 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 15, 2013                 Decided June 28, 2013

                        No. 12-5119

                  LATAUNYA HOWARD,
               APPELLANT/CROSS-APPELLEE

                            v.

 THE OFFICE OF THE CHIEF ADMINISTRATIVE OFFICER OF THE
       UNITED STATES HOUSE OF REPRESENTATIVES,
              APPELLEE/CROSS-APPELLANT


                Consolidated with 12-5120


       Appeals from the United States District Court
               for the District of Columbia
                   (No. 1:09-cv-01750)


    Ross A. Nabatoff argued the cause for appellant. With
him on the briefs was Stanley M. Brand. Andrew D. Herman
entered an appearance.
    Kerry W. Kircher, General Counsel, U.S. House of
Representatives, argued the cause for appellee. With him on
the briefs were William Pittard, Deputy General Counsel,
Christine Davenport, Senior Assistant Counsel, and Todd B.
Tatelman, Mary Beth Walker, and Eleni M. Roumel, Assistant
Counsel.
                                2
    Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
    Dissenting opinion filed by Circuit Judge KAVANAUGH.
     EDWARDS, Senior Circuit Judge: This appeal requires the
court to consider whether the Speech or Debate Clause of the
Constitution, U.S. CONST. art. I, § 6, cl. 1, bars this lawsuit by
LaTaunya Howard against her former employer, the Office of
the Chief Administrative Officer (“OCAO”) of the United
States House of Representatives, for alleged racial
discrimination and retaliation in violation of the
Congressional Accountability Act (“CAA”), 2 U.S.C.
§§ 1301-1438. Section 404(2) of the CAA creates a cause of
action for covered employees in the legislative branch to sue
in federal court for violations of the statute. Article I, section
6, in turn, provides that “for any Speech or Debate in either
House, [Senators and Representatives] shall not be questioned
in any other Place.” And “[t]he Speech or Debate Clause
operates as a jurisdictional bar when the actions upon which a
plaintiff [seeks] to predicate liability [are] legislative acts.”
Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13
(D.C. Cir. 2006) (en banc) (quotations, citations, and
alterations omitted) appeal dismissed and cert. denied sub
nom. Office of Senator Mark Dayton v. Hanson, 550 U.S. 511
(2007).
     The CAA “does nothing to a Member’s Speech or Debate
Clause immunity.” Id. at 8. However, “a Member’s personal
office may be liable under the [CAA] for misconduct
provided that the plaintiff can prove his case without
inquiring into legislative acts or the motivation for legislative
acts.” Id. at 17 (quotations and citation omitted). This is so
because “[t]he Speech or Debate Clause . . . does not prohibit
                               3
inquiry into illegal conduct simply because it has some nexus
to legislative functions, or because it is merely related to, as
opposed to part of, the due functioning of the legislative
process.” Id. at 10 (quotations and citations omitted).
     In this case, we must determine whether the Speech or
Debate Clause requires dismissal of Ms. Howard’s suit under
the CAA. Ms. Howard, who is African American, was hired
by the OCAO as Deputy Budget Director on April 15, 2003;
she was promoted to Budget Director in 2006. In January
2009, the position of Budget Director was abolished and Ms.
Howard was involuntarily transferred to the position of Senior
Advisor. On April 14, 2009, Ms. Howard was terminated by
the OCAO for alleged insubordination. She commenced this
action in District Court on September 15, 2009. Her
complaint alleged “that: (1) her termination was based on her
race; (2) her transfer from Budget Director to Senior Advisor
constituted a demotion, which was based on her race; (3) she
received less pay, by approximately $22,000 per year, than
the Caucasian Senior Advisors; and (4) her termination was
motivated in part by retaliatory animus stemming from her
prior complaints to human resources regarding pay disparities
and other issues.” Howard v. Office of Chief Admin. Officer of
U.S. House of Representatives, 793 F. Supp. 2d 294, 297
(D.D.C. 2011). The first, second, and fourth of these claims
are before us on appeal.
     The OCAO moved to dismiss the action in the District
Court on the ground that Ms. Howard could not prove her
claims without inquiring into matters protected by the Speech
or Debate Clause. Id. at 295. The District Court denied the
OCAO’s motion as to Ms. Howard’s claim that her transfer
was an unlawful demotion based on her race. Id. at 308.
However, the District Court held that Ms. Howard’s claims
that her termination from the OCAO was motivated by her
race and by retaliatory animus must be dismissed “because
                              4
they cannot proceed without inquiry into actions –
specifically, communications – that are shielded by the
Speech or Debate Clause.” Id. On January 4, 2012, the
District Court granted Ms. Howard’s Motion to Certify for
Interlocutory Appeal, Howard v. Office of Chief Admin.
Officer of U.S. House of Representatives, 840 F. Supp. 2d 52
(D.D.C. 2012); and on April 13, 2012, this court granted Ms.
Howard’s Petition for Permission to Appeal, In re Howard,
2012 U.S. App. LEXIS 7593 (D.C. Cir. Apr. 13, 2012). We
have jurisdiction over Ms. Howard’s appeal and the OCAO’s
cross-appeal pursuant to 28 U.S.C. § 1292(b).
     Both sides agree that the disputed adverse actions – Ms.
