB proposal) (Weinstein, Laurie). Added MOTION to Expedite on 7/6/2010 (znmw, ). (Entered: 07/02/2010)

07/06/2010

VACATED PURSUANT TO THE MINIUTE ORDER ENTERED 7/7/10 MINUTE ORDER. Pending before the Court is 286 Defendant's motion for Entry of Protective Order and Request for Expedited Consideration. It is hereby ORDERED that the Office of Compliance shall file its response to the motion by no later than 4:00 p.m. on July 8, 2010, and the parties shall file their replies, if any, by no later than 4:00 p.m. on July 12, 2010. The portion of the Court's June 23, 2010 order requiring disclosure of the requested materials is hereby stayed pending final resolution of this issue. Signed by Judge Emmet G. Sullivan on July 6, 2010. (lcegs4) Modified on 7/13/2010 (clv, ). (Entered: 07/06/2010)

07/06/2010 287 NOTICE of Proposed Order Stipulated Protective Order by OFFICE OF COMPLIANCE re 286 MOTION for Protective Order MOTION to Expedite (Attachments: # 1 Text of Proposed Order)(Uelmen, John) (Entered: 07/06/2010)

07/06/2010

Set/Reset Deadlines: Responses due by 7/8/2010 by 4:00 p.m.; Replies due by 7/12/2010 by 4:00 p.m. (clv, ) (Entered: 07/06/2010)

07/07/2010

MINUTE ORDER approving 287 Stipulated Protective Order. The parties have informed the Court that, in light of their stipulation regarding the contents of the protective order, 286 Defendant's Motion for Entry of a Protective Order has been withdrawn. Accordingly, the Court hereby VACATES its minute order of July 6, 2010 setting an expedited briefing schedule regarding Docket No. 286 . It is so ordered. Signed by Judge Emmet G. Sullivan on July 7, 2010. (lcegs4) (Entered: 07/07/2010)

07/07/2010 288 NOTICE Certification of Production of Counseling Documents by OFFICE OF COMPLIANCE (Attachments: # 1 Exhibit Exhibit A Subpoena Worksheet) (Uelmen, John) (Entered: 07/07/2010)

07/28/2010 289 MINUTE ORDER: It is hereby ORDERED that the Clerk of the Court should docket the attached redacted letter from Plaintiffs' counsel, Mr. Johnson. The letter is hereby deemed a motion to withdraw as counsel to plaintiff Frank Adams. The Clerk shall docket it as such. It is hereby further ORDERED that this order and Johnson's motion shall be served on counsel for all parties, via ECF, and to Mr. Frank Adams, via First Class Mail, at 5817 South Marwood Blvd., Upper Marlboro, MD 20772. SO ORDERED. Signed by Magistrate Judge John M. Facciola on 07/28/2010. (lcjmf1 ) (Entered: 07/28/2010)

07/28/2010 290 WITHDRAWN PURSUANT TO NOTICE FILED 9/3/2010..... MOTION (Letter) by Nathaniel D. Johnson, Esquire, to Withdraw as Attorney. (ldc, ) Modified on 9/7/2010 (znmw, ). (Entered: 07/28/2010)

07/28/2010 291 ENTERED IN ERROR.....MOTION to as to Nathaniel D. Johnson to Withdraw as

Attorney by FRANK ADAMS (td, ) Modified on 7/28/2010 (td, ). (Entered: 07/28/2010)

07/28/2010

NOTICE OF CORRECTED DOCKET ENTRY: re 291 MOTION to Withdraw as Attorney was entered in error. Duplicate entry of 290 (td, ) (Entered: 07/28/2010)

07/28/2010

MINUTE ORDER. In March 2010, this Court referred a dispute between plaintiff Frank Adams and attorney Nathaniel Johnson as to Mr. Johnson's continuing representation of Mr. Adams to Magistrate Judge Facciola for resolution. In April 2010, Mr. Johnson and Mr. Adams indicated that they had resolved their dispute; accordingly, this Court terminated the referral to Judge Facciola. However, in light of Mr. Johnson's newly filed 290 motion to withdraw as attorney for Frank Adams, it appears that the dispute is ongoing. Accordingly, the Court re-refers this matter - specifically, 290 Nathaniel Johnson's motion to withdraw - to Magistrate Judge Facciola for prompt resolution. Mr. Johnson and Mr. Adams are directed to file an appropriate pleading informing the court whether Mr. Adams is represented by counsel immediately upon resolution of this issue. Signed by Judge Emmet G. Sullivan on July 28, 2010. (lcegs4) (Entered: 07/28/2010)

07/28/2010 292 MOTION To Limit the Scope of Defendant's Rule 12(b)(1) Motion by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Exhibit Letter of 7-14-2010, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 07/28/2010)

07/28/2010 293 CASE RE-REFERRED to Magistrate Judge John M. Facciola for Prompt Resolution of 290 MOTION (Letter) by Nathaniel D. Johnson, Esquire, to Withdraw as Attorney. (kb) (Entered: 07/29/2010)

08/02/2010 294 ORDER re referral to Judge Facciola for the motion to withdraw. Signed by Magistrate Judge John M. Facciola on 8/2/10. (SP, ) (Entered: 08/02/2010)

08/05/2010

MINUTE ORDER. The Court has received 292 plaintiffs' motion to limit the scope of defendant's Rule 12(b)(1) motion. In an effort to resolve this motion before defendant's motion to dismiss is due on August 12, 2010, it is ORDERED that the defendant file its opposition, if any, to plaintiffs' motion by no later than August 6, 2010 at 5:00 p.m. Plaintiffs shall file their reply, if any, by no later than August 9, 2010 at 9:00 a.m. The parties are advised that no extensions of time will be granted. Signed by Judge Emmet G. Sullivan on August 5, 2010. (lcegs4) (Entered: 08/05/2010)

08/06/2010

Set/Reset Deadlines: Responses due by 5:00 P.M. on 8/6/2010; Replies due by 9:00 A.M. on 8/9/2010. (clv, ) (Entered: 08/06/2010)

08/06/2010 295 Memorandum in opposition to re 292 MOTION To Limit the Scope of Defendant's Rule 12(b)(1) Motion filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Defendant's Exhibit 1)(Roback, Harry) (Entered: 08/06/2010)

08/09/2010 296 REPLY to opposition to motion re 292 MOTION To Limit the Scope of Defendant's Rule 12(b)(1) Motion filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Garon, Lenore) (Entered: 08/09/2010)

08/09/2010

Set/Reset Hearings: Motion Hearing on Mr. Johnson's Motion to Withdraw as Attorney as to Mr. Adams set for 9/9/2010 02:00 PM in Courtroom 6 before Magistrate Judge John M. Facciola. The Clerk of the Court shall serve a copy of

this order on Mr. Adams via First Class Mail at 5817 South Marwood Blvd., Upper Marlboro, MD 20772. (lcjmf1) (Entered: 08/09/2010)

08/09/2010

MINUTE ORDER. Pending before the Court is 292 plaintiffs' motion to limit the scope of defendant's Rule 12(b)(1) motion. Upon careful consideration of the motion, opposition and reply thereto, plaintiffs' motion is DENIED WITHOUT PREJUDICE. Plaintiffs may raise any relevant arguments in their opposition to the motion to dismiss, pursuant to 271 the Court's order of March 8, 2010 and the Court's minute order of June 23, 2010 extending the briefing schedule. Signed by Judge Emmet G. Sullivan on August 9, 2010. (lcegs4) (Entered: 08/09/2010)

08/12/2010 297 Consent MOTION for Leave to File Excess Pages and to file memorandum of law and exhibits in support of defendant's motion to dismiss temporarily under seal by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 08/12/2010)

08/12/2010

MINUTE ORDER. Upon consideration of 297 the Defendant's Consent Motion for Leave To Temporarily File Its Motion To Dismiss Under Seal And To Exceed Page Limitations, it is hereby ORDERED that the Defendant's Motion is GRANTED. IT IS FURTHER ORDERED that the Clerk's Office shall file the Defendant's memorandum of law and the accompanying exhibits under seal in order to permit plaintiffs the opportunity to review the materials so they can determine, and attempt to reach agreement with defendant, which materials should not be placed on the public record. IT IS FURTHER ORDERED that the parties file a joint status report within 30 days regarding which, if any, materials submitted as part of Defendant's Motion to Dismiss should remain under seal. Signed by Judge Emmet G. Sullivan on August 12, 2010. (lcegs4) (Entered: 08/12/2010)

08/12/2010 298 MOTION to Dismiss for Lack of Jurisdiction by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 08/12/2010)

08/12/2010 299 SEALED Memorandum of Law and the accompanying Exhibits filed by UNITED STATES CAPITOL POLICE BOARD. re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Frederick M. Herrera, # 2 Declaration of Gretchen E. DeMar, # 3 Declaration of Jan Jones 8/11/10, # 4 Declaration of Thomas Madigan, # 5 Declaration of Toby Hyman, # 6 Exhibit 1 through 41, # 7 Exhibit to Herrera Decl. 1-25, # 8 Exhibit to Herrera Decl. 26-46, # 9 Exhibit to Herrera Decl. 47-57) (zjf, ) (Entered: 08/12/2010)

08/18/2010

MINUTE ORDER. The Court, sua sponte, ORDERS the defendant to immediately serve copies of its 298 motion to dismiss and 299 memorandum in support thereof upon pro se plaintiff Derrick Macon and upon plaintiff Frank Adams, whose representational status is unresolved. Before serving either plaintiff, defendant shall redact all factual materials which are arguably "strictly confidential" as that term has been elucidated in Doc. No. 287 , with the exception of materials that relate to Mr. Macon's or, in a separate redacted motion/memorandum, Mr. Adams', claims. Defendant shall file the redacted pleadings under seal, along with certificates of service. Signed by Judge Emmet G. Sullivan on August 18, 2010. (lcegs4) (Entered: 08/18/2010)

08/18/2010 300 ORDER notifying plaintiff Frank Adams of filing of 298 and 299 , defendant's motion to dismiss. The Clerk of the Court is directed to serve a copy of this order on Mr. Adams via First Class Mail at 5817 South Marwood Blvd., Upper Marlboro, MD 20772. Signed by Judge Emmet G. Sullivan on August 18, 2010. (lcegs4) (Entered: 08/18/2010)

08/18/2010 301 ORDER notifying plaintiff Derrick Macon of filing of 298 and 299 , defendant's motion to dismiss. The Clerk of the Court is directed to serve a copy of this order on Mr. Macon at 12401 Weldon Manor Lane, Upper Marlboro, MD 20772. Signed by Judge Emmet G. Sullivan on August 18, 2010. (lcegs4) (Entered: 08/18/2010)

08/18/2010

Set/Reset Deadlines: Plaintiff Derrick Macon Response due by 11/12/2010 (clv, ) (Entered: 08/18/2010)

08/18/2010

Set/Reset Deadlines: Plaintiff Frank Adams Response due by 11/12/2010 (clv, ) (Entered: 08/18/2010)

08/19/2010 302 NOTICE OF FILING REDACTED DOCUMENT 298 Motion to Dismiss and attachments to Derrick Macon and Frank Adams by UNITED STATES CAPITOL POLICE BOARD (The original PDF Document contained privacy information and was restricted pursuant to the E-Government Act.) (Weinstein, Laurie) Modified on 8/20/2010 to add link (jf, ). (Entered: 08/19/2010)

08/20/2010 304 SEALED MEMORANDUM IN SUPPORT OF (F. ADAMS) re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. (This document is SEALED and only available to authorized persons.) (zjf, ) (Entered: 08/23/2010)

08/23/2010 303 SEALED MEMORANDUM IN SUPPORT OF (D. MACON) re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. (This document is SEALED and only available to authorized persons.) (zjf, ) Modified on 8/23/2010 to correct docket text (zjf, ). (Entered: 08/23/2010)

08/25/2010 305 Consent MOTION Leave to Serve Office of Compliance with Defendant's Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 08/25/2010)

08/26/2010

MINUTE ORDER treating 305 the motion for leave to serve the Office of Compliance with defendant's motion to dismiss as opposed by plaintiff Derrick W. Macon and plaintiff Frank Adams, and granting the motion over the objections. It is further ORDERED that the Office of Compliance shall treat the defendant's memorandum in support of its motion to dismiss and the accompanying exhibits as confidential pending further order of the Court.(lcegs2) (Entered: 08/26/2010)

09/03/2010 306 NOTICE OF WITHDRAWAL OF MOTION by FRANK ADAMS re 290 MOTION to Withdraw as Attorney, Order,,, 294 Order, 293 Case Referred to Magistrate Judge, Notice of Corrected Docket Entry (Johnson, Nathaniel) (Entered: 09/03/2010)

09/03/2010

MINUTE ORDER re 290 MOTION to Withdraw as Attorney: In light of plaintiff Adams's filing of 306 NOTICE OF WITHDRAWAL OF MOTION by FRANK ADAMS re 290 MOTION to Withdraw as Attorney, the hearing scheduled for 9/9/2010 at 2:00PM in Courtroom 6 before Magistrate Judge John M. Facciola is

hereby VACATED. SO ORDERED. Signed by Magistrate Judge John M. Facciola on 09/03/2010. (lcjmf1) (Entered: 09/03/2010)

09/03/2010

MINUTE ORDER. The court has received attorney Nathaniel Johnson's 306 notice withdrawing 290 motion to withdraw as attorney for plaintiff Frank Adams. In light of Mr. Adams' continued representation by counsel, he need not be individually served with further pleadings. Signed by Judge Emmet G. Sullivan on September 3, 2010. (lcegs4) (Entered: 09/03/2010)

09/13/2010 307 STATUS REPORT (Joint) by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 09/13/2010)

