UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LISA NILES,

Plaintiff,

v. Civil Action No. 16-1209 (TSC)

U.S. CAPITOL POLICE,

Defendant.

MEMORANDUM OPINION

Plaintiff Lisa Niles, a former police officer with the U.S. Capitol Police (“USCP”), has

sued the USCP, claiming that her termination constituted disability discrimination under the

Americans with Disabilities Act (“ADA”) and race and sex discrimination under Title VII of the

Civil Rights Act of 1964. USCP has moved for summary judgment. ECF No. 52. For the

reasons stated below, the court will GRANT Defendant’s Motion.

I. BACKGROUND

In reciting the relevant facts, the court relies mainly on the undisputed material facts set

forth by Defendant, along with Plaintiff’s responses thereto. Pl.’s Resp. to Def.’s Statement of

Undisputed Material Facts, ECF No. 55-1 (“Pl.’s Resp. to SUMF”). At the outset, a word about

the meaning of “undisputed” facts is in order. The party seeking summary judgment bears the

“initial responsibility of informing the district court of the basis for its motion, and identifying

those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue

of material fact.” Celotex Corp. v. Catrett,

(1986) (internal quotation marks

omitted). To dispute a fact, “the non-movant must rely on evidence—i.e., its opposition must

Page 1 of 15 consist of more than mere unsupported allegations or denials and must be supported by

affidavits, declarations, or other competent evidence, setting forth specific facts showing that

there is a genuine issue for trial.” Rochon v. Lynch,

(D.D.C. 2015)

(quotation omitted), aff’d,

(D.C. Cir. 2016). Where Defendant has stated certain

facts and supported them with evidence, therefore, the court treats those facts as undisputed if

Plaintiff’s only response is to deny them without counter evidence or to raise generic protests

against them that are unrelated to the facts’ veracity.

Accordingly, the following facts are undisputed: On May 30, 2014, Amtrak contacted

Defendant to report two incidents in which Plaintiff—who is a Black woman—“boarded an

Amtrak train as a passenger and did not pay her fare.” Pl.’s Resp. to SUMF ¶¶ 68–69.

According to the Amtrak Police Department (APD), the first incident occurred on February 26,

2014 and Plaintiff “not only did not pay for a ticket,” but also “sought to avoid getting

discovered by a conductor by moving to another car or going to the bathroom while the

conductor collected tickets.” Id. ¶ 70. The conductor also said that “he observed Plaintiff

remove a seat check from another passenger’s seat” and then claim that another conductor had

given it to her, which the other conductor denied. Id. ¶ 86. An APD officer’s report states that

when he confronted Plaintiff about her lack of ticket or payment, she “explained that she did not

realize she could not take Amtrak Trains.” Id. ¶ 77. The officer explained to her Amtrak’s

policy that non-Amtrak law enforcement officers “are required to have a ticket to ride.” Id.

¶¶ 77–78.

The second incident occurred on May 17, 2014. An Amtrak conductor said she

encountered Plaintiff on the station platform at Wilmington, Delaware, asked if Plaintiff had a

ticket, and Plaintiff answered that she did. Id. ¶ 82. But when the conductor asked Plaintiff to

Page 2 of 15 show the ticket after she boarded the train, “Plaintiff appeared to search for a ticket but then

stated ‘Well, I don’t actually have a ticket-ticket.’” Id. The conductor, who later told Defendant

that “other conductors had previously had issues with Plaintiff riding Amtrak without paying,”

id. ¶ 84, once again summoned APD officers, id. ¶ 94. An officer stated that she escorted

Plaintiff to the APD office and explained “that this was not the first time she had stopped

Plaintiff,” and that Plaintiff “had committed a crime.” Id. ¶ 96.

Defendant appointed an Investigator in its Office of Professional Responsibility (“OPR”)

to review Amtrak’s complaint against Plaintiff. Id. ¶ 76. The Investigator spoke with the

Amtrak conductors and APD officers involved in the two incidents. Id. ¶¶ 77–78, 80, 85, 93.