Howard’s alleged demotion and termination – are not
legislative acts. Hence, there is no jurisdictional bar to this
action. The question in this case is whether Ms. Howard’s
claims are precluded or limited by the evidentiary,
testimonial, or non-disclosure privileges that emanate from
the Speech or Debate Clause. See Fields, 459 F.3d at 14
(explaining that even “[w]hen the Clause does not preclude
suit altogether, it still protect[s] Members from inquiry into
legislative acts or the motivation for actual performance of
legislative acts” (quotations and citation omitted)).
     It is clear that, based on the parties’ submissions to the
District Court, Ms. Howard’s demotion claim is not
precluded. Daniel Beard, who was the Chief Administrative
Officer (“CAO”), submitted an affidavit (“Beard Affidavit”)
to the District Court stating three reasons to support Ms.
Howard’s demotion. As we explain below, it is undisputed
that the first two reasons and part of the third reason do not
implicate the Speech or Debate Clause. The remaining reason
is that Ms. Howard communicated to the Committee on
Appropriations information that reflected her own preferences
regarding the House budget rather than the views of the CAO.
An attempt to quarrel with this allegation might well create a
                              5
Speech or Debate Clause problem, but Ms. Howard stipulates
that she communicated her personal views. Her only claim is
that this is not what motivated her alleged demotion. In other
words, Ms. Howard contends that she must “be afforded a fair
opportunity to show that [the OCAO’s] stated reason [for her
involuntary transfer] was in fact pretext.” McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973). The District Court
correctly held that “[i]f, under Fields, Howard’s transfer was
not a legislative act, and if Howard can prove that the
[O]CAO’s justification for her transfer was not the real reason
behind it – without probing whether, how, or why she actually
communicated with committee staff regarding the budget and
the appropriations bill – then the Speech or Debate Clause
should present no bar to her claim.” Howard, 793 F. Supp. 2d
at 307.
     Likewise, Ms. Howard’s termination claim is not
precluded. The Beard Affidavit asserts that Ms. Howard was
terminated because she refused to complete a task she was
assigned. Ms. Howard concedes that she did not complete the
task, but says that the reason was that she did not have the
necessary computer, data access, or staff support. There is an
obvious credibility dispute between the parties. However,
whether Ms. Howard had the resources and support needed to
complete the task to which she was assigned concerns non-
legislative matters and, thus, does not implicate the Speech or
Debate Clause.
     In sum, based on the record before us, we hold that the
Speech or Debate Clause does not require the dismissal of this
action. Ms. Howard may proceed with her all of her claims
under the CAA, subject to the applicable strictures of the
Speech or Debate Clause. Accordingly, we affirm in part and
reverse in part the judgment of District Court and remand the
case for further proceedings consistent with this opinion.
                               6
                     I. BACKGROUND
A. Facts
     Pursuant to House Rule II(4)(a), the CAO “shall have
operational and financial responsibility for functions as
assigned by the Committee on House Administration.” In
addition, pursuant to House Rule II(4)(b), the CAO is, inter
alia, responsible for providing semiannual financial and
operational reports to the Committee on House
Administration. The OCAO avers that the CAO supports the
House Committees on Appropriations and House
Administration by providing budget figures, financial
analyses, and financial projections. See Beard Aff. ¶ 6,
reprinted in Joint Appendix (“J.A.”) 93. Of particular
relevance to this case, the CAO is responsible for the
Government Contributions Account (the “Account”), “which
encompasses the employer-paid portion of [various
employment taxes and benefits for all House employees, and]
is one of the largest line items in the annual legislative branch
appropriations bill.” Id. ¶ 9, reprinted in J.A. 95. The parties
agree that the OCAO engages in legislative activities,
including many concerning the Account, but that not all of its
activities are legislative. The parties also agree that Daniel
Beard was the CAO at all times relevant in this case.
     LaTaunya Howard avers that she received the highest or
second-highest overall rating in her performance evaluations
when she served as Deputy Budget Director and Acting
Budget Director. In 2006, she was promoted to the position of
“Budget Director” – also known as “Director of the Budget
Management Directorate” – after a Caucasian male was
offered and declined the position. Ms. Howard alleges that
she continued to receive high performance ratings throughout
her tenure at the OCAO, although she disputed an
“unjustifiably lower” evaluation on her last pre-termination
evaluation. Pl.’s First Am. Compl. ¶ 29, reprinted in J.A. 14.
                              7
     The OCAO asserts that, as Budget Director, Ms. Howard
had major legislative responsibilities, including: preparing a
budget for the House of Representatives for upcoming fiscal
years; working cooperatively with other non-OCAO offices in
the House, including the Committees on Appropriations and
House Administration, leadership offices, and others; and
communicating budget information to the CAO, the
Committees on Appropriations and House Administration,
and other employees of the OCAO. Beard Aff. ¶ 8, reprinted
in J.A. 94.
     The parties differ in their explanations as to the reasons
for Ms. Howard’s involuntary transfer. Ms. Howard alleges
that, in January 2009, she was informed that the CAO was
reorganizing the OCAO. Most relevantly, the CAO abolished
the Budget Management Directorate (and the position of
“Budget Director”) and gave Ms. Howard the new title of
Senior Advisor, reporting to Deputy CAO Ali Qureshi. She
further alleges that she was told the position of Budget
Director was being eliminated and that she would shift her
focus to “analytical work for CAO programs” and would no
longer have managerial responsibilities. Pl.’s First Am.