09/13/2010

MINUTE ORDER. Pending before the Court is 307 joint status report, in which the parties agree that defendant's motion to dismiss and its accompanying exhibits should be unsealed with the exception of a very small amount of information, but represent that non-party Office of Compliance opposes the unsealing. In the past, the Office of Compliance has asserted that pre-complaint counseling undertaken by the plaintiffs in this case is confidential, and accordingly any documents relating to the counseling process should not be disclosed. However, the Court notes that in the Office of Compliance's previous filing in this case - Doc. No. 284 , Office of Compliance's Opposition to Motion to Compel - the Office of Compliance explained that confidentiality of the counseling information is necessary primarily to protect the employees who use the counseling process. See Doc. No. 284 at 5, 14-16. In this case, the plaintiffs are those employees, and they have agreed that almost all of the information pertaining to them should be available on the public record. In light of plaintiffs' agreement that the information should be unsealed, and in light of the strong presumption in favor of public access to judicial records, see, e.g., Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."), the Court will treat the motion as opposed and GRANT it over objection. It is accordingly ORDERED that the Capitol Police Board shall be GRANTED leave to file its motion to dismiss the Fourth Amended Complaint on the public record in accordance with the redactions identified in the parties' joint status report dated September 13, 2010. Signed by Judge Emmet G. Sullivan on September 13, 2010. (lcegs4) (Entered: 09/13/2010)

09/22/2010 308 NOTICE of Filing Public Version of Defendant's Memorandum and Exhibits In Support of 298 Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Memorandum in Support Memorandum In Support of Defendant's Motion to Dismiss (Public Version), # 2 Affidavit T. Hyman, # 3 Affidavit J. Jones, # 4 Affidavit G. DeMar, # 5 Affidavit T. Madigan, # 6 Affidavit F. Herrera, # 7 Exhibit Herrera Declaration Exs. 1-25, # 8 Exhibit Herrera Declaration Exs. 26-46, # 9 Exhibit Herrera Declaration Exs. 47-57)(Roback, Harry) Modified on 9/23/2010 to add docket text (jf, ). (Entered: 09/22/2010)

09/22/2010 309 NOTICE of Filing Defendant's Exhibits 1-41 In Support of 298 308 Motion to Dismiss (Public Versions) by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit Defendant's Exhibits In Support of Motion to Dismiss) (Roback, Harry) Modified on 9/23/2010 to add text (jf, ). (Entered: 09/22/2010)

10/01/2010 310 NOTICE Of Filing Amended Memorandum In Support Of re 298 Motion To

Dismiss The Fourth Amended Complaint by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Amended Memorandum In Support Of Motion To Dismiss The Fourth Amended Complaint (Public Version))(Roback, Harry) Modified on 10/4/2010 to add link (jf, ). (Entered: 10/01/2010)

10/01/2010 311 MOTION to Strike 298 MOTION to Dismiss for Lack of Jurisdiction, 299 Sealed Document,, by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 10/01/2010)

10/03/2010 312 Memorandum in opposition to re 311 MOTION to Strike 298 MOTION to Dismiss for Lack of Jurisdiction, 299 Sealed Document,, (Opposition to Plaintiffs' Request for Expedited Briefing) filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Exhibits 1-4)(Roback, Harry) (Entered: 10/03/2010)

10/05/2010

MINUTE ORDER. The Court, sua sponte, denies without prejudice 311 plaintiffs' motion to strike portions of 298 defendant's motion to dismiss. Plaintiffs may raise any relevant arguments in their opposition to the motion to dismiss, including but not limited to argument that portions of the motion to dismiss exceed the limitations set forth by 271 this Court's order of March 8, 2010. Signed by Judge Emmet G. Sullivan on October 5, 2010. (lcegs4) (Entered: 10/05/2010)

10/06/2010 313 NOTICE of Proposed Order by FRANK ADAMS, SHAFTON ADAMS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS (znmw, ) (Entered: 10/06/2010)

10/06/2010 314 ORDER modifying the discovery and briefing schedule for defendant's motion to dismiss. Discovery shall close by no later than October 26, 2010; plaintiffs' opposition to defendant's motion to dismiss shall be filed by no later than December 3, 2010; defendant's reply shall be filed by no later than January 7, 2011. Signed by Judge Emmet G. Sullivan on October 6, 2010. (lcegs4) (Entered: 10/06/2010)

10/06/2010

Set/Reset Deadlines: Discovery due by 10/26/2010. plaintiff's Response to Dispositive Motions due by 12/3/2010. Defendant's Reply to Dispositive Motions due by 1/7/2011. (clv, ) (Entered: 10/06/2010)

10/08/2010 315 NOTICE re 298 Motion to Dismiss Of Filing Second Amended Memorandum In Support Of Defendant's Motion To Dismiss The Fourth Amended Complaint (PUBLIC VERSION) by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit Second Amended Memorandum In Support Of Defendant's Motion to Dismiss the Fourth Amended Complaint (PUBLIC VERSION))(Roback, Harry) Modified to add link on 10/12/2010 (znmw, ). (Entered: 10/08/2010)

10/19/2010 316 MOTION to Compel Defendant's Response to Plaintiffs' First Set of Interrogatories by SHARON BLACKMON-MALLOY (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Text of Proposed Order)(Rucker, Donna) (Entered: 10/19/2010)

11/03/2010 317 Memorandum in opposition to re 316 MOTION to Compel Defendant's Response to Plaintiffs' First Set of Interrogatories filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit 1 (Plaintiffs' Discovery Requests), #

2 Exhibit 2 (Defendant's Responses to Plaintiffs' First Set of Interrogatories)) (Lambert, Audrey) (Entered: 11/03/2010)

11/12/2010 318 Memorandum in opposition to re 298 MOTION to Dismiss for Lack of Jurisdiction filed by DERRICK W. MACON. (Attachments: # 1 Declaration, # 2 Exhibit)(jf, ) (Entered: 11/15/2010)

11/15/2010 319 REPLY to opposition to motion re 316 MOTION to Compel Defendant's Response to Plaintiffs' First Set of Interrogatories filed by SHARON BLACKMON-MALLOY. (Attachments: # 1 Text of Proposed Order, # 2 Plaintiffs' Deficiency Notice Letter)(Garon, Lenore) (Entered: 11/15/2010)

11/22/2010 320 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Second Amended Motion to Dismiss the Fourth Amended Complaint by SHARON BLACKMON-MALLOY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 11/22/2010)

11/23/2010

ORDER granting 320 Motion for Extension of Time to File Response/Reply to Defendant's Second Amended Motion to Dismiss the Fourth Amended Complaint. Plaintiffs' opposition shall be filed by no later than January 4, 2011 and defendant's reply shall be filed by no later than February 4, 2011. Signed by Judge Emmet G. Sullivan on November 23, 2010. (lcegs4) (Entered: 11/23/2010)

11/23/2010

Set/Reset Deadlines: Responses due by 1/4/2011 Replies due by 2/4/2011. (clv, ) (Entered: 11/23/2010)

11/29/2010 321 MEMORANDUM OPINION & ORDER denying 316 Motion to Compel. Signed by Judge Emmet G. Sullivan on November 29, 2010. (lcegs4) (Entered: 11/29/2010)

12/15/2010 322 NOTICE OF SUBSTITUTION OF COUNSEL by Benjamin George Birkhill on behalf of UNITED STATES CAPITOL POLICE BOARD Substituting for attorney Audrey E. Lambert (Birkhill, Benjamin) (Entered: 12/15/2010)

12/23/2010 323 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Second Amended Motion to Dismiss the Fourth Amended Complaint by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 12/23/2010)

12/23/2010

MINUTE ORDER granting 323 plaintiffs' consent motion to respond to defendant's second amended motion to dismiss, Plaintiffs shall file their opposition by no later than January 21, 2011; defendant shall file its reply by no later than February 22, 2011. Signed by Judge Emmet G. Sullivan on December 23, 2010. (lcegs4) (Entered: 12/23/2010)

12/23/2010

Set/Reset Deadlines: Responses due by 1/21/2011 Replies due by 2/22/2011. (clv, ) (Entered: 12/23/2010)

01/20/2011 324 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Second Amended Motion to Dismiss the Fourth Amended Complaint by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 01/20/2011)

01/20/2011

MINUTE ORDER. The Court, sua sponte, schedules a status hearing on 324 plaintiffs' most recent motion for an extension of time for Friday, January 21,

2011 at 4:30 pm in Courtroom 24A. Signed by Judge Emmet G. Sullivan on January 20, 2011. (lcegs4) (Entered: 01/20/2011)

01/21/2011

Set/Reset Hearings: Status Conference set for 1/21/2011 04:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/21/2011)

01/21/2011

MINUTE ORDER. The status hearing scheduled for today, Janaury 21, 2011 at 4:30 pm in Courtroom 24A will take place 15 minutes later than scheduled -- at 4:45 pm on January 21, 20ll. PLEASE NOTE THE TIME CHANGE. Signed by Judge Emmet G. Sullivan on January 21, 2011. (lcegs4) (Entered: 01/21/2011)

01/21/2011

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 1/21/2011. Order to be presented. (Court Reporter SCOTT WALLACE.) (clv, ) (Entered: 01/21/2011)

01/24/2011

MINUTE ORDER. Pursuant to the defendant's representations during the status conference on January 21, 2011 that mediation would not be productive at this time, the Court will not refer the parties to mediation. However, at pro se plaintiff Derrick Macon's request the Court will appoint an attorney to represent Mr. Macon for the limited purpose of settlement. Plaintiffs' motion for a further extension of time to respond to defendant's motion to dismiss is GRANTED. Plaintiffs shall file their opposition to the motion to dismiss by no later than February 15, 2011; defendant shall file its reply by no later than March 17, 2011. Signed by Judge Emmet G. Sullivan on January 24, 2011. (lcegs4) (Entered: 01/24/2011)

01/24/2011

Set/Reset Deadlines: Response to Dispositive Motions due by 2/15/2011. Reply to Dispositive Motions due by 3/17/2011. (clv, ) (Entered: 01/24/2011)

02/01/2011 325 ORDER declining to appoint settlement counsel for pro se plaintiff Derrick Macon at this time. Signed by Judge Emmet G. Sullivan on February 1, 2011. (lcegs4) (Entered: 02/01/2011)

02/11/2011 326 NOTICE of Filing Exhibits in Support of 298 Motion to Dismiss Fourth Amended Complaint by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit Herrera Declaration Exhibits 58-60, 62-65, # 2 Exhibit Herrera Declaration Exhibit 61, # 3 Exhibit Amended Herrera and Hyman Declarations, # 4 Exhibit Amended Declaration of Madigan)(Roback, Harry) Modified on 2/14/2011 to docket link (jf, ). (Entered: 02/11/2011)

02/11/2011 327 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 02/11/2011)

02/14/2011

MINUTE ORDER granting 327 plaintiff's consent motion for extension of time to respond to motion to dismiss. Plaintiffs shall file their opposition by no later than February 28, 2011; defendant shall file its reply by no later than March 30, 2011. Signed by Judge Emmet G. Sullivan on February 14, 2011. (lcegs4) (Entered: 02/14/2011)

02/14/2011

Set/Reset Deadlines: Response to Dispositive Motions due by 2/28/2011. Reply to Dispositive Motions due by 3/30/2011. (clv, ) (Entered: 02/14/2011)

02/28/2011 328 Consent MOTION for Leave to File Excess Pages by ALL PLAINTIFFS

(Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 02/28/2011)

02/28/2011 329 Memorandum in opposition to re 298 MOTION to Dismiss for Lack of Jurisdiction filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 02/28/2011)

02/28/2011 334 ERRATA Notice of filing of declaration by DERRICK W. MACON 318 Memorandum in Opposition filed by DERRICK W. MACON. (td, ) (Entered: 03/03/2011)

03/01/2011 330 MOTION for Extension of Time to File Response/Reply Nunc Pro Tunc by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 03/01/2011)

03/01/2011 331 Memorandum in opposition to re 298 MOTION to Dismiss for Lack of Jurisdiction filed by ALL PLAINTIFFS. (Attachments: # 1 Appendices, # 2 Exhibits 1 - 6, # 3 Exhibits 8-9, # 4 Exhibits 10 - 12, # 5 Exhibits 13 - 17, # 6 Exhibits 18 - 27, # 7 Exhibits 28 - 31)(Garon, Lenore) (Entered: 03/01/2011)

03/01/2011 332 ERRATA to Memorandum in Opposition to Defendant's Motion to Dismiss the Fourth Amended Complaint by ALL PLAINTIFFS 331 Memorandum in Opposition, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibits 32 - 45, # 2 Exhibits 46 - 66, # 3 Exhibits 67 - 71, # 4 Exhibits 72 - 80, # 5 Exhibits 81 - 88, # 6 Exhibit 89)(Garon, Lenore) (Entered: 03/01/2011)

03/01/2011 333 ERRATA II to Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss the Fourth Amended Complaint by ALL PLAINTIFFS 331 Memorandum in Opposition, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 7, # 2 Exhibits 91 - 95)(Garon, Lenore) (Entered: 03/01/2011)

03/01/2011

MINUTE ORDER granting, nunc pro tunc, 328 consent motion for leave to file excess pages and 330 motion for one day extension of time to file response to motion to dismiss for lack of jurisdiction. Signed by Judge Emmet G. Sullivan on March 1, 2011. (lcegs4) (Entered: 03/01/2011)

03/08/2011 335 TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on 3/5/10; Page Numbers: 1-20. Date of Issuance:3/8/11. Court Reporter/Transcriber Catalina Kerr, Telephone number 202-354-3258, Court Reporter Email Address : catykerr@msn.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 3/29/2011. Redacted Transcript Deadline set for 4/8/2011. Release of Transcript Restriction set for 6/6/2011.(Kerr, Catalina) (Entered: 03/08/2011)

03/25/2011 336 MOTION for Discovery /Deposition of Charles Ware and MOTION to

enlargement of time until thirty days to file a Reply by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Exhibit A [Proposed Subpoena, # 2 Exhibit B Attachment to Proposed Subpoena, # 3 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS et al.(Weinstein, Laurie). Added MOTION for Extension of Time to on 3/28/2011 (jf, ). (Entered: 03/25/2011)

03/29/2011 337 NOTICE of Authorization by UNITED STATES CAPITOL POLICE BOARD re 336 MOTION for Discovery /Deposition of Charles Ware MOTION for Extension of Time to (Attachments: # 1 Exhibit Authroization Letter)(Weinstein, Laurie) (Entered: 03/29/2011)