The Investigator also interviewed Plaintiff twice, and in both interviews she acknowledged her

obligation to answer all questions truthfully. Id. ¶ 100. During the interviews, Plaintiff denied

that she was stopped by APD on February 26, 2014, or that she had been informed of Amtrak’s

policy requiring non-Amtrak law enforcement officers to purchase tickets. Id. ¶¶ 102, 112–13.

Plaintiff did recall being stopped by APD on May 17, 2014 but denied that she had told a

conductor that she had a ticket before boarding. Id. ¶ 102, 106. Plaintiff claimed that she had

asked a male conductor whether it was “okay for [her] to ride, and he nodded his head . . . as to

mean yes.” Id. ¶ 111. Later, Plaintiff said, she “was told to get off the train by a female

conductor and did not resist” paying for the ticket “because APD asked her to pay.” Id. ¶¶ 109–

110. But she admitted that “she continued to ride the train without paying even after being

stopped on May 17, 2014 and told by APD that from then on she needed to purchase a ticket

before she boarded any Amtrak train.” Def.’s Mot. for Summary Judgment, Ex. 4 at 8, ECF No.

52-6.

Page 3 of 15 Based on his review, the Investigator “sustained”—that is, “found sufficient evidence that

a violation of [Defendant’s] Rules of Conduct occurred,” Pl.’s Resp. to SUMF ¶ 37—charges

against Plaintiff for “Conduct Unbecoming” and “Truthfulness,” id. ¶ 116. The Investigator’s

report was approved by OPR officials and submitted to Disciplinary Review Officer (“DRO”)

Scharon Ball for assignment of a recommended penalty based on “the nature and seriousness of

the offense, the employment history of the employee, any mitigating factors, and penalties issued

in similar cases.” Id. ¶¶ 122, 46.

Ball recommended a penalty of demotion for the Conduct Unbecoming charge, and

termination for the Truthfulness charge. Id. ¶ 123. Specifically, she found that “Plaintiff’s

conduct was extremely serious” because it “was technically a crime,” because Plaintiff had

repeated the conduct even after having been stopped by APD Officers on February 26, because

Plaintiff apparently attempted to mislead Amtrak conductors during both incidents, and because

Plaintiff (as a Sergeant) was a “supervisory law enforcement officer.” Id. ¶ 125. Ball found

“that Plaintiff’s version of events was not credible” given the “multiple witness statements and

police reports” contradicting it. Id. ¶ 126. Ball considered Plaintiff’s otherwise good

employment history, but concluded that it did not warrant a penalty reduction. Id. ¶ 127. Ball

also noted as a potential mitigating factor that some Amtrak conductors apparently allowed

Plaintiff to ride the train without paying, which “could have confused Plaintiff into believing that

an Amtrak policy entitled law enforcement to courtesy rides.” Id. ¶ 128. However, Ball

reasoned that any confusion “should have [been] cleared up on February 26, when the policy was

explained to her,” and that in any event the confusion “could not explain her attempts to deceive

the Amtrak conducts” during both incidents. Id. Ball did not find any similar recent cases

Page 4 of 15 involving “supervisors making untruthful statements during OPR investigations or being stopped

multiple time[s] by an external police agency for unlawful conduct.” Id. ¶ 129.

After Plaintiff was presented with the charges, she appealed them to USCP’s Disciplinary

Review Board Panel. Id. ¶¶ 131, 134. During the appeal proceedings, Plaintiff admitted that

APD Officers had in fact told her that riding without a ticket was unlawful. Id. ¶ 137. She also

presented evidence from a neurologist, Dr. Reed. Id. ¶ 134. Based on “Plaintiff’s past medical

records, an old MRI, and Plaintiff’s representations to him that she did not remember the

February 26, 2014 incident,” Dr. Reed characterized that lack of recollection as a “[l]ong

amnesic episode . . . that could have represented transient global amnesia” and may have been

related to Plaintiff being “under a lot of stress, depression, anxiety, and poor sleep” at the time.

Id. ¶ 160. Ultimately, the Panel upheld both the charges against Plaintiff and the penalties

recommended by DRO Ball. Id. ¶ 138–39. In addition to the grounds set forth in Ball’s

recommendation, the Panel also noted that Plaintiff’s admission that APD Officers had warned

her that ticketless riding was a crime meant that she had not been truthful in telling the

Investigator that she had never received any such warning. Id. ¶ 141.