Compl. ¶¶ 35-36, reprinted in J.A. 15. The OCAO’s Answer
admits that Howard was told that the budget directorate was
being abolished. Answer ¶ 35, reprinted in J.A. 38. Ms.
Howard further avers that she was told that her reassignment
was not “the result of performance issues.” Decl. of LaTaunya
Howard ¶ 2, reprinted in J.A. 157.
     By contrast, the Beard Affidavit avers that three factors
led to Ms. Howard’s transfer:
    (a)      “Ms. Howard lacked the interpersonal skills to
             be an effective manager”;
    (b)      Ms. Howard “had analytical skills that were
             useful to the [OCAO]”; and
                               8
    (c)      “Ms. Howard made it difficult for [the CAO] to
             effectively support the legislative activities of
             the Committees on Appropriations and House
             Administration by not sharing information with
             other employees of the [OCAO] who assisted
             [the CAO] on budget matters, by not listening to
             other employees of the [OCAO] who assisted
             [the CAO] on budget matters, and by
             communicating       to   the    Committee      on
             Appropriations and others information that
             reflected her own budgetary preferences and
             views rather than the views of the CAO.”
Beard Aff. ¶ 13, reprinted in J.A. 97-98.
    The OCAO asserts that following her involuntary transfer
to Senior Advisor, Ms. Howard was responsible for
implementing and analyzing various House policies and
programs and for carrying out other duties as assigned by the
CAO, including an assignment concerning the Government
Contributions Account. See id. ¶ 12, reprinted in J.A. 96-97.
     The parties’ contentions regarding the Account
assignment diverge. Ms. Howard alleges that on February 13,
2009, the Deputy CAO asked her to work with a colleague “to
set up the projection file for the [Account].” Pl.’s First Am.
Compl. ¶ 38, reprinted in J.A. 16. In its Answer, the OCAO
confirmed this. Answer ¶ 38, reprinted in J.A. 39. Ms.
Howard avers that her colleague was uncooperative and
refused to help her complete the assignment. See Pl.’s First
Am. Compl. ¶ 43, reprinted in J.A. 16. Ms. Howard also
avers that she did not have access to the database necessary to
complete her task. Id. ¶ 57, reprinted in J.A. 18-19. She
further alleges that she repeatedly attempted to speak with the
Deputy CAO about her difficulties in getting her colleague to
work with her and her inability to gain access to the electronic
files she needed to complete the assignment. Id. ¶¶ 43-60,
                               9
reprinted in J.A. 16-19. Ms. Howard alleges that she was
terminated for insubordination based on her failure to
complete this assignment, despite her efforts to do so. Id.
¶ 64, reprinted in J.A. 20.
     The Beard Affidavit describes Howard’s 2009
assignment involving the Account differently, calling it a
“one-time, catch-up assignment that resulted from the fact
that the Account had not been analyzed and reconciled for
several months, i.e., during a period when Ms. Howard, as
Budget Director, was responsible for that work.” Beard Aff.
¶ 12, reprinted in J.A. 97. The OCAO and the Committees on
Appropriations and House Administration needed this
analysis and reconciliation completed to prepare for March
2009 budget hearings. See id. The Beard Affidavit states that,
“[b]etween January and April 2009, Mr. Qureshi repeatedly
instructed Ms. Howard to complete the work on the . . .
Account which he had assigned to her and, throughout this
period, Ms. Howard repeatedly refused.” Id. ¶ 14, reprinted in
J.A. 98. The Beard Affidavit further asserts that “Ms. Howard
had the necessary computer and data access to enable her to
complete this task.” Id.
       On April 14, 2009, the OCAO terminated Ms. Howard
“because she had repeatedly refused to analyze and reconcile the
. . . Account as . . . [she had been] repeatedly instructed.” Id.
B. The Decision Below
   As noted above, the District Court allowed Ms. Howard’s
demotion claim to proceed in a limited manner, holding that
    Howard may seek to show that her communications with
    the [House committees] did not prompt her transfer by
    showing that such an explanation is contradicted by [the
    OCAO’s] other representations or not reflected in her
    performance evaluations or other documentation. But she
                              10
    may not attempt to show that those communications
    never took place or that they were other than as [the
    OCAO] described them. Nor may she in any other way
    probe the nature, extent or substance of those exchanges.
    This will likely make it more difficult to prove pretext,
    but that is the result that the Constitution requires.
Howard, 793 F. Supp. 2d at 308.
    At the same time, the District Court dismissed Howard’s
termination and retaliation claims, accepting the Beard
Affidavit’s account of the events surrounding Howard’s
discharge and concluding that
    dismissal of Howard’s termination claims reflects . . .
    that the Clause protects internal legislative branch
    communications regarding specific legislative activities
    that are themselves within the scope of the Clause.
Id. at 311. Because the District Court found that Howard
could not prove that she was not insubordinate without
delving into protected legislative activities, it dismissed her
termination and retaliation claims. Id. at 308-11.