03/29/2011 338 NOTICE OF FILING by SHARON BLACKMON-MALLOY (Rainey, Valencia) (Entered: 03/29/2011)

03/30/2011

MINUTE ORDER. Defendant has filed 336 motion for leave to depose Charles Ware. In its motion, defendant states that plaintiffs consent to defendant's request for an extension of time to file its reply in support of its motion to dismiss until after the Court resolves defendant's motion to depose Mr. Ware. Accordingly, defendant's request for an extension of time to file its reply brief in support of its motion to dismiss is GRANTED. Defendant need not file its reply in support of its motion to dismiss until the Court has resolved 336 defendant's motion for leave to depose Charles Ware. Signed by Judge Emmet G. Sullivan on March 30, 2011. (lcegs4) (Entered: 03/30/2011)

04/11/2011 339 Memorandum in opposition to re 336 MOTION for Discovery /Deposition of Charles Ware MOTION for Extension of Time to filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Garon, Lenore) (Entered: 04/11/2011)

04/21/2011 340 REPLY to opposition to motion re 336 MOTION for Discovery /Deposition of Charles Ware MOTION for Extension of Time to filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 04/21/2011)

05/17/2011

MINUTE ORDER. Consistent with this Court's policy regarding the referral of matters to magistrate judges, and in view of this Court's previous referral of matters in this action to Magistrate Judge John M. Facciola, the Court hereby rerefers this action to Magistrate Judge Facciola for resolution of 336 defendant's motion for discovery/deposition of Charles Ware. Signed by Judge Emmet G. Sullivan on May 17, 2011. (lcegs4) (Entered: 05/17/2011)

05/17/2011 341 CASE RE-REFERRED to Magistrate Judge John M. Facciola for Resolution of Motion 336 . (ls, ) (Entered: 05/18/2011)

05/31/2011 342 ORDER re referral to Judge Facciola for resolution of 336 . Signed by Magistrate Judge John M. Facciola on 5/31/11. (SP, ) (Entered: 05/31/2011)

06/02/2011 343 NOTICE of Filing of Additional Exhibit to Joint Fourth Amended Complaint by ALL PLAINTIFFS re 278 Amended Complaint, (Attachments: # 1 Exhibit 13 to Joint Fourth Amended Complaint)(Garon, Lenore) (Entered: 06/02/2011)

06/02/2011 344 SUPPLEMENTAL MEMORANDUM to re 331 Memorandum in Opposition, 329 Memorandum in Opposition to Defendant's Motion to Dismiss the Fourth Amended Complaint filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 06/02/2011)

06/02/2011 345 NOTICE of Filing of Revised or Additional Appendices and Exhibits by ALL PLAINTIFFS re 331 Memorandum in Opposition, (Attachments: # 1 Revised Appendices I and II, # 2 List of Exhibits, # 3 Revised Exhibit 8, # 4 Revised Exhibit 27, # 5 Revised Exhibit 35, # 6 Revised Exhibit 68, # 7 Revised Exhibit 70, # 8 Revised Exhibit 73, # 9 Exhibit 90, # 10 Exhibit 96, # 11 Exhibit 97, # 12 Exhibit 98, # 13 Exhibit 99, # 14 Exhibit 100, # 15 Exhibit 101, # 16 Exhibit 102, # 17 Exhibit 103)(Garon, Lenore) (Entered: 06/02/2011)
06/06/2011 346 MOTION for Hearing by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, OFFICE OF COMPLIANCE, DUVALL PHELPS, VERNIER RIGGS re 329 Memorandum in Opposition (Rucker, Donna) Modified on 6/7/2011 to correct docket text (jf, ). (Entered: 06/06/2011)
06/15/2011 347 MOTION for Hearing by SHARON BLACKMON-MALLOY Associated Cases: 1:01-cv-02221-EGS -JMF et al.(Rucker, Donna) Modified event title on 6/16/2011 (znmw, ). (Entered: 06/15/2011)
07/08/2011 348 MEMORANDUM ORDER granting 336 Motion for Discovery; denying 347 Motion for Hearing. See attached document. Signed by Magistrate Judge John M. Facciola on 07/08/2011. (lcjmf1) (Entered: 07/08/2011)
07/15/2011 349 NOTICE Plaintiff's Praecipe Regarding Notification of Privilege by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BONDJONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND,

LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS re 348 Order on Motion for Discovery, Order on Motion for Hearing (Rucker, Donna) (Entered: 07/15/2011)

07/15/2011 350 NOTICE Praecipe Regarding Notification of No Documents Received Per July 8, 2011 Order by DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDENWHITAKER, HELEN BOND-JONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS re 348 Order on Motion for Discovery, Order on Motion for Hearing (Rucker, Donna) (Entered: 07/15/2011)

07/27/2011

MINUTE ORDER. On March 26, 2011, defendant moved for discovery/deposition of Charles Ware and further moved to enlarge the time to file its reply in support of its Motion to Dismiss until 30 days after the deposition of Mr. Ware. On March 30, 2011, the Court granted defendant's motion for an extension of time to file its reply until after resolution of the motion for discovery. Shortly thereafter, the Court referred defendants' motion for discovery to Magistrate Judge Facciola. On July 7, 2011, Judge Facciola granted defendant's motion to depose Mr. Ware, but did not address defendant's request to file its reply no later than 30 days after Mr. Ware's deposition. Accordingly, the Court enters the following scheduling order. Defendant shall depose Mr. Ware by no later than August 31, 2011, and shall file its reply in support of its motion to dismiss by no later than September 30, 2011. Signed by Judge Emmet G. Sullivan on July 27, 2011. (lcegs4) (Entered: 07/27/2011)

07/27/2011

Set/Reset Deadlines: Mr. Ware to be deposed by 8/31/11; Reply to Dispositive Motions due by 9/30/2011. (clv, ) (Entered: 07/27/2011)

09/28/2011 351 Consent MOTION for Extension of Time to File Response/Reply in Support of Defendant's Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 09/28/2011)

09/30/2011

MINUTE ORDER granting 351 consent motion for extension of time to file reply in support of motion to dismiss. Defendant's reply shall be filed by no later than October 28, 2011. Signed by Judge Emmet G. Sullivan on September 30, 2011.

(lcegs4) (Entered: 09/30/2011)

10/04/2011

Set/Reset Deadlines: Reply to Dispositive Motions due by 10/28/2011. Associated Cases: 1:01-cv-02221-EGS-JMF et al.(clv, ) (Entered: 10/04/2011)

10/24/2011 352 Consent MOTION for Extension of Time to File Response/Reply in Support of Defendant's Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 10/24/2011)

10/26/2011

MINUTE ORDER granting 352 defendant's consent motion for an extension of time to file its reply in support of motion to dismiss. Defendant's reply shall be filed by no later than November 16, 2011. Signed by Judge Emmet G. Sullivan on October 26, 2011. (lcegs4) (Entered: 10/26/2011)

10/26/2011

Set/Reset Deadlines: Reply to Dispositive Motions due by 11/16/2011. (clv, ) (Entered: 10/26/2011)

11/04/2011 353 NOTICE of Filing of Amendment by ALL PLAINTIFFS re 331 Memorandum in Opposition, (Attachments: # 1 Amendment to Opposition to Motion to Dismiss, # 2 List of Additional Exhibits, # 3 Exhibit 104, # 4 Exhibit 105, # 5 Exhibit 106, # 6 Exhibit 107, # 7 Exhibit 108, # 8 Exhibit 109, # 9 Exhibit 110, # 10 Exhibit 111, # 11 Exhibit 112)(Garon, Lenore) (Entered: 11/04/2011)

11/08/2011 354 MOTION to Dismiss Certain Individual Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 11/08/2011)

11/14/2011

MINUTE ORDER. Pending before the Court is 354 plaintiffs' unopposed motion to voluntarily dismiss, with prejudice, 19 plaintiffs from this action. Given the very large number of individual plaintiffs in this case and its lengthy history, which has included questions about individual plaintiffs' representation by counsel, it is hereby ORDERED that plaintiffs' counsel confirm to the Court, forthwith, via an ECF filing, that they represent the 19 referenced plaintiffs and are authorized, therefore, to move for their voluntary dismissal from the case. Signed by Judge Emmet G. Sullivan on November 14, 2011. (lcegs4) (Entered: 11/14/2011)

11/15/2011 355 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 11/15/2011)

11/16/2011

MINUTE ORDER granting 355 defendant's consent motion for extension of time to file reply in support of motion to dismiss. Defendant shall file its reply by no later than December 2, 2011. Signed by Judge Emmet G. Sullivan on November 16, 2011. (lcegs4) (Entered: 11/16/2011)

11/17/2011

Set/Reset Deadlines: Reply to Dispositive Motions due by 12/2/2011. (clv, ) (Entered: 11/17/2011)

11/22/2011 356 NOTICE Plaintiffs' Response to Minute Order of November 14, 2011 by ALL PLAINTIFFS (Attachments: # 1 Exhibit A)(Garon, Lenore) (Entered: 11/22/2011)

11/23/2011

NOTICE OF ERROR re 356 Notice (Other); emailed to lenore@lenorecgaron.com, cc'd 25 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. DO NOT REFILE - Please choose proper event for filing or contact the ECF Helpline @ 354-3190 (jf, )

(Entered: 11/23/2011)

11/29/2011

MINUTE ORDER. On November 8, 2011, plaintiffs filed an 354 unopposed motion to voluntarily dismiss, with prejudice, 19 plaintiffs from this action. By minute order dated November 14, the Court ordered plaintiffs' counsel to confirm that they represented the plaintiffs at issue and had plaintiffs' authorization to move for dismissal. On November 22, 2011, plaintiffs' counsel provided such confirmation, see Doc. No. 365 Notice of Plaintiffs' Response to Court's Minute Order of November 14, 2011. Accordingly, the Court GRANTS 354 plaintiffs' motion to dismiss certain individual plaintiffs, with prejudice, from this action. SO ORDERED. Signed by Judge Emmet G. Sullivan on November 29, 2011. (lcegs4) (Entered: 11/29/2011)

12/01/2011 357 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 12/01/2011)

12/02/2011

MINUTE ORDER granting 357 Consent Motion for Extension of Time to File Reply. Defendant shall file their reply in support of their motion to dismiss by no later than December 16, 2011. Signed by Judge Emmet G. Sullivan on December 2, 2011. (lcegs4) (Entered: 12/02/2011)

12/02/2011

Set/Reset Deadlines: Reply to Dispositive Motions due by 12/16/2011. (clv, ) (Entered: 12/02/2011)

12/07/2011 358 NOTICE OF WITHDRAWAL OF APPEARANCE as to DAMON ADAMS, FRANK ADAMS, SHAFTON ADAMS, CHARLES AKINS, TWANDA ALEXANDER-WISE, ALL PLAINTIFFS, EARL ALLEN, BUTLER ALPHONSO, VERNON ALSTON, JR, MARSHA ANDERSON, ROY ANDERSON, SHERRY BAILEY, KENNETH BALDWIN, DARYL BANKS, TRENTON BASS, LARRY BENNETT, CLARENCE BLACK, SHARON BLACKMON-MALLOY, LEWIN BLACKSTON, SHIRLEY BLAND, DARRIN BLOXON, ERIC BOGGS, REGINA BOLDEN-WHITAKER, HELEN BONDJONES, GAYLE BOONE, WILBERT BOOTH, JR, AMANDO BOWMAN, TERESA BRADBY, CLINTON BRADFORD, GRADY BRADFORD, SR, SYLVIA BRADLEY, ROBERTS BRASWELL, JR, TYRONE BROOKS, LORETTA BULLOCK, SAPHONIA BUTLER, KAYLANA BYRD, JOHN WILLIE CALDWELL, JR, STEPHEN CANNADY, BRYAN CARTER, JOE CHRISTIAN, PERNELL CLARK, KAREN CLAY, WILLIAM CLEVELAND, LUATHUR COCHRAN, CHARLES COFFER, JR, REGINALD COLLINS, MICHAEL COVINGTON, DORIAN COWARD, J. CREEKMAR, MONTE CURTIS, RONALD CURTIS, ARNOLD FIELDS, DERRICK W. MACON, DUVALL PHELPS, VERNIER RIGGS. Attorney Donna Williams Rucker terminated. (Rucker, Donna) (Entered: 12/07/2011)

12/15/2011 359 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion to Dismiss by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 12/15/2011)

12/16/2011

MINUTE ORDER granting 359 Consent Motion for Extension of Time to File Reply. Defendant shall file their reply in support of their motion to dismiss by no later than December 23, 2011. Signed by Judge Emmet G. Sullivan on December

16, 2011. (lcegs4) (Entered: 12/16/2011)

12/16/2011

Set/Reset Deadlines: Reply to Dispositive Motions due by 12/23/2011. (clv, ) (Entered: 12/16/2011)

12/21/2011 360 Consent MOTION to Dismiss Certain Individual Plaintiffs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Plaintiffs' Letters of Authorization) (Garon, Lenore) (Entered: 12/21/2011)

12/21/2011 361 NOTICE of Filing by ALL PLAINTIFFS re 331 Memorandum in Opposition, 329 Memorandum in Opposition, 353 Notice (Other), Notice (Other) (Attachments: # 1 Second List of Additional Exhibits, # 2 Exhibit 113 - Chart Summarizing Evidence of Exhaustion of Administrative Remedies, # 3 Exhibit 114 Declaration of Sgt. Kim Ewings)(Garon, Lenore) (Entered: 12/21/2011)

12/23/2011 362 Consent MOTION for Leave to File Reply In Support Of Motion To Dismiss That Exceeds Page Limits (by seven pages) by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 12/23/2011)

12/23/2011 363 REPLY to opposition to motion re 298 MOTION to Dismiss for Lack of Jurisdiction as to Officer Derrick Macon filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) (Entered: 12/23/2011)

12/23/2011 364 MOTION Leave to File Bolden-Whitaker Ex. 1 Under Seal by UNITED STATES CAPITOL POLICE BOARD (Roback, Harry) (Entered: 12/23/2011)