Plaintiff then appealed her penalty recommendation to USCP Chief of Police Kim C.

Dine. Id. ¶¶ 8, 142. She did not contest the charges themselves but argued that the

recommendation and the Panel “failed to properly consider evidence of [her] mental condition”

and otherwise did not properly account for all four relevant factors. Id. ¶¶ 143–44. Chief Dine

denied the appeal for reasons similar to those in the penalty recommendation and Panel decision.

Id. ¶¶ 146–51. In particular, he noted Plaintiff’s untruthfulness to the Investigator about APD

warning her, and stated that he “did not believe that Plaintiff was truthful when she told OPR that

she had no recollection” of the February 14, 2014 incident. Id. ¶ 148. Chief Dine likewise did

Page 5 of 15 not credit Plaintiff’s claim that she suffered from amnesia, noting that all the doctors who had

examined Plaintiff found that “her neural examination was ‘from head to toe normal’ and her

supervisors did not observe any memory difficulties,” including on February 14. Id. He also

declined to consider Plaintiff’s statement in her appeal that she “had not taken the train without

paying since May 17, 2014” as a mitigating factor because it “was contradicted by Plaintiff’s

Statements to [the] Investigator.” Id. ¶ 149. Chief Dine therefore recommended to the Capitol

Police Board that Plaintiff be terminated, and the Board agreed and approved the termination

effective August 24, 2015. Id. ¶¶ 154–56.

After her termination, Plaintiff submitted requests for Counseling and Mediation with the

Office of Compliance pursuant to Section 402 of the Congressional Accountability Act, alleging

that she was terminated based on race, sex, national origin, color, disability, and age, and denied

FMLA leave. Id. ¶ 157. That mediation ended on March 28, 2016, and Plaintiff brought this suit

on June 20, 2016. Id. ¶¶ 157–58; see Compl., ECF No. 1. In 2019, the court granted in part and

denied in part Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint. See Order, ECF

No. 27; Amended Order, ECF No. 30; Niles v. U.S. Capitol Police,

(D.D.C.

Apr. 25, 2019).

II. LEGAL STANDARD

Summary judgment is appropriate where there is no disputed genuine issue of material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex, 477

U.S. at 322–23. “A genuine issue of material fact exists if the evidence, ‘viewed in a light most

favorable to the nonmoving party,’ could support a reasonable jury’s verdict for the non-moving

party.” Brooks v. Grundmann,

(D.C. Cir. 2014) (citing Hampton v. Vilsack,

(D.C. Cir. 2012)). Federal Rule of Civil Procedure 56 “mandates the entry

of summary judgment, after adequate time for discovery and upon motion, against a party who Page 6 of 15 fails to make a showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex,

.

Thus, “a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.”

.

III. ANALYSIS

A. Disability discrimination

The Congressional Accountability Act extends certain ADA protections to legislative

branch employees, including USCP officers. See

(a). The court evaluates ADA

claims under the burden-shifting framework established by McDonnell Douglas Corp. v. Green,

(1973). To make a prima facie case of discrimination under the ADA, a plaintiff

must show that (1) she was disabled within the meaning of the ADA, (2) she was qualified for

the position at issue with or without a reasonable accommodation, and (3) she suffered an

adverse employment action because of her disability. Giles v. Transit Emp. Fed. Credit Union,

(D.C. Cir. 2015). A person is disabled under the ADA if she has a physical or

mental impairment that substantially limits one or more of her major life activities, has a record

of such an impairment, or has been regarded as having such an impairment. See

(1)(A)–(C).

Plaintiff’s prima facie case of disability discrimination fails at the first step: She has

failed to present sufficient evidence that she was disabled within the meaning of the ADA.

