Exactly 10 years and one week after more than 200 black Capitol Police officers first formally alleged rampant racial discrimination in the department, a new complaint charges that the same conduct prevails.
A grievance sent to the Office of Compliance on April 20, 2011 and an accompanying D.C. Bar complaint filed on April 18, 2011 claim that a Capitol Police employment attorney misled the court to frustrate a long-standing race discrimination case and that he himself subjects African-American employees, particularly women, to a hostile workplace.
“Discrimination is still alive and well within the United States Capitol Police Department,” Lt. Frank Adams said at a U.S. Capitol Black Police Association news conference Tuesday in the Cannon House Office Building, where he and a dozen other current and former officers unveiled their complaints.
In addition to defending the Capitol Police against claims of racial discrimination, Frederick Herrera is the subject of two active race and sex discrimination lawsuits in the U.S. District Court for the District of Columbia. More than 50 Capitol Police officers and civilian employees are involved in the new Office of Compliance complaint accusing Herrera of violating the Congressional Accountability Act, which applies workplace laws to Congress. “Herrera’s illegal actions violate the same anti-workplace discrimination laws which he is employed, at taxpayer’s expense, to support,” the complaint states.
Capitol Police Chief Phillip Morse and the Capitol Police Board continue “to give tacit approval of Mr. Herrera’s behavior, which is not only discriminatory, but represents a serious conflict of interest,” it says. Capitol Police spokeswoman Sgt. Kimberly Schneider said in an email that the department “does not discuss pending or potential litigation.” Though he was unavailable to immediately comment, Sergeant-at-Arms Terrance Gainer, who chairs the Capitol Police Board and was police chief from 2002 to 2006, said in October that Herrera would not defend the department in cases in which he is named as the accused party.
Gainer also noted then that Herrera is innocent until proved guilty. Scharon Ball, an employment counsel under Herrera, sued Morse and the board in September charging that they failed to thoroughly investigate claims that Herrera engaged in “repeated acts of retaliatory harassment,” according to the complaint filed in the U.S. District Court for D.C. Mary Rhone, a former officer and current human resources specialist, charged in a February lawsuit that the board did not fully investigate her allegations that Herrera lied about her performance in order to undermine her credibility and that two other employees harassed her as well. “The legal system of Capitol Police is using us and using their powers to oppress people,” Rhone said at the news conference Tuesday. “I will fight until I don’t have any more breath in me. I will file as many complaints as it takes to get the people who oppressed us out of office.”
Rhone also called on Congress, which has been largely absent from intervening in the allegations as they work their way through the legal system, to “step up and do something about the discrimination on Capitol Hill.” Rhone’s lawsuit also says Herrera participated in her administrative mediation sessions “not as a negotiator, but as an intimidator,” even though she requested he not be present. That allegation is one of the complaints against Herrera submitted to the D.C. Bar. “Herrera was the primary subject of Ms. Rhone’s complaint, yet he refused to recuse himself as requested by Ms. Rhone, from the administrative, mediation process,” the bar complaint states. The association is asking that Herrera be disbarred, reprimanded, suspended and disallowed from providing advice and counsel on employment discrimination matters or participating in mediation concerning complaints against him.
The U.S. Capitol Black Police Association also says Herrera tried to frustrate the decade-long legal efforts of more than 200 black officers who say the department has long discriminated against them. They say Herrera said in court that each plaintiff must have first attended mediation in person in order to later sue, a position overturned in 2009 by the U.S. Court of Appeals for the District of Columbia Circuit. “Herrera knowingly and willfully breached his legal, ethically binding duties by instructing the USCP Board and Department of Justice attorneys, who also represent the USCP Board, to pursue and aggressively defend an incorrect, false, and legally deceptive position,” the bar complaint states. “Herrera’s intentional, unethical, legally non-defensible conduct resulted in a substantial amount of wasteful litigation, unwarranted court appearances, undue stress to plaintiffs, and accelerated payments from plaintiffs’ involving legal fees to fund this case and the misuse of taxpayer’s fees to fund Department of Justice attorneys’ participation in this case.”
The OOC complaint will have to result in 30 days of counseling, 30 days of mediation and a 30- to 90-day cooling-off period before the charges can be brought to court, but Adams said the complaint likely will end up there. The bar complaint will be reviewed by the D.C. Bar to determine whether it is worth investigating. If it is determined that Herrera violated the rules of professional conduct, he could be admonished or disbarred.
By Daniel Newhauser — Roll Call Staff — April 19, 2011, 5:37 p.m. Roll Call —