12/23/2011 365 REPLY to opposition to motion re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Exhibit Excerpt from Plaintiffs' Appellate Brief, # 2 Exhibit Summary of Plaintiffs' Exhaustion of Administrative Remedies, # 3 Exhibit Summary of Plaintiffs' Claims That Were Timely Exhausted, # 4 Exhibit List of Plaintiffs)(Roback, Harry) (Entered: 12/23/2011)

12/27/2011

NOTICE OF ERROR re 363 Reply to opposition to Motion; emailed to harry.roback@usdoj.gov, cc'd 24 associated attorneys -- The PDF file you docketed contained errors: 1. Premature Filing-Court has not ruled on #362 (jf, ) (Entered: 12/27/2011)

01/03/2012

MINUTE ORDER. Pending before the Court is 360 plaintiffs' consent motion to dismiss, with prejudice, certain individuals from this action. In light of the consent motion, which contains the relevant plaintiffs' signed authorizations for dismissal, the Court GRANTS plaintiffs' motion to dismiss certain individual plaintiffs, with prejudice, from this action. SO ORDERED. Signed by Judge Emmet G. Sullivan on January 3, 2012. (lcegs4) (Entered: 01/03/2012)

01/03/2012

MINUTE ORDER granting 362 defendant's consent motion for leave to exceed page limitations. Signed by Judge Emmet G. Sullivan on January 3, 2012. (lcegs4) (Entered: 01/03/2012)

01/03/2012

MINUTE ORDER. Pending before the Court is 364 defendant's motion to file under seal one exhibit to its reply in support of defendant's motion to dismiss. Defendant has not fully articulated a basis for its request to file under seal in light of, e.g., the parties' status report of September 13, 2010 (Doc. No. 307 ), and this Court's minute order of September 13, 2010, nor has defendant indicated whether

the parties have conferred regarding the proposed filing under seal. The defendant is therefore ordered to supplement its motion to seal by no later than January 10, 2012. SO ORDERED. Signed by Judge Emmet G. Sullivan on January 3, 2012. (lcegs4) (Entered: 01/03/2012)

01/04/2012

Set/Reset Deadlines: Defendant's Supplement to the motion to seal is due by 1/10/2012. (clv, ) (Entered: 01/04/2012)

01/04/2012 366 NOTICE of Filing by ALL PLAINTIFFS re 331 Memorandum in Opposition, 329 Memorandum in Opposition, 353 Notice (Other), Notice (Other) (Attachments: # 1 Third List of Exhibits, # 2 Ex. 113 - Revised, # 3 Ex. 115)(Garon, Lenore) (Entered: 01/04/2012)

01/09/2012 367 SUPPLEMENT re 364 MOTION Leave to File Bolden-Whitaker Ex. 1 Under Seal filed by UNITED STATES CAPITOL POLICE BOARD. (Roback, Harry) Modified on 1/10/2012 (jf, ). (Entered: 01/09/2012)

01/10/2012 368 NOTICE of Filing by ALL PLAINTIFFS re 331 Memorandum in Opposition, 329 Memorandum in Opposition, 353 Notice (Other), Notice (Other) (Attachments: # 1 4th List of Additional Exhibits, # 2 Ex. 113 - Revised, # 3 Ex 116 - Decl of McKinley White)(Garon, Lenore) (Entered: 01/10/2012)

02/01/2012

MINUTE ORDER granting 364 defendant's unopposed motion, as supplemented by Docket No. 367 , to file under seal Bolden-Whitaker Exhibit 1, in support of defendant's Reply in Support of Motion to Dismiss. Signed by Judge Emmet G. Sullivan on February 1, 2012. (lcegs4) (Entered: 02/01/2012)

02/02/2012 369 SEALED DOCUMENT filed by UNITED STATES CAPITOL POLICE BOARD. (This document is SEALED and only available to authorized persons.)(ztd, ) (Entered: 02/02/2012)

02/03/2012 370 NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES CAPITOL POLICE BOARD. Attorney Harry B. Roback terminated. (Roback, Harry) (Entered: 02/03/2012)

02/06/2012 371 NOTICE of Appearance by Jeremy S. Simon on behalf of UNITED STATES CAPITOL POLICE BOARD (Simon, Jeremy) (Entered: 02/06/2012)

02/08/2012 372 NOTICE of Appearance by Wynne Patrick Kelly on behalf of UNITED STATES CAPITOL POLICE BOARD (Kelly, Wynne) (Entered: 02/08/2012)

03/09/2012

MINUTE ORDER. Consistent with this Court's policy regarding the referral of matters to magistrate judges, and in view of this Court's previous referral of matters in this action to Magistrate Judge John M. Facciola, the Court hereby rerefers this action to Magistrate Judge Facciola for a Report & Recommendation on 298 defendant's motion to dismiss. Signed by Judge Emmet G. Sullivan on March 8, 2012. (lcegs4) (Entered: 03/09/2012)

03/13/2012 373 CASE REFERRED to Magistrate Judge John M. Facciola for report and recommendation. (kb) (Entered: 03/14/2012)

03/19/2012 374 ORDER re referral to Judge Facciola for a Report and Recommendation re 298 . Signed by Magistrate Judge John M. Facciola on 3/19/12. Associated Cases: 1:01cv-02221-EGS-JMF, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-

00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(SP, ) (Entered: 03/19/2012)

04/18/2012 375 NOTICE of Filing by ALL PLAINTIFFS (Attachments: # 1 Declaration of Derek Hamilton, # 2 Declaration of Wendell Summers)(Garon, Lenore) (Entered: 04/18/2012)

12/14/2012 376 REPORT AND RECOMMENDATION re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. Signed by Magistrate Judge John M. Facciola on 12/14/12. (lcjmf1, ) (Entered: 12/14/2012)

12/21/2012 377 Consent MOTION for Extension of Time to File Response/Reply TO REPORT AND RECOMMENDATION by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:01-cv-02221-EGS-JMF et al.(Rainey, Valencia) (Entered: 12/21/2012)

12/26/2012

MINUTE ORDER granting 377 consent motion for extension of time to respond to Judge Facciola's Report and Recommendation. Plaintiffs shall file supplemental information regarding the five specific plaintiffs as set forth in Appendix C of the Report and Recommendation by no later than Janaury 23, 2013. The parties shall file any objections to the Report and Recommendation by no later than January 30, 2013. Signed by Judge Emmet G. Sullivan on December 26, 2012. (lcegs4) (Entered: 12/26/2012)

12/27/2012

Set/Reset Deadlines: Plaintiffs supplemental information due by 1/23/2013. Objections due by 1/30/2013 (clv, ) (Entered: 12/27/2012)

01/04/2013 378 SUPPLEMENTAL REPORT AND RECOMMENDATION re 298 MOTION to Dismiss for Lack of Jurisdiction as to Plaintiff Derrick Macon. Signed by Magistrate Judge John M. Facciola on 1/4/13. (lcjmf1, ) (Entered: 01/04/2013)

01/09/2013

NOTICE: Document numbers 376 and 378 was mailed to DERRICK W. MACON at the address of Court Record. (clv, ) (Entered: 01/09/2013)

01/23/2013 379 NOTICE - Plaintiffs' Clarification Pursuant to Magistrate Judge's Report and Recommendation of December 14, 2012 by SHARON BLACKMON-MALLOY re 376 Report and Recommendation (Attachments: # 1 Exhibit Ex. A Declaration of Shafton Adams, # 2 Exhibit Ex. B - Praecipe)(Garon, Lenore) (Entered: 01/23/2013)

01/24/2013 380 Joint MOTION for Extension of Time to File Responses to Report and Recommendation of Magistrate Judge by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 01/24/2013)

01/25/2013

MINUTE ORDER granting 380 plaintiffs' consent motion for extension of time. Plaintiffs shall file their objections to Judge Facciola's Report and Recommendation by no later than February 11, 2013; defendant shall file its response to 379 Plaintiffs' Clarification Pursuant to Judge Facciola's Report and Recommendation by no later than February 11, 2013. Signed by Judge Emmet G. Sullivan on January 25, 2013. (lcegs ) (Entered: 01/25/2013)

01/28/2013

Set/Reset Deadlines: plaintiff's objections to the Report and Recommendation due by 2/11/2013; defendant's response to clarification pursuant to Judge Facciola' Report and Recommendation due by 2/11/2013 (clv, ) (Entered: 01/28/2013)

01/30/2013 381 RESPONSE TO ORDER OF THE COURT re 376 Report and Recommendation filed by UNITED STATES CAPITOL POLICE BOARD. (Kelly, Wynne) (Entered: 01/30/2013)

02/06/2013 382 NOTICE of Supplemental Clarification by SHARON BLACKMON-MALLOY re 379 Notice (Other), 376 Report and Recommendation (Attachments: # 1 Declaration)(Garon, Lenore) (Entered: 02/06/2013)

02/06/2013 383 Joint MOTION for Extension of Time to File Response/Reply by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 02/06/2013)

02/07/2013

MINUTE ORDER granting 383 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge John M. Facciola on 2/7/13. Plaintiffs' Objections to the Report and Recommendation are due or before February 19, 2013; Defendant's Response to Plaintiffs' Clarification is also due on or before February 19, 2013. (lcjmf1, ) (Entered: 02/07/2013)

02/07/2013

Set/Reset Deadlines: Plaintiff's Objections to R&R due by 2/19/2013. Defendant's Response to Plaintiffs' Clarification due by 2/19/2013 (ldc, ) (Entered: 02/07/2013)

02/11/2013 384 OBJECTION to 378 SUPPLEMENTAL REPORT AND RECOMMENDATION re 298 MOTION to Dismiss for Lack of Jurisdiction as to Plaintiff Derrick Macon filed by DERRICK W. MACON. "Let this be filed" signed by Judge Emmet G. Sullivan on 02/08/2013 (Attachments: # 1 Exhibit)(jf, ) (Entered: 02/11/2013)

02/19/2013 385 RESPONSE re 379 Notice (Other), 382 Notice (Other) filed by UNITED STATES CAPITOL POLICE BOARD. (Kelly, Wynne) (Entered: 02/19/2013)

02/19/2013 386 OBJECTION to 376 Report and Recommendations filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Garon, Lenore) (Entered: 02/19/2013)

02/28/2013 387 Consent MOTION for Extension of Time to File Response to Plaintiff Derrick Macon's Objections to the Supplemental Report and Recommendation by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Text of Proposed Order)(Kelly, Wynne) (Entered: 02/28/2013)

03/04/2013

MINUTE ORDER granting 387 defendant's unopposed motion for extension of time. Defendant's response to 384 plaintiff Derrick Macon's objections to 378 Judge Facciola's Supplemental Report and Recommendation shall be filed by no later than April 1, 2013. Signed by Judge Emmet G. Sullivan on March 4, 2013. (lcegs4) (Entered: 03/04/2013)

03/04/2013

Set/Reset Deadlines: Defendant's Response due by 4/1/2013. (mac) (Entered: 03/04/2013)

03/07/2013 388 Consent MOTION for Extension of Time to Respond to Plaintiffs' Objections (ECF No. 386) by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 03/07/2013)

03/07/2013 389 SUPPLEMENTAL REPORT AND RECOMMENDATION re 298 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CAPITOL POLICE BOARD. Signed by Magistrate Judge John M. Facciola on 3/7/13. (lcjmf1, )

(Entered: 03/07/2013)

03/11/2013

MINUTE ORDER granting 388 defendant's consent motion for extension of time to respond to 386 plaintiffs' objections. Defendant shall file its response by no later than April 8, 2013. Signed by Judge Emmet G. Sullivan on March 11, 2013. (lcegs4) (Entered: 03/11/2013)

03/11/2013

Set/Reset Deadlines: Defendant's Responses due by 4/8/2013. (mac) (Entered: 03/11/2013)

03/25/2013 390 OBJECTION to 389 Report and Recommendations filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 03/25/2013)

04/01/2013 391 RESPONSE re 384 Objection to Report and Recommendations, of Plaintiff Derrick Macon filed by UNITED STATES CAPITOL POLICE BOARD. (Kelly, Wynne) (Entered: 04/01/2013)

04/05/2013 392 Consent MOTION for Extension of Time to File Response to Plaintiffs' Objections to Magistrate Judge Facciola's Report and Recommendation and Supplemental Report and Recommendation by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Text of Proposed Order)(Kelly, Wynne) (Entered: 04/05/2013)

04/08/2013

MINUTE ORDER granting 392 consent motion for extension of time for defendant to respond to plaintiffs' objections, docket numbers 386 and 390 , to Judge Facciola's reports and recommendations. Defendant shall file its responses by no later than May 3, 2013. Signed by Judge Emmet G. Sullivan on April 8, 2013. (lcegs4) (Entered: 04/08/2013)

04/08/2013

Set/Reset Deadlines: Responses due by 5/3/2013 (clv, ) (Entered: 04/08/2013)

05/03/2013 393 Consent MOTION for Leave to File Excess Pages for Defendant's Response to plaintiff's objections to Magistrate Judge Facciola's Initial and Supplemental Report and Recommendation by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Defendant's Response to Plaintiffs' Objections to the Magistrate Judge's Initial and Supplemental Report and Recommendation, # 2 Proposed Order)(Simon, Jeremy) Modified text on 5/3/2013 (td, ). (Entered: 05/03/2013)

05/08/2013

MINUTE ORDER granting 393 defendant's consent motion for leave to file a response in excess of the 45 page limit. The clerk of the court is directed to accept the response attached to defendant's motion for filing. Signed by Judge Emmet G. Sullivan on May 8, 2013. (lcegs4) (Entered: 05/08/2013)

05/08/2013 394 RESPONSE re 391 RESPONSE re 384 Objection to Report and Recommendations, of Plaintiff Derrick Macon filed by UNITED STATES CAPITOL POLICE BOARD. (jf, ) (Entered: 05/08/2013)

07/10/2013 395 NOTICE of Filing by SHARON BLACKMON-MALLOY re 386 Objection to Report and Recommendations (Attachments: # 1 Errata to Doc. 386-1)(Garon, Lenore) (Entered: 07/10/2013)