Plaintiff cites only to the three doctors’ reports she solicited in 2014 through 2016. See Pl.’s

Opp. to Def.’s MSJ at 9, ECF No. 55. But none of the reports show that Plaintiff has or had an

impairment that substantially limits one or more of her major life activities, much less that she

has been regarded as having that impairment or has a record of it. Dr. Reed’s report only

speculated that Plaintiff’s inability to recall the events of February 26, 2014 “could have Page 7 of 15 represented transient global amnesia” without reaching that conclusion, specifically noting that

further episodes would necessitate “differential diagnoses,” ECF No. 58-19 at PDF p. 6—that is,

gathering additional information to ascertain the medical cause of the memory loss, see

Diagnosis and differential diagnosis, 3 Mod. Sci. Evidence § 21:40 (2022-2023 Edition).

Likewise, Dr. Geary only noted that any potential “differential diagnosis would include transient

global amnesia; short-term memory loss related to severe stress, depress, anxiety; [and]

nonconvulsive status epileptics”—without determining whether Plaintiff actually suffered from

any of those conditions. ECF No. 58-20 at PDF p. 4. And Dr. Porter similarly went only as far

as stating that Plaintiff “may have suffered from episodic problems with her recall” that “are

notable in patients with cognitive impairments such as dementia, but are also seen in normal

individuals,” especially those experiencing “stress, depression, and sleep deprivation.” ECF No.

58-23 at PDF p. 3.

Moreover, all three doctors’ reports confirm that Plaintiff had only one claimed instance

of memory loss, and that she was otherwise in good physical and neurological health. See ECF

No. 58-19 at PDF p. 6; ECF No. 58-20 at PDF p. 5–6; ECF No. 58-23 at PDF p. 2–3; see also

Pl.’s Resp. to SUMF ¶ 148 (Chief Dine “noting that Plaintiff’s doctors said that her neural

examination was ‘from head to toe normal’ and her supervisors did not observe any memory

difficulties”). At the motion to dismiss stage, the court liberally construed Plaintiff’s Amended

Complaint as alleging “more than one occasion” of memory loss, which could constitute an

impairment to major life activities like “reading, concentrating, thinking, and communication.”

See Niles,

at *4. “The burden at the summary judgment stage and at trial is

different and substantially more onerous than the pleading burden.” Nanko Shipping, USA v.

Alcoa, Inc.,

(D.C. Cir. 2017). Because Plaintiff has failed to meaningfully

Page 8 of 15 substantiate any such impairment, she has failed to meet her burden of establishing at least a

material dispute of fact as to whether she was disabled. Without that essential element, her claim

of disability discrimination cannot succeed, and the court will grant summary judgment to

Defendant. Accordingly, the court need not reach Defendant’s additional arguments regarding

whether Plaintiff’s termination was “because of” her disability. See Def.’s MSJ Memo at 26–31,

ECF No. 52-1.

B. Age and race discrimination

The Congressional Accountability Act also extends Title VII’s protections to legislative

branch employees like Plaintiff, and here, too, the McDonnell Douglas burden-shifting

framework applies.

(a)(1); see Tex. Dep’t of Cmty. Affairs v. Burdine,

, 252–53 (1981) (applying the McDonnell Douglas framework in Title VII case). But in this

case, Defendant does not contest that Plaintiff has made out prima facie cases for race and sex

discrimination, instead arguing that “it has presented a valid business reason for its decision to

terminate” Plaintiff—her Rules of Conduct violations—and that she has not demonstrated that

that reason was a pretext for discrimination. Def.’s MSJ Memo at 31–32; Niles,

at *6. A plaintiff may show that an employer’s stated reason for the employment action

is a pretext for discrimination by either: (1) producing evidence suggesting that the employer

treated other employees of a different race or sex “more favorably in the same factual

circumstances”; or (2) producing evidence suggesting that “the employer is making up or lying

about the underlying facts that formed the predicate for the employment decision.” Brady v. Off.

of Sergeant at Arms,

(D.C. Cir. 2008).