                       II. ANALYSIS
A. Standard of Review
    Because this case comes to us on an appeal from a
motion to dismiss, we review the District Court decision de
novo. This is true regardless of whether the OCAO’s motion
is characterized as one to dismiss for lack of jurisdiction
under Rule 12(b)(1), FED. R. CIV. P. 12(b)(1), Herbert v. Nat’l
Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992), or as one to
dismiss for failure to state a cause of action under Rule
12(b)(6), FED. R. CIV. P. 12(b)(6), Atherton v. D.C. Office of
Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).
                               11
B. The Speech or Debate Clause
     In furtherance of separation of powers, the Framers
sought to “provide some practical security for each [branch of
government], against the invasion of the others.” THE
FEDERALIST NO. 48 (James Madison). The Speech or Debate
Clause serves “to insure that the legislative function the
Constitution allocates to Congress may be performed
independently” without subjecting the legislature to
“accountability before a possibly hostile judiciary.” Eastland
v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975). The
Supreme Court has, “[w]ithout exception . . . read the Speech
or Debate Clause broadly.” Id. at 501. Indeed, the Court has
held that the protections of the Clause apply “not only to a
Member but also to his aides insofar as the conduct of the
latter would be a protected legislative act if performed by the
Member himself.” Gravel v. United States, 408 U.S. 606, 618
(1972).
     The Clause protects legislators from liability for all
activities within the “sphere of legitimate legislative activity,”
Eastland, 421 U.S. at 503, including all activities that are
    an integral part of the deliberative and communicative
    processes by which Members participate in committee
    and House proceedings with respect to the consideration
    and passage or rejection of proposed legislation or with
    respect to other matters which the Constitution places
    within the jurisdiction of either House.
Gravel, 408 U.S. at 625. “Legislative activity” is broadly
construed, encompassing not only anything “generally done in
a session of the House by one of its members in relation to the
business before it,” id. at 624 (quotations and citation
omitted), but also “conduct at committee hearings,
preparation of committee reports, authorization of committee
publications and their internal distribution, and issuance of
                              12
subpoenas concerning a subject on which legislation could be
had.” McSurely v. McClellan, 553 F.2d 1277, 1284-85 (D.C.
Cir. 1976) (quotations and citations omitted); see also, e.g.,
id. at 1296-97 (“[T]he subsequent use of . . . documents by the
committee staff in the course of official business is privileged
legislative activity.”). The Clause also protects staff members’
preparations for legislative activities. See, e.g., Gravel, 408
U.S. at 628-29.
     As a general matter, the Speech or Debate Clause affords
three distinct protections: (a) an immunity from “a civil or
criminal judgment against a Member because [of] conduct
[that] is within the sphere of legitimate legislative activity,”
Doe v. McMillan, 412 U.S. 306, 312 (1973) (quotations and
citation omitted); (b) an evidentiary privilege, which, in
relevant part, bars a party in a civil suit from “[r]evealing
information as to a legislative act” for use against a protected
party, United States v. Helstoski, 442 U.S. 477, 490 (1979);
and (c) a testimonial and non-disclosure privilege that
prevents a protected party from being compelled to answer
questions about legislative activity or produce legislative
materials, see, e.g., United States v. Rayburn House Office
Bldg., 497 F.3d 654, 659-60 (D.C. Cir. 2007).
C. The Fields Plurality Opinion Framework: Applying
   the Speech or Debate Clause in Employment Cases
     In 1995 Congress enacted the CAA, 2 U.S.C. § 1301 et
seq., which extends to certain legislative branch employees
the protections of a number of remedial labor and
employment statutes, including Title VII of the Civil Rights
Act of 1964. See id. § 1302(a)(2); 42 U.S.C. § 2000e et seq.
Among other protections, the CAA bars discrimination based
on race, 2 U.S.C. § 1311(a)(1), and includes an anti-retaliation
provision, 2 U.S.C. § 1317(a). The statute applies to any
employee of the House of Representatives, but explicitly
declines to waive any protections afforded by the Speech or
                              13
Debate Clause. See id. §§ 1301(3)(A), 1413; see also Fields,
459 F.3d at 8 (CAA does not waive immunity or privileges
afforded by the Speech or Debate Clause).
     In Fields, the court, sitting en banc, offered a framework
for determining when the Speech or Debate Clause requires
dismissal of suits brought under the CAA. Unfortunately, the
disposition in Fields includes no clear majority opinion. The
plurality opinion authored by Judge Randolph, who was
joined by then-Chief Judge Ginsburg, Judge Henderson, and
Judge Tatel, states that “a Member’s personal office may be
liable under the [CAA] for misconduct provided that the
plaintiff can prove his case without inquiring into legislative
acts or the motivation for legislative acts.” 459 F.3d at 17
(quotations and citation omitted). The opinion by Judge
Rogers concurs in part, but expresses the view that the court
should have left “open the question of how the Clause may
limit evidence offered by parties in CAA litigation and
whether the role of the Member’s personal office as the
defendant under the CAA affects the application of the
Clause.” Id. at 18 (Rogers, J., concurring in part and in the
judgment). The opinion by Judge Brown, who was joined by
Judge Sentelle and Judge Griffith, concurs in the judgment,
but expresses a relatively narrow view of the Speech or
Debate Clause. Id. at 21-33. (Brown, J., concurring in the
judgment).