07/10/2013 396 MOTION to Amend/Correct 278 Amended Complaint, by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Joint Fifth Amended Complaint, # 3 Text of Proposed Order)(Garon, Lenore) (Entered: 07/10/2013)

07/26/2013 397 Consent MOTION for Extension of Time to File Response/Reply as to 396

MOTION to Amend/Correct 278 Amended Complaint, by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Text of Proposed Order)(Kelly, Wynne) (Entered: 07/26/2013)

07/29/2013

MINUTE ORDER granting 397 consent motion for extension of time to respond to plaintiffs' motion for leave to file Fifth Amended Complaint. Defendant shall file its response by no later than August 28, 2013. Signed by Judge Emmet G. Sullivan on July 29, 2013. (lcegs4) (Entered: 07/29/2013)

07/30/2013

Set/Reset Deadlines: Response due by 8/28/2013. (mac) (Entered: 07/30/2013)

08/28/2013 398 Memorandum in opposition to re 396 MOTION to Amend/Correct 278 Amended Complaint, filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Text of Proposed Order)(Kelly, Wynne) (Entered: 08/28/2013)

09/09/2013 399 Consent MOTION for Extension of Time to File Response/Reply as to 396 MOTION to Amend/Correct 278 Amended Complaint, by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 09/09/2013)

09/11/2013

MINUTE ORDER granting nunc pro tunc 399 plaintiffs' consent motion for extension of time. Plaintiffs shall file their reply in support of motion for leave to amend their complaint by no later than September 12, 2013. Signed by Judge Emmet G. Sullivan on September 11, 2013. (lcegs4) (Entered: 09/11/2013)

09/11/2013

Set/Reset Deadlines: Motion For Leave To Amend Complaint due by 9/12/2013. (mac) (Entered: 09/11/2013)

09/12/2013 400 REPLY to opposition to motion re 396 MOTION to Amend/Correct 278 Amended Complaint, filed by ALL PLAINTIFFS. (Garon, Lenore) (Entered: 09/12/2013)

04/21/2015 401 MOTION for Briefing Schedule for Counsel's Motion To Withdraw by ALL PLAINTIFFS (Garon, Lenore) (Entered: 04/21/2015)

04/23/2015

MINUTE ORDER. The Court, sua sponte, schedules a status hearing to discuss 401 plaintiffs' motion for a briefing schedule on April 30, 2015 at 3:00 p.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on April 23, 2015. (lcegs2) (Entered: 04/23/2015)

04/23/2015

Set/Reset Hearings: Status Conference set for 4/30/2015 at 3:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 04/23/2015)

04/29/2015 402 NOTICE of Filing re Amendment to Plaintiffs' Motion to Set a Briefing Schedule for Counsels' Motion to Withdraw by FRANK ADAMS, SHAFTON ADAMS, SHARON BLACKMON-MALLOY, REGINA BOLDEN-WHITAKER, ARNOLD FIELDS, DUVALL PHELPS, VERNIER RIGGS re 401 MOTION for Briefing Schedule for Counsel's Motion To Withdraw (Garon, Lenore) (Entered: 04/29/2015)

04/30/2015

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held and concluded on 4/30/2015. Court to STAY proceedings pending Plaintiffs ability to retain new counsel. Control Status Hearing set for Thursday, October 15, 2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. Court to issue minute order accordingly. (Court Reporter Scott Wallace.) (tcr) (Entered: 04/30/2015)

05/01/2015 403 MINUTE ORDER. In accordance with the discussion held on the record during

the April 30, 2015 status hearing, it is hereby ORDERED as follows: Plaintiffs' counsel shall file their motion to withdraw by no later than May 29, 2015. The case is hereby STAYED until further Order of the Court to provide the plaintiffs time to secure new counsel. The Court will hold a status hearing on October 15, 2015 at 3:30 p.m. in Courtroom 24A. Attached to this Minute Order are three documents containing various legal-aid resources that may assist the plaintiffs in their search for new counsel. Signed by Judge Emmet G. Sullivan on May 1, 2015. (Attachments: # 1 Exhibit, # 2 Exhibit) Associated Cases: 1:01-cv-02221EGS, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(lcegs2) (Entered: 05/01/2015)

05/04/2015

Set/Reset Hearings: Status Conference set for 10/15/2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (tcr) (Entered: 05/04/2015)

05/12/2015

MINUTE ORDER. In view of the Court's Order directing plaintiffs' counsel to file their motion to withdraw by no later than May 29, 2015, the Court, sua sponte, schedules a status hearing to take place on June 12, 2015 at 3:30 p.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on May 12, 2015. (lcegs2) (Entered: 05/12/2015)

05/12/2015 404 OPPOSITION TO COUNSEL'S UNOPPOSED MOTION FOR LEAVE TO WITHDRAW filed by DUVALL PHELPS. "Let this be filed" by Judge Emmet G. Sullivan (rdj) (Entered: 05/13/2015)

05/13/2015

Set/Reset Hearings: Status Conference set for 6/12/2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 05/13/2015)

05/14/2015 405 MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Rainey, Valencia) (Entered: 05/14/2015)

05/27/2015 406 MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Exhibit Signed Consents to Withdrawal, # 2 Exhibit Plaintiffs Served)(Garon, Lenore) (Entered: 05/27/2015)

05/29/2015 407 NOTICE of Filing by SHARON BLACKMON-MALLOY re 406 MOTION to Withdraw as Attorney (Attachments: # 1 Additional Consents to Withdrawal) (Garon, Lenore) (Entered: 05/29/2015)

06/11/2015 408 ERRATA by SHARON BLACKMON-MALLOY 406 MOTION to Withdraw as Attorney filed by ALL PLAINTIFFS. (Attachments: # 1 Proposed Order)(Garon, Lenore) (Entered: 06/11/2015)

06/12/2015

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 6/12/2015. Status Conference Remains Scheduled for October 15, 2015 at 3:30 p.m. in Courtroom 24A before Judge Emmet H. Sullivan. Order To Be Issued. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 06/15/2015)

06/12/2015

Set/Reset Hearings: Status Conference set for 10/15/2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 06/15/2015)

06/15/2015

MINUTE ORDER. The Court enters this Minute Order to memorialize the discussion held on the record during the June 12, 2015 status hearing, and to

govern further proceedings in this case. First, as the Court indicated during the status hearing, the Court intends to issue a written opinion providing the Court's reasoning and intended resolution of the pending objections to Magistrate Judge Facciola's Report and Recommendation regarding the defendant's motion to dismiss and the plaintiffs' pending motion for leave to file an amended complaint. In view of the ongoing representation issues regarding the many plaintiffs currently represented by Joseph Gebhardt and members of his former law firm, the Court will delay entry of any final order and stay the effectiveness of this opinion pending resolution of those representation issues. No party raised any objection to the Court proceeding in this manner during the June 12, 2015 status hearing. Second, as discussed during the status hearing, Attorney Joseph Gebhardt and members of his former law firm seek to withdraw from representing the plaintiffs they have represented in this case. Further, Mr. Nathaniel Johnson--who currently represents a number of other plaintiffs, as reflected in the list of plaintiffs recited on the record by defendant's counsel during the status hearing-may intend to withdraw from representation of one of his clients, Frank Adams, who expressed his current opposition to such a request. These representational issues shall be governed as follows: Any attorney who seeks to withdraw as counsel for one or more of his or her clients shall forthwith contact Bar Counsel for the District of Columbia to discuss the attorney's responsibilities with respect to withdrawing from representation in this case and facilitating his or her client's ability to continue to prosecute this case. Any attorney seeking to withdraw as counsel for one or more of his or her clients shall also read and follow every portion of the following legal provisions--as well as any others that Bar Counsel may indicate are appropriate--Local Civil Rule 83.6, D.C. Rules of Professional Responsibility 1.1 and 1.16. In view of the admitted inadequacy of the notice provided thus far, Attorney Gebhardt and members of his former law firm shall ensure that all of their clients receive the complete notice of the pending request for withdrawal as well as an appropriate explanation of the client's rights and responsibilities regarding further prosecution of this action, by first-class mail and certified mail, to the last-known address of each client, in accordance with the discussion held during the June 12, 2015 status hearing. Signed by Judge Emmet G. Sullivan on June 15, 2015. (lcegs2) (Entered: 06/15/2015)
06/17/2015 409 (Amended) Memorandum in opposition to re 406 MOTION to Withdraw as Attorney filed by FRANK ADAMS. (jf) (Entered: 06/17/2015)
06/17/2015 410 RESPONSE TO ORDER OF THE COURT re 403 MINUTE ORDER. In accordance with the discussion held on the record during the April 30, 2015 status hearing, it is hereby ORDERED as follows: Plaintiffs' counsel shall file their motion to withdraw by no later than May 29, 2015. The case is here by STAYED until further Order of the Court to provide the plaintiffs time to secure new counsel filed by FRANK ADAMS. (jf) (Entered: 06/18/2015)
06/29/2015 411 MOTION to Withdraw as Attorney by FRANK ADAMS (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Appendix, # 5 Text of Proposed Order)(Johnson, Nathaniel) (Entered: 06/29/2015)
07/02/2015 412 RESPONSE TO ORDER OF THE COURT re Order,,,,,,,,,,, (Notice of Filing) filed by ALL PLAINTIFFS. (Day, Charles) (Entered: 07/02/2015)

09/29/2015 413 Consent MOTION for Extension of Time to Hold Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 09/29/2015)

10/02/2015

MINUTE ORDER granting 413 consent motion to reschedule status conference. The status hearing previously scheduled for October 15, 2015 at 3:30 PM will now take place on November 18, 2015 at 3:30 PM in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 10/2/2015. (lcegs1) (Entered: 10/02/2015)

10/02/2015

Set/Reset Hearings: Status Conference set for 11/18/2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 10/02/2015)

10/07/2015 414 MOTION to Withdraw as Attorney by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order, # 5 Certificate of Service)(Day, Charles) (Entered: 10/07/2015)

10/16/2015 415 Renewed Memorandum in opposition to re 406 MOTION to Withdraw as Attorney filed by DUVALL PHELPS. (jf) (Entered: 10/20/2015)

11/06/2015 416 REPLY re 414 Motion for Leave to Withdraw filed by ALL PLAINTIFFS. (Gebhardt, Joseph) Modified on 11/9/2015 (jf). (Entered: 11/06/2015)

11/16/2015 417 Consent MOTION to Substitute Party Regina Ikard by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Johnson, Nathaniel) (Entered: 11/16/2015)

11/16/2015 418 Consent MOTION to Substitute Party Marian Dickson by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Johnson, Nathaniel) (Entered: 11/16/2015)

11/16/2015

MINUTE ORDER. Due to the Courts calendar, it is necessary to reschedule the status hearing currently scheduled for November 18, 2015 at 3:30 p.m. The status hearing will now take place on November 18, 2015 at 6:00 p.m in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on November 16, 2015. (lcegs1) (Entered: 11/16/2015)

11/16/2015

Set/Reset Hearings: Status Conference set for 11/18/2015 at 6:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 11/16/2015)

11/17/2015

MINUTE ORDER. Due to the Courts calendar, it is necessary to reschedule the status hearing currently scheduled for November 18, 2015. The status hearing will now take place on December 10, 2015 at 3:30 p.m in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on November 17, 2015. (lcegs1) (Entered: 11/17/2015)

11/17/2015

Set/Reset Hearings: Status Conference set for 12/10/2015 at 3:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 11/17/2015)

12/09/2015 419 NOTICE of Filing by SHARON BLACKMON-MALLOY re 414 MOTION to Withdraw as Attorney (Attachments: # 1 Exhibit Chart - Results of Mailing, # 2 Exhibit Consents Received)(Gebhardt, Joseph) (Entered: 12/09/2015)

12/10/2015 420 Letter from Michael Malloy. "Let this be filed" signed by Judge Emmet G. Sullivan on 12/09/2015 (jf) (Entered: 12/10/2015)

12/10/2015

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 12/10/2015. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 12/10/2015)

12/18/2015

MINUTE ORDER granting 417 consent motion to substitute party. Regina Ikard, Personal Representative of the Estate of Larry Ikard, is hereby ordered substituted as a party plaintiff in this action. Signed by Judge Emmet G. Sullivan on December 18, 2015. (lcegs1) (Entered: 12/18/2015)

12/31/2015

MINUTE ORDER granting 418 consent motion to substitute party. Marian R. Dickson, Personal Representative of the Estate of Jerry Dickson, is hereby ordered substituted as a party plaintiff in this action. Signed by Judge Emmet G. Sullivan on December 31, 2015. (lcegs1) (Entered: 12/31/2015)

03/09/2016 421 CERTIFICATE OF SERVICE by ALL PLAINTIFFS re 414 MOTION to Withdraw as Attorney . (Attachments: # 1 Certificate of Service Second, # 2 Certificate of Service Third)(Day, Charles) (Entered: 03/09/2016)

03/16/2016

MINUTE ORDER. The Court sua sponte schedules a status hearing in this case at 4:00 pm on June 2, 2016 in Courtroom 24A. The Court notes that at the last status hearing in this case, the defendant was directed to file a report regarding their efforts to locate addresses for plaintiffs for whom there was no current address. In view of the fact that that report has not been filed, the defendant is directed to file that report by no later than April 15, 2016.Signed by Judge Emmet G. Sullivan on 3/16/2016. (lcegs1) (Entered: 03/16/2016)

03/16/2016

Set/Reset Deadlines/Hearings: Defendant Report due by 4/15/2016. Status Conference set for 6/2/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 03/16/2016)

04/01/2016 422 RESPONSE TO ORDER TO SHOW CAUSE by UNITED STATES CAPITOL POLICE BOARD re Order,, . (Kelly, Wynne) (Entered: 04/01/2016)

04/02/2016 423 CERTIFICATE OF SERVICE by ALL PLAINTIFFS re 414 MOTION to Withdraw as Attorney . (Garon, Lenore) (Entered: 04/02/2016)