Plaintiff attempts to make the first kind of showing by identifying other USCP employees

of a different race or sex who, she argues, were treated more favorably despite being similarly

situated. To be similarly situated, the plaintiff and the potential comparator must be “charged Page 9 of 15 with offenses of comparable seriousness,” and “all of the relevant aspects of [their] employment

situation [must be] nearly identical.” Burley v. Nat’l Passenger Rail Corp.,

(D.C. Cir. 2015) (quotations omitted). “Factors that bear on whether someone is an appropriate

comparator include the similarity of the plaintiff’s and the putative comparator’s jobs and job

duties, whether they were disciplined by the same supervisor, and, in cases involving discipline,

the similarity of their offenses.”

As the court has already noted, the plaintiff “bears the

burden of coming forward with affirmative comparator evidence.” Niles,

at

*7.

Plaintiff contends that she has identified twelve comparators, to whom the parties refer

anonymously by abbreviated titles and numbers:

(1) PFC29: a white male Private First Class charged with Conduct Unbecoming and

given a 14-day suspension after being evasive with another police department during

a traffic stop, Def.’s Resp. to Pl.’s Statement of Material Facts in Dispute ¶¶ 2–7;

(2) PFC17: a white female Private First Class charged with Conduct Unbecoming and

given a 3-day suspension after yelling at another driver and breaking their door

handle after a traffic accident,

¶¶ 8–14;

(3) PFC22: a white male Private First Class charged with Conduct Unbecoming and

given a 14-day suspension after being investigated for taking items from a

convenience store despite his credit card being declined, and resisting direction from

the store employees and another police department for him to properly pay for the

items,

¶ 15–25;

Page 10 of 15 (4) DC01: a white male management official charged with Conduct Unbecoming and

demoted after failing to disclose a romantic relationship with a subordinate officer,

¶¶ 26–33;

(5) PFC13: a Black male Private First Class charged with Conduct Unbecoming and

given a warning after a dangerous traffic violation,

¶¶ 34–40;

(6) PFC15: a Black male Private First Class charged with Conduct Unbecoming and

given a 1-day suspension after deliberately shouldering into another officer in the

hallway,

¶¶ 41–47;

(7) PFC26: a white male Private First Class charged with Conduct Unbecoming and

given 10-day and 7-day suspensions, plus removal from a certain detail, for

threatening, demeaning, and aggressive behavior with his team and multiple

unauthorized vehicle stops,

¶¶ 48–53;

(8) SGT03: a white female Sergeant charged with Truthfulness in 2003 after lying about

attending a meeting, whose recommended penalty of termination was reduced

pursuant to a settlement, and who was charged with Conduct Unbecoming and

demoted in 2015 after providing a photo of a firearm left in a bathroom in the Capitol

Visitor’s Center to the media,

¶¶ 54–63;

(9) LT01: a Black male Lieutenant charged with Conduct Unbecoming and given a 7-day

suspension after getting into a confrontation with another officer,

¶¶ 64–70;

(10) CPT01: a white female Captain charged with Conduct Unbecoming and given a

7-day suspension after keeping unauthorized copies of documents from a prior OPR

investigation,

¶¶ 71–78;

Page 11 of 15 (11) LT03: a white female Lieutenant charged with Conduct Unbecoming and given a

3-day suspension after disclosing details of an OPR investigation through

unauthorized channels,

¶¶ 79–86;

(12) PFC27: a white male Private First Class charged with Conduct Unbecoming and

given 30 days of suspension over 6 months after failing to disclose a previously

unreported DUI,

¶¶ 87–92.

Plaintiff argues that these “comparators that show a pattern and practice of the Department to

give lenient punishments for similar activity to employees outside of Plaintiff’s protected

classes.” Pl.’s Opp. to Def.’s MSJ at 10.

In denying Defendant’s motion to dismiss, the court noted that Plaintiff may have

“difficulties . . . [in] locating appropriate comparators,” and that prediction has proved prescient.

See Niles,

at *7. While the twelve disciplined USCP employees Plaintiff

proffers as comparators share some commonalities with her, each is meaningfully distinct in one

or more of “the relevant aspects of [their] employment situation”—including their “jobs and job

duties, whether they were disciplined by the same supervisor, and . . . the similarity of their

offenses.” Burley,

. Consequently, none of the twelve other employees were

similarly situated enough to be an appropriate comparator for the discipline Plaintiff received

here.