    Judge Tatel’s separate concurring opinion aptly explains
the principal differences between Judge Randolph’s plurality
opinion and Judge Brown’s concurring opinion:
    Judge Randolph’s opinion for the court holds that
    because neither of the cases before [the court in Fields]
    rests on legislative acts, we have no basis for dismissing
    them. Judge Randolph then points out that the Speech or
    Debate Clause may preclude some evidence, that in
    many employment cases it may preclude the very
                               14
    evidence upon which plaintiffs seek to rely, and that if it
    does, the suit may not proceed. [Judge Brown’s]
    concurrence focuses on whether the defendant functions
    as a Member’s alter ego, arguing that wide variations in
    Speech or Debate Clause protection hinge on the answer
    to that question.
Id. at 18-19 (Tatel, J., concurring). Although there are four
different opinions in Fields, none would embrace a result
different from the judgment that we reach in this case. Our
discussion of Fields focuses on Judge Randolph’s plurality
opinion because, at least in the context of this case, it reflects
the broadest view of the Speech or Debate Clause.
     As noted in the Fields plurality opinion, there are two
bases for the application of the Speech or Debate Clause to
congressional employment actions. First, some employment
decisions themselves constitute legislative acts and are
therefore immune from suit under the Clause. Id. at 9-10
(plurality opinion). The parties in this case agree that neither
Ms. Howard’s demotion nor her termination were themselves
legislative acts.
     Second, the Fields plurality opinion states that “[w]hen
the [immunity component of the] Clause does not preclude
suit altogether,” the evidentiary, testimonial, and non-
disclosure privileges “still protect[] Members from inquiry
into legislative acts or the motivation for actual performance
of legislative acts.” Id. at 14 (quotations, citations, and
alterations omitted). In “many cases,” the Fields plurality
opinion notes, it may be impossible to explore the reasons for
the challenged employment action without discussing
legislative acts and this may lead to the dismissal of CAA
claims. Id. at 15-16; see also id. at 20 (Tatel, J., concurring)
(non-disclosure protection under Clause could “preclude[]
litigation” of some CAA claims). The question in this case is
whether Ms. Howard can pursue her claims under the CAA
                              15
without inquiring into legislative acts or the motivation for
legislative acts.
     In many employment discrimination cases, proof of
“pretext” will be crucial to the success of the claimant’s case.
See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 (1981); McDonnell Douglas, 411 U.S. at 804. Once
a plaintiff has made out a prima facie case of discrimination
and the employer has offered a nondiscriminatory explanation
for its actions, the plaintiff must “demonstrate that the
proffered reason was not the true reason for the employment
decision.” Burdine, 450 U.S. at 256. In order to show that an
employer’s stated reason for a contested action was in fact a
pretext for proscribed discrimination, an employee may need
to adduce evidence regarding the employer’s work practices.
In the context of cases arising under the CAA, this may
require a complaining employee to seek evidence that
implicates legislative matters, something that the Speech or
Debate Clause may preclude.
    The Fields plurality opinion addresses the challenges
faced by a complaining party who seeks to prove pretext in
support of a charge of discrimination under the CAA:
         Suppose a plaintiff sues . . . claiming her discharge
    violated the [CAA]. Suppose further that she is able to
    make out a prima facie case of discrimination . . . . If the
    employing office produces evidence – by affidavit, for
    example – that the personnel decision was made because
    of the plaintiff’s poor performance of conduct that is an
    integral part of “the due functioning of the [legislative]
    process,” . . . then for the plaintiff to carry her burden of
    persuasion, she must “demonstrate that the proffered
    reason was not the true reason for the employment
    decision” . . . . In many cases, the plaintiff would be
    unable to do so without “draw[ing] in question” the
    legislative activities and the motivations for those
                              16
     activities asserted by the affiant – matters into which the
     Speech or Debate Clause prohibits judicial inquiry. . . .
Fields, 459 F.3d at 15-16 (citations omitted). The Fields
plurality opinion explains that, in order to invoke the Speech
or Debate Clause in such cases,
     the employing office should include with [its] evidence
     an affidavit from an individual eligible to invoke the
     Speech or Debate Clause recounting facts sufficient to
     show that the challenged personnel decision was taken
     because of the plaintiff’s performance of conduct
     protected by the Speech or Debate Clause. . . . The
     affidavit must indicate into what “legislative activity” or
     into what matter integral to the due functioning of the
     legislative process the plaintiff’s suit necessarily will
     inquire.
          With that submission, the district court must then
     determine whether the asserted activity is in fact
     protected by the Speech or Debate Clause. If it is, the
     action most likely must be dismissed . . . . We need not
     decide today whether a case in which the plaintiff uses
     evidence unrelated to legislative acts – such as . . .
     evidence that at the time of discharge the [employer]
     offered a different reason for the employment action
     from the one alleged in the affidavit – to demonstrate that
     the defendant’s legislative explanation is pretext requires
     more questioning of the defendant’s legislative motives
     than the Speech or Debate Clause allows. We merely
     note that a plaintiff who seeks to prevail by quarreling
     with the defendant’s statements about activity protected
     by the Speech or Debate Clause must fail.