04/11/2016

MINUTE ORDER. Due to the Court's calendar, it is necessary to reschedule the status hearing currently scheduled for June 2, 2016. The status hearing will now take place on June 23, 2016 at 4:00 p.m. in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 4/11/2016. (lcegs1) (Entered: 04/11/2016)

04/12/2016

Set/Reset Hearings: Status Conference set for 6/23/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 04/12/2016)

05/19/2016 424 MOTION to Clarify Representation, MOTION to Compel by FRANK ADAMS (jf) (Entered: 05/19/2016)

05/27/2016 425 Consent MOTION to Continue Status Conference Scheduled for June 23, 2016 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 05/27/2016)

05/31/2016

MINUTE ORDER granting 425 consent motion to reschedule status conference. The status conference scheduled for June 23, 2016 shall take place at 4:00 pm on July 13, 2016 in Courtroom 24A. Signed by Judge Emmet G. Sullivan on

5/31/2016. (lcegs1) (Entered: 05/31/2016)

05/31/2016

Set/Reset Hearings: Status Conference set for 7/13/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 05/31/2016)

06/16/2016

MINUTE ORDER. In view of 424 motion to clarify representation and compel the clerk of court and Attorney Johnson to act, the Court informs the parties that Nathaniel D. Johnson's 411 motion for leave to withdraw as counsel is pending. Mr. Johnson is ORDERED, by no later than June 24, 2016, to inform his clients that his motion is pending. Signed by Judge Emmet G. Sullivan on 6/16/2016. (lcegs1) (Entered: 06/16/2016)

06/23/2016 426 NOTICE Plaintiffs' Response to Defendant's Report in Response to the Court's Order by SHARON BLACKMON-MALLOY re 422 Response to Order to Show Cause (Gebhardt, Joseph) (Entered: 06/23/2016)

06/24/2016

Due to the Court's calendar it is necessary to reschedule the status conference currently scheduled for July 13, 2016. The status conference shall take place on August 23, 2016 at 4:00 pm in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 6/24/2016. (lcegs1) (Entered: 06/24/2016)

06/24/2016

Set/Reset Hearings: Status Conference set for 8/23/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 06/24/2016)

07/14/2016 427 Consent MOTION to Continue Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 07/14/2016)

07/14/2016 428 CERTIFICATE OF SERVICE by ALL PLAINTIFFS re 414 MOTION to Withdraw as Attorney . (Garon, Lenore) (Entered: 07/14/2016)

07/20/2016

MINUTE ORDER granting 427 Consent Motion to Continue Status Conference. The status hearing scheduled for August 23, 2016 shall take place on September 30, 2016 at 4:00 pm in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 7/20/2016. (lcegs1) (Entered: 07/20/2016)

07/21/2016

Set/Reset Hearings: Status Conference set for 9/30/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 07/21/2016)

09/29/2016

MINUTE ORDER. Due to unforeseen circumstances, it is necessary to reschedule the status hearing currently scheduled for September 30, 2016. The status hearing will now take place on October 14, 2016 at 4:00 p.m. in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 9/29/2016. (lcegs1) (Entered: 09/29/2016)

09/29/2016

Set/Reset Hearings: Status Conference set for 10/14/2016 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 09/29/2016)

10/13/2016 429 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 10/13/2016. (Attachments: # 1 Appendix I, # 2 Appendix II) Associated Cases: 1:01-cv-02221-EGS, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481EGS, 1:03-cv-01505-EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv00320-EGS, 1:04-cv-00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653EGS(lcegs1) (Entered: 10/13/2016)

10/13/2016

MINUTE ORDER. In view of 429 Memorandum Opinion issued today, the status hearing scheduled for October 14, 2016 is CANCELLED. A status hearing shall

take place on January 19, 2017 at 4:00 pm in Courtroom 24A so that the parties may update the Court on the status of the attorney representation issues. Signed by Judge Emmet G. Sullivan on 10/13/2016. Associated Cases: 1:01-cv-02221-EGS, 1:02-cv-01346-EGS, 1:02-cv-01859-EGS, 1:02-cv-02481-EGS, 1:03-cv-01505EGS, 1:03-cv-01592-EGS, 1:03-cv-02644-EGS, 1:04-cv-00320-EGS, 1:04-cv00943-EGS, 1:05-cv-00491-EGS, 1:06-cv-00653-EGS(lcegs1) (Entered: 10/13/2016)

10/14/2016

Set/Reset Hearings: Status Conference set for 1/19/2017 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 10/14/2016)

12/15/2016

MINUTE ORDER. In view of the call placed to Chambers by one of the counsel for plaintiffs advising the Court of a conflict with regard to the time set for the next status hearing in this case on January 19, 2017, counsel is advised to file whatever motion he deems appropriate to address the conflict. Signed by Judge Emmet G. Sullivan on 12/15/2016. (lcegs1) (Entered: 12/15/2016)

12/20/2016 430 Consent MOTION for Attorney to be Excused from Status Conference re Order, by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 12/20/2016)

01/05/2017

MINUTE ORDER. In view of the closure of the United States District Court for the District of Columbia on January 19, 2017, the status hearing scheduled for January 19, 2017 is cancelled. The status hearing shall take place on February 15, 2017 at 4:00 pm in Courtroom 24A. Plaintiffs' 430 consent motion for attorney to be excused from status conference is denied as moot. Signed by Judge Emmet G. Sullivan on 1/5/2017. (lcegs1) (Entered: 01/05/2017)

01/05/2017

Set/Reset Deadlines/Hearings: Status Conference reset for 2/15/2017 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (cdw) (Entered: 01/06/2017)

02/14/2017 431 MOTION for Reconsideration re 429 Order, with respect to dismissal of Plaintiff Blackmon-Malloy's Year 2000 non-promotion claim by SHARON BLACKMONMALLOY (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 02/14/2017)

02/15/2017

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 2/15/2017. The Court Will Issue An Order Forthcoming. (Court Reporter JANICE DICKMAN.) (zmac) (Entered: 02/16/2017)

02/15/2017 432 Email from Joseph D. Gebhardt to Regina and Sharon "Let this be filed" by Judge Emmet G. Sullivan (zrdj) (Entered: 02/16/2017)

02/17/2017

MINUTE ORDER. In view of 432 plaintiffs' request that counsel issue a lien release letter, Attorney Joseph Gebhardt and members of his former law firm shall file a response to the plaintiffs' request by no later than March 16, 2017. Signed by Judge Emmet G. Sullivan on 2/17/2017. (lcegs1) (Entered: 02/17/2017)

02/17/2017

MINUTE ORDER granting 405 motion to withdraw in view of Ms. Rainey's representation at the February 16, 2017 status hearing in this matter that she is now employed by the United States government. Signed by Judge Emmet G. Sullivan on 2/17/2017. (lcegs1) (Entered: 02/17/2017)

02/17/2017

Set/Reset Deadlines: Response To The Plaintiffs' Request due by 3/16/2017 (mac)

(Entered: 02/17/2017)

02/24/2017 433 NOTICE of Withdrawal of Appearance by FRANK ADAMS (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Johnson, Nathaniel) Modified event title on 2/27/2017 (znmw). (Entered: 02/24/2017)

02/28/2017 434 Memorandum in opposition to re 431 MOTION for Reconsideration re 429 Order, with respect to dismissal of Plaintiff Blackmon-Malloy's Year 2000 non-promotion claim filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 02/28/2017)

03/06/2017 435 Consent MOTION for Extension of Time to File Response/Reply to Defendants Opposition to Motion To Reconsider Dismissal of Plaintiff Sharon BlackmonMalloys Year 2000 Promotion Claim by SHARON BLACKMON-MALLOY (Attachments: # 1 Text of Proposed Order)(Garon, Lenore) (Entered: 03/06/2017)

03/06/2017

MINUTE ORDER granting 435 consent motion for extension of time. Plaintiff Sharon Blackmon-Malloy's reply to defendant's opposition to plaintiff's motion to reconsider shall be filed by no later than March 21, 2017. Signed by Judge Emmet G. Sullivan on 3/6/2017. (lcegs1) (Entered: 03/06/2017)

03/07/2017

Set/Reset Deadlines: Plaintiff Sharon Blackmon-Malloy's Reply To Defendant's Opposition To Plaintiff's Motion To Reconsider due by 3/21/2017. (mac) (Entered: 03/07/2017)

03/16/2017 436 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by SHARON BLACKMON-MALLOY, REGINA BOLDEN-WHITAKER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order (Proposed Order for Motion for Leave to File Documents under Seal), # 2 Plaintiffs' Counsel's Response to Court Order of February 17, 2017, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Text of Proposed Order (Proposed Order for Plaintiffs' Counsel's Response))(Gebhardt, Daniel) (Entered: 03/16/2017)

03/21/2017 437 Consent MOTION for Extension of Time to File Response/Reply as to 431 MOTION for Reconsideration re 429 Order, with respect to dismissal of Plaintiff Blackmon-Malloy's Year 2000 non-promotion claim by SHARON BLACKMONMALLOY (Attachments: # 1 Text of Proposed Order)(Day, Charles) (Entered: 03/21/2017)

03/21/2017

MINUTE ORDER granting 437 consent motion for extension of time. Plaintiff's reply to defendant's opposition to plaintiff's motion to reconsider shall be filed on or before March 28, 2017. Signed by Judge Emmet G. Sullivan on 3/21/2017. (lcegs1) (Entered: 03/21/2017)

03/21/2017

Set/Reset Deadlines: Plaintiff's Reply To Defendant's Opposition To Plaintiff's Motion To Reconsider due by 3/28/2017. (mac) (Entered: 03/21/2017)

03/28/2017 438 REPLY to opposition to motion re 431 MOTION for Reconsideration re 429 Order, with respect to dismissal of Plaintiff Blackmon-Malloy's Year 2000 nonpromotion claim filed by SHARON BLACKMON-MALLOY. (Day, Charles) (Entered: 03/28/2017)

04/12/2017 439 SEALED MOTION for leave to file Response filed by SHARON BLACKMON-

MALLOY, REGINA BOLDEN-WHITAKER. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Response)(zjf) (Entered: 04/14/2017)

04/28/2017 440 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by SHARON BLACKMON-MALLOY, REGINA BOLDEN-WHITAKER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order (Proposed Order for Motion for Leave to File Documents under Seal), # 2 Plaintiffs' Counsel's Reply to Plaintiffs' Response to Withdrawing Counsel's Response to the Court's Order of February 17, 2017, # 3 Exhibit 1)(Gebhardt, Daniel) (Entered: 04/28/2017)

05/31/2017 441 MOTION for Protective Order and In Camera Review by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Garon, Lenore). Added MOTION for In Camera Review on 6/1/2017 (znmw). (Entered: 05/31/2017)

06/14/2017 442 Memorandum in opposition to re 441 MOTION for Protective Order and In Camera Review MOTION for In Camera Review filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 06/14/2017)

06/21/2017 443 REPLY to opposition to motion re 441 MOTION for Protective Order and In Camera Review MOTION for In Camera Review filed by ALL PLAINTIFFS. (Attachments: # 1 Sealed Documents Log)(Garon, Lenore) (Entered: 06/21/2017)

10/19/2017

ENTERED IN ERROR.....MINUTE ORDER: Plaintiff and counsel for Defendant phoned chambers on October 19, 2017 to bring to the court's attention a dispute concerning the deposition of the Plaintiff. This court ORDERS, consistent with the instruction communicated by telephone, that Defendant shall file a motion to compel, if at all, by no later than October 24, 2017. The court further ORDERS that Plaintiff shall file his opposition by no later than October 31, 2017, and that Defendant shall file its reply by no later than November 3, 2017. The court will determine the need for extension of discovery after this motion is fully briefed. So Ordered by Magistrate Judge Deborah A. Robinson on 10/19/2017. (lcdar1) Modified on 10/19/2017 (zcal). (Entered: 10/19/2017)

10/19/2017

NOTICE OF CORRECTED DOCKET ENTRY: MINUTE ORDER filed 10/19/2017 was entered in error and does not apply to this particular case (01-CV2221). (zcal) (Entered: 10/19/2017)

03/30/2018

MINUTE ORDER finding as moot 401 plaintiffs counsels motion for briefing schedule for counsels motion to withdraw. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)

03/30/2018

MINUTE ORDER finding as moot 406 plaintiffs counsels motion to withdraw as attorney in view of 414 plaintiffs counsels renewed motion for leave to withdraw. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)

03/30/2018

MINUTE ORDER. Pending before the Court is 411 Plaintiffs' Counsel, Nathaniel D. Johnson's Motion for Leave to Withdraw as Counsel. The Court cannot yet reach the merits of this motion because Mr. Johnson has not fully complied with the applicable local rule. Local Civil Rule 83.6 governs the withdrawal of appearance by motion and requires, inter alia, a motion to withdraw an appearance