Courts in this district have routinely recognized that “employees and supervisors

necessarily possess different job functions and responsibilities” and are therefore not similarly

situated. Clarke v. Washington Metro. Area Transit Auth.,

(D.D.C.

2012), aff’d,

(D.C. Cir. 2013); White v. Tapella,

(D.D.C.

2012). In addition, Defendant reports that “generally speaking, supervisors are held to [a] higher

Page 12 of 15 standard” than other USCP employees. Pl.’s Resp. to Def.’s SUMF ¶ 47. That makes all of the

non-supervisor, Private First Class comparators—seven of the twelve employees identified—

differently situated from Plaintiff by virtue of her supervisory position as a Sergeant.

Plaintiff has also failed to show that any of the twelve comparators were disciplined by

the same supervisor as her. She points to “no record evidence whatsoever” that they share “the

same chain of command.” Anyaso v. United States Capitol Police,

(D.D.C. 2014). At most, Plaintiff notes that the DRO assigned to recommend the charge and

penalty against her, Scharon Ball, was also assigned to five of her proposed comparators: PFC22,

PFC15, SGT03, CPT01, and LT03. See Pl.’s Opp. to Def.’s MSJ at 12–14. But DROs do not

supervise USCP officers, or even have the power to impose disciplinary penalties; their role is

limited to making a recommendation which must then be approved by the Deputy General

Counsel and Bureau Commander. See Pl.’s Resp. to Def.’s SUMF ¶¶ 43, 46, 51–53. As a result,

the common DRO does not demonstrate that the “individuals involved in [the] disciplinary

process with the power to grant or deny a [penalty]” were the same. Burley,

; see Ladson v. George Washington Univ.,

, 67 (D.D.C. 2016) (concluding

that a fellow police officer was not “a comparator to Plaintiff because he was not supervised by

[the same] Chief”). In other words, Plaintiff has not identified a common supervisor with any of

her proposed comparators.

Beyond the different institutional positions held by Plaintiff and her proposed

comparators, the conduct underlying their respective penalties is also different. The offenses

need not match exactly, of course, so long as they are of comparable seriousness. Burley,

. But even framing Plaintiff’s charges in general terms—(1) repeated failure to pay

for services (2) despite having been warned about its illegality, plus (3) untruthfulness with the

Page 13 of 15 personnel investigating those incidents—none of the proposed comparators’ conduct is a

sufficient match. Many of the other officers’ offenses, like PFC13’s traffic violation or PFC15’s

bumping into another officer in the hallway, were not “of even arguably comparable

seriousness.”

. Only one of the other officers, SGT03, also faced a Truthfulness

charge, and that was for an incident more than a decade removed from her Conduct Unbecoming

charge. Def.’s Resp. to Pl.’s Statement of Material Facts in Dispute ¶¶ 54–63. And only one

other officer, PFC22, had conduct involving taking something without paying for it, but that was

a single instance and he was not also charged with a Truthfulness violation.

¶¶ 15–25. 1 In

sum, although some of the twelve other officers were charged with some offenses comparable to

some of Plaintiff’s charges, none were charged with all. Accordingly, none is an appropriate

comparator, and Plaintiff has not met her burden to supply evidence calling into question

whether Defendant’s otherwise valid reasons for terminating her were pretexts for

discrimination.

1 Plaintiff asserts that several of the other twelve officers could have been charged with untruthfulness but were not—presumably because of their favored race or sex. Pl.’s Opp. to Def.’s MSJ at 12–14. But OPR’s investigators only sustain charges against officers when they find that “a preponderance of the evidence shows that a violation occurred.” Pl.’s Resp. to Def.’s SUMF ¶¶ 34–37. Plaintiff does not identify such a finding for any of the other officers. See Def.’s Reply at 6 n.5, 9–10, 12, 14–15.

Page 14 of 15 IV. CONCLUSION

Plaintiff has not sufficiently shown that there is a genuine disputed issue of material fact

with respect to essential elements of both her ADA and Title VII claims. Consequently, the

court will GRANT Defendant’s Motion for Summary Judgment, ECF No. 52. An Order will

accompany this Memorandum Opinion.

Date: June 8, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 15 of 15