Id. at 16-17.
                               17
     It is noteworthy that the Fields plurality opinion does not
suggest that the District Court must accept as true all
allegations contained in an affidavit from an individual
eligible to invoke the Speech or Debate Clause; rather it
instructs the District Court to determine whether the conduct
that forms the basis of the plaintiff-employee’s suit is, in fact,
protected by the Clause.
     Importantly, nothing in the Fields plurality opinion
prevents an employee who is pursuing an action under the
CAA from having “a fair opportunity to show that [the
employer’s] stated reason [for the disputed adverse action]
was in fact pretext.” McDonnell Douglas, 411 U.S. at 804.
Given the strictures of the Speech or Debate Clause, a “fair
opportunity” means that the complaining party may pursue
her claim to the fullest, so long as she can prove her case
“without inquiring into legislative acts or the motivation for
legislative acts.” Fields, 459 F.3d at 17 (quotations and
citation omitted).
     If the lawsuit does not inquire into legislative motives or
     question conduct part of or integral to the legislative
     process, or if the district court determines that the
     asserted activity is not in fact part of or integral to the
     legislative process, then the case can go forward.
Id. at 16.
     The OCAO suggests that an employee should be
precluded from seeking to prove pretext once an individual
who is eligible to invoke the Speech or Debate Clause has
submitted an affidavit that offers a nondiscriminatory
explanation for the contested employment action. Nothing in
Fields or in any decision issued by the Supreme Court
supports this view of the Speech or Debate Clause. Indeed,
the only reasonable reading of the applicable precedent
indicates that a plaintiff-employee may pursue her claims
                               18
even after her employer has filed a Fields affidavit, provided
that she does not contest her employer’s conduct of protected
legislative activities and that she prove her allegations of
pretext using evidence that does not implicate protected
legislative matters.
     In United States v. Brewster, for example, the Supreme
Court allowed prosecution of a former Senator who accepted
a bribe in exchange for legislative action. See 408 U.S. 501,
525-29 (1972). The Court explained that the act of taking the
bribe was not legislative in nature, as the government could
prove bribery without inquiring into whether the Senator had
actually done the legislative deed the bribe was intended to
induce. See id. The Court concluded that “[t]he only
reasonable reading of the Clause, consistent with its history
and purpose, is that it does not prohibit inquiry into activities
that are casually or incidentally related to legislative affairs
but not a part of the legislative process itself.” Id. at 528.
Fields says nothing to the contrary.
D. The OCAO’s “Jurisdictional” Challenge
     Before the District Court, the OCAO filed a motion
asserting that Ms. Howard’s complaint should be dismissed
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction. The OCAO has renewed this contention on
appeal. The arguments offered by the OCAO are misguided.
     “The Speech or Debate Clause operates as a jurisdictional
bar when the actions upon which [a plaintiff seeks] to
predicate liability [are] legislative acts.” Fields, 459 F.3d at
13 (quotations, citation and alterations omitted). As noted
above, the parties in this case agree that the disputed adverse
actions – Ms. Howard’s alleged demotion and termination –
are not legislative acts. Therefore, there is no jurisdictional
bar to this action. Accordingly, we will construe OCAO’s
motion as one to dismiss pursuant to Rule 12(b)(6) for failure
                               19
to state a claim. See, e.g., Fraternal Order of Police Dep’t of
Corr. Labor Comm. v. Williams, 375 F.3d 1141, 1143-44
(D.C. Cir. 2004) (construing a Rule 12(b)(1) motion as one
arising under 12(b)(6) where the court had jurisdiction to
consider the case).
     The OCAO’s jurisdiction argument relies on its
contention that “when you marry the non-disclosure privilege
. . . with the likelihood that many of these complaints are
going to have to be dismissed at this early stage, in effect
what you’re talking about is another form of immunity.” Tr.
of Oral Arg. at 32. In other words, the OCAO seeks to have
this court create a new basis for immunity under the Speech
or Debate Clause. We decline the invitation. See Brewster,
408 U.S. at 528 (explaining that because “[t]he Speech or
Debate Clause does not prohibit inquiry into illegal conduct
simply because it has some nexus to legislative functions,” a
defendant “could not . . . obtain[] immunity from prosecution
by asserting that the matter being inquired into was related to
the motivation for his [legislative actions]”).
     The OCAO has advanced no credible argument to
support the dismissal of Ms. Howard’s complaint under Rule
12(b)(6). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations
omitted). Ms. Howard’s complaint easily satisfies this
standard. The OCAO seems to think it is entitled to a
dismissal because Ms. Howard may face difficulties in
proving her case without delving into protected legislative
activities. See Br. of OCAO at 50-56. This is not a basis for
dismissal of a case under Rule 12(b)(6). A court must
                              20
“assess[] the legal feasibility of the complaint, but [may] not
weigh the evidence that might be offered to support it.”
Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150,
155 (2d Cir. 2006).
     Under applicable law, to get to trial, a plaintiff like Ms.
Howard must “produce[] sufficient evidence that, when taken
together, could lead a reasonable jury to conclude that the
[employer’s] proffered reason [for an adverse employment
action] was pretext for racial discrimination.” Evans v.