03/30/2018
03/30/2018 03/30/2018 03/30/2018

shall be accompanied by a certificate of service listing the party's last known address. The certificate of service accompanying 441 motion does not comply with the rule because it does not list each plaintiffs last known address. Mr. Johnson is therefore ORDERED to file a certificate of service that complies with Local Rule 83.6 by no later than April 13, 2018. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER. Pending before the Court is 414 Plaintiffs' Counsel's Renewed Motion for Leave to Withdraw, as supplemented by 419 Notice of Filing, 421 Certificate of Service, 423 Certificate of Service, and 428 Certificate of Service. The Court cannot yet reach the merits of this motion because counsel has not fully complied with the applicable local rule because five plaintiffs have not been served with the motion and notice required by Local Civil Rule 83.6. The following plaintiffs do not appear on any of the certificates of service: (1) Loretta Bullock; (2) Robert Lumpkin; (3) Sherrie Parker; (4) Paul Proctor; and (5) Stephanie Williams. Counsel are therefore ORDERED to file, by no later than April 13, 2018, a certificate of service for these five plaintiffs listing the party's last known address and stating that the attorney has served upon the party a copy of the motion and a notice advising the party to obtain other counsel, or, if the party intends to conduct the case pro se or to object to the withdrawal, to so notify the Clerk in writing within seven days of service of the motion. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER denying without prejudice 431 motion for reconsideration. Plaintiff does not indicate whether reconsideration is sought pursuant to Federal Rule of Civil Procedure 59(e)(providing relief from a judgment) or Rule 60 (providing relief from a judgment or order). Because the Court has not yet entered an Order to accompany 429 Memorandum Opinion pending the resolution of the attorney representation issues, plaintiffs motion is premature. This motion is denied without prejudice to timely refiling after the Court enters the Order to accompany 429 Memorandum Opinion. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
Set/Reset Deadlines: Plaintiffs' Counsel, Nathaniel D. Johnson's Certificate Of Service due by 4/13/2018. (mac) (Entered: 03/30/2018)
MINUTE ORDER denying 436 sealed motion for leave to file document under seal in view of: (1) the strong presumption in favor of public access to judicial records, see, e.g., Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 (1978) (It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.); and (2) counsel's failure to provide a legal basis for the Court to grant a motion to file under seal documents containing sensitive issues involving the attorney-client relationship, including retainer agreements, attorney fees, and attorney-client meetings and discussions. The Court let be filed on the docket 432 plaintiff's request for a lien release letter and requested a response from counsel so that the Court would be informed of whether or not counsel provided such a letter, and not to resolve any potential fee dispute between plaintiffs and their counsel. Moreover, counsel's representation that they intend[] to release any claims for attorneys fees and expenses from plaintiffs effective upon the granting of counsels

03/30/2018
03/30/2018
03/30/2018 03/30/2018

motion to withdraw from the case, ECF No. 441 at 2, renders any potential fee dispute moot. Consequently, 436 is not part of the record in this case. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER denying 439 sealed motion for leave to file response in view of: (1) the failure to serve defendant as required under the Federal Rules of Civil Procedure and the Local Rules of this Court; (2) the strong presumption in favor of public access to judicial records, see, e.g., Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 (1978) (It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.); and (3) plaintiffs' failure to provide a legal basis for the Court to grant a motion to file under seal documents containing issues involving the attorney-client relationship. The Court let be filed on the docket 432 plaintiff's request for a lien release letter and requested a response from counsel so that the Court would be informed of whether or not counsel provided such a letter, and not to resolve any potential fee dispute between plaintiffs and their counsel. Moreover, counsel's representation that they "intend[] to release any claims for attorneys fees and expenses from plaintiffs effective upon the granting of counsels motion to withdraw from the case," ECF No. 441 at 2, renders any potential fee dispute moot. Consequently, 439 is not part of the record in this case. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER denying 440 sealed motion for leave to file response in view of the: (1) failure to serve defendant as required under the Federal Rules of Civil Procedure and the Local Rules of this Court; (2) the strong presumption in favor of public access to judicial records, see, e.g., Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 (1978) (It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.); and (3) counsel's failure to provide a legal basis for the Court to grant a motion to file under seal documents containing "sensitive issues involving the attorney-client relationship, including retainer agreements, attorney fees, and attorney-client meetings and discussions." The Court let be filed on the docket 432 plaintiffs request for a lien release letter and requested a response from counsel so that the Court would be informed of whether or not counsel provided such a letter, and not to resolve any potential fee dispute between plaintiffs and their counsel. Moreover, counsels representation that they "intend[] to release any claims for attorneys fees and expenses from plaintiffs effective upon the granting of counsel's motion to withdraw from the case," ECF No. 441 at 2, renders any potential fee dispute moot. Consequently, 440 is not part of the record in this case. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER denying counsels' 441 motion nunc pro tunc for protective order and in camera review of plaintiffs' filings. The Court denied the motions to seal at Docket Entry Nos. 439 and 440 . The filings for which plaintiffs' counsel seek a protective order and in camera review are not filed in this proceeding. Counsel's request is therefore moot. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
MINUTE ORDER. In plaintiffs' counsel's 441 motion nunc pro tunc for protective order and in camera review of plaintiffs' filings, counsel state that they "intend[]

to release any claims for attorneys fees and expenses from plaintiffs effective upon the granting of counsels motion to withdraw from the case." Id. at 2. Counsel is directed to file the release of claims and attorneys fees and expenses with the Court so that the Court may rule on 414 plaintiffs' counsel's renewed motion for leave to withdraw. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)

04/12/2018 444 CERTIFICATE OF SERVICE by ALL PLAINTIFFS re Order,,,, OF MARCH 30, 2018, AT 3:57 P.M.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Garon, Lenore) (Entered: 04/12/2018)

04/13/2018 445 NOTICE Filing Release of Attorney Fees and Expenses by SHARON BLACKMON-MALLOY re Order,, (Day, Charles) (Entered: 04/13/2018)

04/25/2018

MINUTE ORDER. Nathaniel Johnson, Esq. has failed to comply with this Court's minute order of 3/30/2018 which provided as follows: Pending before the Court is 411 Plaintiffs' Counsel, Nathaniel D. Johnson's Motion for Leave to Withdraw as Counsel. The Court cannot yet reach the merits of this motion because Mr. Johnson has not fully complied with the applicable local rule. Local Civil Rule 83.6 governs the withdrawal of appearance by motion and requires, inter alia, a motion to withdraw an appearance shall be accompanied by a certificate of service listing the party's last known address. The certificate of service accompanying 441 motion does not comply with the rule because it does not list each plaintiffs last known address. Mr. Johnson is therefore ORDERED to file a certificate of service that complies with Local Rule 83.6 by no later than April 13, 2018. Mr. Johnson is HEREBY ORDERED TO SHOW CAUSE by no later than May 9, 2018, why he should not be held in contempt of Court for failure to comply with this Court's order. Signed by Judge Emmet G. Sullivan on 4/25/2018. (lcegs1) (Entered: 04/25/2018)

04/25/2018

Set/Reset Deadlines: Mr. Johnson Show Cause due by 5/9/2018. (mac) (Entered: 04/25/2018)

04/25/2018

MINUTE ORDER. In view of 445 Notice, withdrawing counsel are HEREBY ORDERED to provide a copy their Notice of Filing Release of Attorneys Fees and Expenses to plaintiffs Sharon Blackmon-Malloy and Regina Boulden-Whitaker by no later than May 2, 2018. Withdrawing counsel are FURTHER ORDERED to inform Ms. Blackmon-Malloy and Ms. Boulden-Whitaker that the Court will hold a status conference in this case on July 26, 2018 at 4:00 pm in Courtroom 24A regarding the status of plaintiffs' attempts to obtain new counsel in this matter. Signed by Judge Emmet G. Sullivan on 4/25/2018. (lcegs1) (Entered: 04/25/2018)

04/26/2018

Set/Reset Hearings: Status Conference set for 7/26/2018 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 04/26/2018)

04/26/2018 446 NOTICE of Service of Release of Attorney Fees and Expenses by SHARON BLACKMON-MALLOY re Order,, (Day, Charles) (Entered: 04/26/2018)

05/09/2018 447 RESPONSE TO ORDER TO SHOW CAUSE by ALL PLAINTIFFS . (Johnson, Nathaniel) (Entered: 05/09/2018)

05/09/2018 448 CERTIFICATE OF SERVICE by ALL PLAINTIFFS . (Johnson, Nathaniel) (Entered: 05/09/2018)

07/26/2018

MINUTE ORDER. Pending before the Court is Nathaniel Johnson Esq.'s motion to withdraw as a attorney. As a fundamental premise, counsel is under an obligation to see the work through to completion when he agrees to undertake the representation of his client. Alexian Brothers Medical Center v. Sebelius, 63 F. Supp. 3d 105, 107 (D.D.C. 2014)(quoting Laster v. District of Columbia, 460 F.Supp.2d 111, 113 (D.D.C.2006). Local Civil Rule 83.6 governs the withdrawal of appearance by motion and provides as follows: "If a trial date has been set, or if a party's written consent is not obtained, or if the party is not represented by another attorney, an attorney may withdraw an appearance for a party only by order of the Court upon motion by the attorney served upon all parties to the case. Unless the party is represented by another attorney or the motion is made in open court in the party's presence, a motion to withdraw an appearance shall be accompanied by a certificate of service listing the party's last known address and stating that the attorney has served upon the party a copy of the motion and a notice advising the party to obtain other counsel, or, if the party intends to conduct the case pro se or to object to the withdrawal, to so notify the Clerk in writing within seven days of service of the motion." The decision to grant or deny counsels motion to withdraw is committed to the discretion of the district court. Laster, 460 F.Supp.2d at 113 (citing Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir.1999)). The Court may also consider other factors, such as the length of time the case has been pending, the time it would take for the party to secure successor counsel, and the degree of financial burden that counsel would suffer if the court required him to remain in the case. Alexian Brothers Medical Center, 63 F. Supp. 3d at 107 (internal quotations omitted). Nathaniel Johnson, Esq.'s 411 motion to withdraw includes a notice advising the party to obtain other counsel, or, if the party intends to conduct the case pro se or to object to the withdrawal, to so notify the Clerk in writing within seven days of service of the motion. See ECF No. 4113. In view of 448 certificate of service, Mr. Johnson, Esq.'s 411 motion to withdraw now complies with Local Rule 86.3. The Court therefore GRANTS Mr. Johnson's motion. Signed by Judge Emmet G. Sullivan on 7/26/2018. (lcegs1) (Entered: 07/26/2018)

07/26/2018

MINUTE ORDER. The parties are directed to file, by no later than July 31, 2018, a joint status report regarding efforts to obtain a mailing address for plaintiff Paul Proctor. Signed by Judge Emmet G. Sullivan on 7/26/2018. (lcegs1) (Entered: 07/26/2018)

07/26/2018

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 7/26/2018. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 07/27/2018)

07/27/2018

Set/Reset Deadlines: Joint Status Report due by 7/31/2018. (mac) (Entered: 07/27/2018)

07/28/2018 449 CERTIFICATE OF SERVICE by ALL PLAINTIFFS . (Garon, Lenore) (Entered: 07/28/2018)

07/31/2018 450 Joint STATUS REPORT by UNITED STATES CAPITOL POLICE BOARD. (Simon, Jeremy) (Entered: 07/31/2018)

08/03/2018 451 ORDER granting 414 renewed motion to withdraw. Signed by Judge Emmet G. Sullivan on 8/3/2018. (lcegs1) (Entered: 08/03/2018)

08/03/2018

Set/Reset Hearings: Status Conference set for 2/4/2019 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 08/03/2018)

08/16/2018 452 MOTION for Reconsideration re Minute Order filed on 07/26/2018, MOTION to Compel Testimony by FRANK ADAMS (jf) (Entered: 08/17/2018)

08/30/2018 453 Memorandum in opposition to re 452 MOTION for Reconsideration re Order,,,,,,,,, MOTION to Compel filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Johnson, Nathaniel) (Entered: 08/30/2018)

11/02/2018

MINUTE ORDER DENYING Frank Adams' 452 motion for reconsideration of this Court's Minute Order of July 26, 2018 granting the motion of Mr. Nathaniel Hawthorne, Esq., to withdraw as counsel. Mr. Adams has not notified the Court that he is representing himself pro se, although he has written "presumed pro se" after his name in the signature block of the motion. If Mr. Adams intends to represent himself pro se, he must inform the Court of his intent to do so. Although Mr. Adams' motion was neither filed by an attorney authorized to practice before this Court pursuant to Local Civil Rule 83.2 nor by Mr. Adams representing himself pro se, the Court will nonetheless reach the merits. The standard for determining whether or not to grant a motion for reconsideration brought under Rule 54(b) is the "as justice requires" standard. Judicial Watch v. Dep't of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006). The considerations that a court may take into account under this standard include "whether the court patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred." In Def. of Animals v. Nat'l Inst. of Health, 543 F.Supp.2d 70, 75 (D.D.C.2008) (internal quotation marks omitted). The party moving to reconsider has the burden of demonstrating "that some harm, legal or at least tangible, would flow from a denial of reconsideration." Id. at 76 (quoting Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005)). "[E]ven if justice does not require reconsideration of an interlocutory ruling, a decision to reconsider is nonetheless within the court's discretion." Id. (internal quotation marks omitted). However, this discretion is "limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Id. (quoting Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)) (internal quotation marks omitted). Here, Mr. Adams seeks reconsideration of the Court's Minute Order granting Mr. Hawthorne's motion to withdraw even though Mr. Adams states that he does not object to Mr. Hawthorne's withdrawal and does not contend that he did not receive notice of Mr. Hawthorne's intent to withdraw. Rather, he asks the Court to compel Frederick Herrera to explain why he provided allegedly false information about Mr. Adams' last known address to Mr. Hawthorne and why Mr. Hawthorne relied on that allegedly false information. Given that Mr. Adams does not object to Mr. Hawthorne's withdrawal and that he does not contend that he did not receive notice of Mr. Hawthorne's intent to withdraw, justice does not require reconsideration of the Court's Order. The Court DENIES Mr. Adams' motion to compel as meritless for the same reasons. Mr. Adams is DIRECTED to file a Notice with the clerk of Court pursuant to Local

Civil Rule 5.1(c) to provide the Clerk of Court with his current mailing address and telephone number. The Court DENIES Mr. Adams' request to compel the withdrawn attorneys in this case to provide plaintiffs with the files for this case because the Court has not been informed that counsel have failed to provide the files in response to a request from plaintiffs or from new counsel. Finally, a pro se party may obtain a CM/ECF username and password pursuant to Local Civil Rule 5.4, but as stated above, Mr. Adams has not indicated to the Court that he will represent himself pro se. The Clerk of Court is DIRECTED to not file any putative motions from Mr. Adams in this matter without leave of the Court unless he informs the Clerk of Court that he is representing himself pro se. The Clerk of Court is directed to mail a copy of this Minute Order to Mr. Frank Adams at the following address: 5817 South Marwood Blvd., Upper Marlboro, MD 20772. Signed by Judge Emmet G. Sullivan on 11/2/2018. (lcegs1) (Entered: 11/02/2018)

