I’m thrilled to close out the first cycle of posts for the refreshed D.C. Circuit Review – Reviewed.  I consider myself the clear novice of the group, and look forward to reading and learning more throughout the term.  Fortunately, the court is easing me into my role, issuing only one decision this week. 

Breiterman v. United States Capitol Police involves a Capitol Police employee’s challenge to three disciplinary actions imposed by her employer.  She was suspended after commenting to fellow employees that women had to “sleep with someone to get ahead,” and was placed on administrative leave and ultimately demoted for leaking to the press a picture of an unattended Capitol Police firearm left in a men’s bathroom.  Breiterman alleged that the disciplinary actions were sex discrimination and retaliation (for a prior discrimination complaint she had filed) in violation of the Congressional Accountability Act, and unlawful retaliation for speech protected by the First Amendment.  The district court disagreed, and granted the Capitol Police summary judgment.

The unanimous panel (Wilkins, Rao, and Silberman) affirmed, in an opinion written by Judge Rao.  Considering the CAA claims, the court applied the burden-shifting framework applicable to Title VII claims.  Under that framework, a plaintiff must first establish a prima facie case of discrimination.  The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action.  The burden then shifts back to the plaintiff to show that the proffered reason is pretextual. 

The D.C. Circuit takes a decidedly minimalist approach in applying this framework, holding that the court should skip the first step entirely if the employer has offered a nondiscriminatory reason.  The panel held that the Capitol Police did so here, and turned to focus on whether Breiterman could show that reason was pretext.  And it turns out, she could not.  The panel found no evidence that would support an inference that the disciplinary actions were not based on Breiterman’s improper remarks or photo leaks. Her attempts to show sex discrimination by pointing to more favorable treatment for male employees failed because she did not select comparators with similar roles, violations, or disciplinary histories. 

On the First Amendment retaliation claim, the panel considered whether Breiterman’s right to speak about an issue of public concern (the Capitol Police leaving unattended firearms in a bathroom) was outweighed by the government’s interest.  The panel assumed that the issue was one of public concern, and that Breiterman spoke in her role as a citizen rather than as a public employee.  It nevertheless concluded that the Capitol Police had substantial interests in disciplining her, particularly in light of “the special degree of trust and discipline required in a police force.”  In leaking the photo, Breiterman had “violated the media policy, interfered with regular operations, damaged the trust among employees, and impaired her ability to serve effectively as a supervisor.” 

Aside from that opinion, the court had a busy week of arguments, including two FERC cases, a FOIA case dealing with information DOJ is withholding regarding officials who were not charged in the Mueller investigation, and an APA challenge to the FLRA’s interpretation of a statute.  And, in exciting news for those of us living in the district, the Court announced that it will return to in-person oral arguments on December 1 (it has been conducting arguments by Zoom, with a public audio feed).  Here’s hoping those arguments will allow for audiences in the near future!