Sebelius, No. 11-5120, 2013 WL 2122072, at *3 (D.C. Cir.
May 17, 2013). Ms. Howard may not be able to meet this
standard because of the strictures of the Speech or Debate
Clause – which will bar her from inquiring into legislative
motives or question conduct part of or integral to the
legislative process – but this remains to be seen as the case
proceeds.
E. Ms. Howard’s Demotion Claim
    For the reasons indicated below, we find that the District
Court had no basis under Rule 12(b)(1) or Rule 12(b)(6) to
dismiss Ms. Howard’s claim that her involuntary transfer was
a demotion based on her race or to grant judgment in favor of
the OCAO on this issue. We agree with the District Court that
Ms. Howard will be able to pursue this claim without probing
protected legislative activities. Because the District Court
allowed this claim to proceed, we affirm its decision and deny
OCAO’s cross-appeal.
     Ms. Howard alleges that at the time of her demotion, she
was told that “a decision was made to ‘do away with’ the
Budget Director title,” Pl.’s First. Am. Compl. ¶ 35, reprinted
in J.A. 15, and Appellee’s Answer confirms this account.
Answer ¶ 35, reprinted in J.A. 38. Ms. Howard further alleges
that when she asked directly, she was told that her forced
transfer was not the result of performance issues. Decl. of
                              21
LaTaunya Howard ¶ 2, reprinted in J.A. 157. The OCAO
does not dispute this assertion.
     The Beard Affidavit submitted by the OCAO offers three
completely different reasons for Ms. Howard’s forced
transfer. The first justification in the Beard Affidavit states
that “Ms. Howard lacked the interpersonal skills to be an
effective manager.” Beard Aff. ¶ 13, reprinted in J.A. 97. The
second justification states that Ms. Howard “had analytical
skills that were useful to the [OCAO].” Id. The parties agree
that Ms. Howard’s analytical and managerial abilities do not
implicate protected legislative matters. See Tr. of Oral Arg. at
60-61 (OCAO conceding that these justifications are non-
legislative).
     The third asserted justification in the Beard Affidavit
includes three parts. It states that Ms. Howard was
involuntarily transferred because she “made it difficult for
[the CAO] to effectively support the legislative activities of
the Committees on Appropriations and House Administration
     by not sharing information with other employees of
      the [OCAO] who assisted [the CAO] on budget
      matters,

     by not listening to other employees of the [OCAO]
      who assisted [the CAO] on budget matters, and

     by communicating to the Committee on
      Appropriations and others information that reflected
      her own budgetary preferences and views rather than
      the views of the CAO.”
Beard Aff. ¶ 13, reprinted in J.A. 97-98. Ms. Howard
concedes that when she pursues her case before the District
Court, she will be barred by the Speech or Debate Clause
from disputing the accuracy of the OCAO’s assertion that she
                               22
advanced her own budgetary views rather than those of the
CAO. Were she to do this, she would be “quarreling with [the
CAO’s] statements about activity protected by the Speech or
Debate Clause,” which the Fields plurality opinion explicitly
prohibits. 459 F.3d at 17.
     Nonetheless, Ms. Howard surely may offer evidence that
does not inquire into legislative acts or the motivation for
legislative acts in order to demonstrate that the OCAO’s
alleged reasons for her demotion are pretextual. For example,
Ms. Howard may seek to prove pretext by showing that the
reasons that the OCAO offered when she was demoted – that
her position was being eliminated and that there were no
underlying performance deficiencies – differ from the reasons
that CAO asserts in the Beard Affidavit. See, e.g., Geleta v.
Gray, 645 F.3d 408, 413 (D.C. Cir. 2011) (noting that
“shifting and inconsistent justifications are probative of
pretext” (quotation and citation omitted)); Czekalski v. Peters,
475 F.3d 360, 367 (D.C. Cir. 2007) (an employee may pursue
her discrimination claim where she “proffered evidence from
which a jury could have concluded that each of the”
contemporaneous reasons her employer gave “was false, and
that [the employer’s] subsequent clarifications represented
nothing more than back-pedaling” such that “a jury could
have concluded that the employer’s stated reason was
pretextual” (quotation and citation omitted)). By the same
token, the OCAO may be able to show that its
contemporaneous explanations for Ms. Howard’s alleged
demotion can be reconciled with the assertions made in the
Beard Affidavit. These are matters to be addressed by the
District Court in the first instance. The main point here is that
the Speech or Debate Clause does not preclude Ms. Howard
from pursuing her charge of race discrimination based on her
alleged demotion.
                              23
F. Howard’s Termination and Retaliation Claims
     For the reasons indicated below, we find that the District
Court had no basis under Rule 12(b)(1) or Rule 12(b)(6) to
dismiss Ms. Howard’s claims that her termination from the
OCAO was motivated by her race and by retaliatory animus
or to grant judgment in favor of the OCAO on these issues.
Ms. Howard will be able to pursue these claims without
probing protected legislative activities. Because the District
Court dismissed these claims, we reverse its decision, grant
Ms. Howard’s appeal, and remand the case to allow these
claims to proceed.
     Ms. Howard avers that she was terminated for her failure
to complete an assignment she describes as “set[ting] up the
projection file for the [Account].” Pl.’s First. Am. Compl.