01/08/2019 454 NOTICE of Appearance by Algernon Marques Pitre on behalf of ARNOLD FIELDS Associated Cases: 1:01-cv-02221-EGS et al.(Pitre, Algernon) (Entered: 01/08/2019)

02/01/2019 455 MOTION to Dismiss Party With Prejudice by VERNIER RIGGS (jf) (Entered: 02/04/2019)

02/04/2019

MINUTE ORDER. Due to unforeseen circumstances, it is necessary to reschedule the status conference scheduled for February 4, 2019. The status conference shall take place on February 12, 2019 at 4:00 pm in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 2/4/2019. (lcegs1) (Entered: 02/04/2019)

02/04/2019

Set/Reset Hearings: Status Conference set for 2/12/2019 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 02/04/2019)

02/11/2019 456 MOTION to Continue by ARNOLD FIELDS (Attachments: # 1 Text of Proposed Order)(Pitre, Algernon) (Entered: 02/11/2019)

02/11/2019

MINUTE ORDER granting 456 motion to continue status conference. The status conference scheduled for February 12, 2019 shall take place on February 19, 2019 at 4:00 pm in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 2/11/2019. (lcegs1) (Entered: 02/11/2019)

02/11/2019 457 MOTION to Appoint Counsel, MOTION for CM/ECF Password by FRANK ADAMS (jf) (Entered: 02/12/2019)

02/12/2019

Set/Reset Hearings: Status Conference set for 2/19/2019 at 4:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 02/12/2019)

02/19/2019

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 2/19/2019. Oral Motion By Plaintiffs Present For CM/ECF Password Heard and Granted. The Court Will Grant ECF Privileges For Plaintiffs SHARON BLACKMAN-MALLOY, ARNOLD FIELDS, AVE MARIE HARRIS, REGINAL BOLDEN-WHITAKER, LUTHER S. PETERSON, JR, DALE VEAL and DANNY L. MCELROY. The Court Will Not Schedule A Hearing At This Time. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 02/19/2019)

02/19/2019 458 MOTION for Mediation by FRANK ADAMS (jf) (Entered: 02/22/2019)

03/01/2019 459 MOTION to Dismiss with prejudice by JOHN N. JOHNSON (04cv320). "Let this be filed" signed by Judge Emmet G. Sullivan on 03/01/2019 (jf) (Entered: 03/05/2019)

03/07/2019 460 RESPONSE re 458 MOTION for Mediation filed by UNITED STATES CAPITOL POLICE BOARD. (Simon, Jeremy) (Entered: 03/07/2019)

03/11/2019 461 NOTICE of Appearance by Kelly M. Scindian on behalf of UNITED STATES CAPITOL POLICE BOARD (Scindian, Kelly) (Entered: 03/11/2019)

03/11/2019 462 NOTICE of Appearance by Rafique O. Anderson on behalf of UNITED STATES CAPITOL POLICE BOARD (Anderson, Rafique) (Entered: 03/11/2019)

07/30/2019 463 ORDER granting in part and denying in part 298 Motion to Dismiss for Lack of Jurisdiction; denying 396 Motion to Amend/Correct. Signed by Judge Emmet G. Sullivan on 7/30/2019. (lcegs1) (Entered: 07/30/2019)

07/30/2019

MINUTE ORDER construing 455 plaintiff Vernier Riggs' motion to dismiss with prejudice as a motion to withdraw from case. Vernier Riggs is HEREBY WITHDRAWN as a plaintiff in this case. The Clerk of Court is directed to mail this Minute Order to Mr. Riggs. Signed by Judge Emmet G. Sullivan on 7/30/2019. (lcegs1) (Entered: 07/30/2019)

07/30/2019

MINUTE ORDER construing 459 John Johnson's motion to dismiss with prejudice as a motion to withdraw from case. John Johnson is HEREBY WITHDRAWN as a plaintiff in this case. The Clerk of Court is directed to mail this Minute Order to Mr. Johnson. Signed by Judge Emmet G. Sullivan on 7/30/2019. (lcegs1) (Entered: 07/30/2019)

07/30/2019

MINUTE ORDER granting in part and denying in part 457 motion to appoint counsel, motion for CM/ECF password. The motion to appoint counsel is denied without prejudice. The motion for CM/ECF password is GRANTED. The Clerk of Court is directed to mail the ECF Attorney/Participant Registration Form to Frank Adams. The Court will grant ECF privileges upon the proper completion of the form. The Clerk of Court is directed to mail this Minute Order to Mr. Adams. Signed by Judge Emmet G. Sullivan on 7/30/2019. (lcegs1) (Entered: 07/30/2019)

07/30/2019 464 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 07/30/19. (Attachment: Exhibit 1) (mac) (Entered: 07/30/2019)

08/08/2019 465 NOTICE of Pro Se Appearance filed by TYRONE BROOKS (jf) (Entered: 08/09/2019)

08/08/2019 466 NOTICE of Pro Se Appearance filed by REGINALD W. WATERS (jf) (Entered: 08/09/2019)

08/08/2019 467 NOTICE of Pro Se Appearance filed by FRANK W. WILKES, JR. (jf) (Entered: 08/09/2019)

08/08/2019 468 NOTICE of Pro Se Appearance filed by KENDRICK A. YOUNG (jf) (Entered: 08/09/2019)

08/13/2019 469 NOTICE by FRANK ADAMS (ztd) (Entered: 08/15/2019)

08/20/2019 471 Letter from Frank Adams. "Let this be filed" Signed by Judge Emmet G. Sullivan, USDJ on 08/20/2019 (jf) (Entered: 08/26/2019)

08/20/2019 472 STATUS REPORT by LEONARD ROSS. "Let this be filed" Signed by Judge Emmet G. Sullivan, USDJ on 08/20/2019 (jf) (Entered: 08/26/2019)

08/20/2019 473 RESPONSE TO ORDER OF THE COURT re 429 Order, filed by FRANK ADAMS. "Let this be filed. The government shall file a response by no later than 09/06/2019. The plaintiff shall reply by no later than 09/13/2019" Signed by Judge Emmet G. Sullivan, USDJ on 08/20/2019 (jf) (Entered: 08/26/2019)

08/21/2019 470 MOTION for Reconsideration re 429 Order, by SHARON BLACKMONMALLOY (jf) (Entered: 08/22/2019)

08/26/2019

Set/Reset Deadlines: Government Response due by 9/6/2019. Plaintiff Reply due by 9/13/2019. (mac) (Entered: 08/26/2019)

08/26/2019 474 NOTICE of Pro Se Appearance by REGINA IKARD (jf) (Entered: 08/27/2019)

08/26/2019 475 MOTION for Leave to File Supplemental Briefing by FRANK ADAMS (Attachments: # 1 Exhibit Response, # 2 Exhibits)(jf) (Entered: 08/27/2019)

08/27/2019 476 NOTICE of Pro Se Appearance by LEONARD ROSS (jf) (Entered: 08/28/2019)

08/27/2019 477 STATUS REPORT by SHARON BLACKMON-MALLOY, REGINA BOLDENWHITAKER, AVE MARIE HARRIS, REGINA IKARD, DANNY L. MCELROY, LUTHER S. PETERSON, JR, LEONARD ROSS, DALE VEAL. (jf) (Entered: 08/28/2019)

08/27/2019 478 NOTICE of Pro Se Appearance by GOVERNOR LATSON, JR (jf) (Entered: 08/28/2019)

08/27/2019 480 NOTICE of Pro Se Appearance by RICHARD WEBB (jf) (Entered: 08/28/2019)

08/27/2019 483 NOTICE of Pro Se Appearance by REGINA IKARD. "Let this be filed" by Judge Emmet G. Sullivan on 8/27/19. (ztth) (Entered: 08/29/2019)

08/28/2019 479 NOTICE of Pro Se Appearance by TAMMIE D. GREEN (jf) (Entered: 08/28/2019)

08/28/2019 484 NOTICE of Pro Se Appearance by KEVIN MATTHEWS, SR (jf) (Entered: 09/04/2019)

08/28/2019 485 NOTICE of Pro Se Appearance by SANDRA BROWN-JAMES (jf) (Entered: 09/04/2019)

08/28/2019 486 STATUS REPORT by SANDRA BROWN-JAMES, TAMMIE D. GREEN, GOVERNOR LATSON, JR, KEVIN MATTHEWS, SR, RICHARD WEBB. (jf) (Entered: 09/04/2019)

08/29/2019 481 STATUS REPORT (Defendant's Status Report Regarding Further Proceedings (accompanied by Frank Adams' Status Report) by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Plaintiff Frank Adams' Status Report) (Simon, Jeremy) (Entered: 08/29/2019)

08/29/2019 482 STATUS REPORT by ARNOLD FIELDS. (Pitre, Algernon) (Entered: 08/29/2019)

09/04/2019 487 Memorandum in opposition to re 470 MOTION for Reconsideration re 429 Order, filed by UNITED STATES CAPITOL POLICE BOARD. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/04/2019)

09/04/2019 488 Consent MOTION for Extension of Time to Respond to Plaintiff Frank Adams' Supplemental Submission by UNITED STATES CAPITOL POLICE BOARD (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/04/2019)

09/09/2019

MINUTE ORDER granting 475 motion to substitute and 488 consent motion for extension of time. Defendant shall file its response to Plaintiff Frank Adams' Supplemental Submission by no later than October 8, 2019; Mr. Adams shall file his reply by no later than November 8, 2019. Signed by Judge Emmet G. Sullivan on 9/9/2019. (lcegs1) (Entered: 09/09/2019)

09/09/2019

MINUTE ORDER. In view of 477 , 481 , 482 , and 486 status reports, the Court informs the parties that it agrees that mediation would not be fruitful until the Court rules on the two pending matters in this case -- Ms. Blackmon-Malloy's motion for reconsideration and Mr. Frank Adams' supplemental submission -- as well as the defendant's anticipated motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(6). Signed by Judge Emmet G. Sullivan on 9/9/2019. (lcegs1) (Entered: 09/09/2019)

09/09/2019 489 REPLY to opposition re 470 MOTION for Reconsideration re 429 Order, filed by SHARON BLACKMON-MALLOY. (zjf) (Entered: 09/12/2019)

09/09/2019 491 SUPPLEMENTAL BRIEFING filed by FRANK ADAMS. (jf) (Entered: 09/30/2019)

09/10/2019

Set/Reset Deadlines: Defendant Response To Plaintiff Frank Adams' Supplemental Submission due by 10/8/2019. Mr. Adams Reply due by 11/8/2019. (mac) (Entered: 09/10/2019)

09/25/2019 490 NOTICE OF SUBSTITUTION OF COUNSEL by Alan R. Burch on behalf of All Defendants Substituting for attorney Jeremy Simon (Burch, Alan) (Entered: 09/25/2019)

10/07/2019 492 RESPONSE re 473 Response to Order of the Court, for Supplemental Briefing filed by UNITED STATES CAPITOL POLICE BOARD. (Burch, Alan) (Entered: 10/07/2019)

11/12/2019 493 REPLY re 473 Response to Order of the Court, filed by FRANK ADAMS. (eg) (Entered: 11/13/2019)

12/30/2019 494 NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES CAPITOL POLICE BOARD. Attorney Rafique O. Anderson terminated. (Anderson, Rafique) (Entered: 12/30/2019)

10/21/2020 495 NOTICE OF SUBSTITUTION OF COUNSEL by Christopher Charles Hair on behalf of All Defendants Substituting for attorney Alan Burch (Hair, Christopher) (Entered: 10/21/2020)

12/20/2020 496 NOTICE OF SUBSTITUTION OF COUNSEL by Thomas Duffey on behalf of UNITED STATES CAPITOL POLICE BOARD Substituting for attorney Christopher Charles Hair (Duffey, Thomas) (Entered: 12/20/2020)

03/18/2021 497 MEMORANDUM OPINION AND ORDER adopting in part 376 Report and

Recommendation as to Lt. Frank Adams and granting 470 Motion for Reconsideration. Signed by Judge Emmet G. Sullivan on 3/18/2021. (Attachments: # 1 Appendix Appendix I Redline Version, # 2 Appendix Appendix I Clean Version, # 3 Appendix Appendix II Redline Version, # 4 Appendix Appendix II Clean Version) (lcegs1) (Entered: 03/18/2021)

03/18/2021

MINUTE ORDER denying, without prejudice, 458 motion for mediation. As the Court stated in the Minute Order dated September 9, 2019, the Court agrees that mediation would not be fruitful until the Court rules on the defendant's anticipated motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Signed by Judge Emmet G. Sullivan on 3/18/2021. (lcegs1) (Entered: 03/18/2021)

03/18/2021

MINUTE ORDER DIRECTING the parties to, by no later than April 2, 2021, submit a joint status report with recommendations for further proceedings in this case. Signed by Judge Emmet G. Sullivan on 3/18/2021. (lcegs1) (Entered: 03/18/2021)

03/19/2021

Set/Reset Deadlines: Joint Status Report due by 4/2/2021. (mac) (Entered: 03/19/2021)

03/24/2021 498 NOTICE of Appearance by Algernon Marques Pitre on behalf of DALE VEAL (Pitre, Algernon) (Entered: 03/24/2021)

03/24/2021 499 NOTICE of Appearance by Algernon Marques Pitre on behalf of REGINALD W. WATERS (Pitre, Algernon) (Entered: 03/24/2021)

03/29/2021 502 NOTICE of Pro Se Appearance by DUVALL PHELPS (zjf) (Entered: 04/05/2021)

03/29/2021 503 NOTICE of Pro Se Appearance by BRENT MILLS (zjf) (Entered: 04/05/2021)

03/31/2021 500 Plaintiffs' STATUS REPORT by FRANK ADAMS. (zjf) (Entered: 04/01/2021)

04/02/2021 501 Joint STATUS REPORT by UNITED STATES CAPITOL POLICE BOARD. (Duffey, Thomas) (Entered: 04/02/2021)

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Transaction Receipt

04/08/2021 13:40:31

PACER Login:

CRClearinghouse

Client Code:

Yu

Description: Docket Report

Search 1:01-cvCriteria: 02221-EGS

Billable Pages:

30

Cost:

3.00