¶ 38, reprinted in J.A. 16. She alleges that she was not given
“access to the [necessary] database,” id. at ¶ 57, reprinted in
J.A. 18-19, to complete the task, and that the OCAO
employee with whom she was supposed to work was
uncooperative and prevented her from completing the
assignment. See id. at ¶¶ 38-64, reprinted in J.A. 16-20. Ms.
Howard thus alleges that she was set up to fail and that her
April 2009 discharge “was improperly based upon race.” Id.
at ¶ 66, reprinted in J.A. 20.
     The Beard Affidavit takes issue with Ms. Howard’s
account of the events leading to her discharge. The affidavit
states that:
         Between January and April 2009, Mr. Qureshi
    repeatedly instructed Ms. Howard to complete the work
    on the Government Contributions Account which he had
    assigned to her and, throughout this period, Ms. Howard
    repeatedly refused. Ms. Howard had the necessary
    computer and data access to enable her to complete this
    task. On or about April 14, 2009, Mr. Qureshi, with my
                              24
    approval, informed Ms. Howard that her employment
    was terminated because she had repeatedly refused to
    analyze and reconcile the Government Contributions
    Account as I, through Mr. Qureshi, had repeatedly
    instructed her to do.
Beard Aff. ¶ 14, reprinted in J.A. 98.
     In sum, the CAO contends that Ms. Howard had access to
all of the necessary files and resources and was terminated for
insubordination. Ms. Howard, in turn, asserts that she lacked
access to the necessary resources and support and was then
terminated for failures caused by the OCAO. This is a classic
“he-said-she-said” dispute, calling into question the
credibility of Ms. Howard, Mr. Beard, and other members of
the OCAO staff. The dispute has nothing whatsoever to do
with protected legislative activities.
     The Beard Affidavit’s account of the reasons for Ms.
Howard’s termination certainly does not implicate legislative
activities. To the contrary, the assertions in the Beard
Affidavit regarding Ms. Howard’s discharge relate to Ms.
Howard’s failure to perform an assigned job, not the
particular duties associated with the job or the justifications
for the assignment. OCAO asserts that the duties assigned to
Ms. Howard would have involved protected legislative
activities had she undertaken her assignment. This is
irrelevant, however, because Ms. Howard has not raised any
issue about those duties, nor does she propose to probe any
aspect of the Account assignment or the motives giving rise to
the assignment. Rather, Ms. Howard claims that she was
assigned to perform a job and then denied the necessary
resources and support to complete the work.
    At Oral Argument, the OCAO conceded, as it must, that
an investigation into activities in proximity to the legislative
process does not necessarily require a probe into protected
                               25
legislative activity. See Tr. of Oral Arg. at 48; see also
Brewster, 408 U.S. at 528. For example, a file clerk assigned
to deliver legislative documents from one office to another,
where all deliveries arrive in sealed envelopes, could be
terminated for failing to deliver the envelopes as assigned. If
the dispute surrounding the file clerk’s termination concerned
instructions given to the clerk, the times of the pick-ups and
deliveries of his cargo, his attitude, his attire, what he said
during his delivery route, or his race – and did not concern the
contents of the envelopes – then any inquiry into the cause of
his termination could proceed without implicating the Speech
or Debate Clause. Even though the file clerk’s assigned tasks
may be seen as importantly related to legislative activities, the
tasks themselves are not legislative activities that implicate
the Speech or Debate Clause.
     Similarly, a food service worker whose principal
responsibilities are for food preparation and service, as in
Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984), may inquire
into the reasons for his termination without implicating any
protected legislative activities. The Speech or Debate Clause
would not bar the worker’s challenge to his termination, even
if he worked in the House of Representatives’ dining room.
     Ms. Howard’s situation is similar to these examples.
Therefore, she may pursue her termination and retaliation
claims. As the Court noted in Gravel, conduct that is merely
related to or taken in support of protected legislative activities
is not itself protected when relief can be afforded “without
proof of a legislative act or the motives or purposes
underlying such an act.” 408 U.S. at 621. We find nothing in
Ms. Howard’s termination and retaliation claims that
implicate the Speech or Debate Clause. Her allegations
concern access to resources and staff support. The details of
her work assignment are not at issue. Therefore, there is little
doubt that she can be afforded relief on her claims “without
                               26
proof of a legislative act or the motives or purposes
underlying such an act.” Id. The credibility issues that have
been raised in connection with Ms. Howard’s termination and
retaliation claims are properly left to the District Court in the
first instance, as is routinely done in cases involving charges
of race discrimination in employment.
                     III. CONCLUSION
     For the reasons discussed above, we affirm the judgment
of the District Court in part, reverse in part, and remand to
allow all of Ms. Howard’s claims to proceed.
     KAVANAUGH, Circuit Judge, dissenting: Article I’s
Speech or Debate Clause provides that “for any Speech or
Debate in either House,” Senators and Representatives “shall
not be questioned in any other Place.” U.S. CONST. art. I, § 6,
cl. 1.    The Clause is an important element of the
Constitution’s separation of powers, protecting the
independence of the Article I Legislature from encroachment
by the Article II Executive or the Article III Judiciary. The
Clause’s text, history, and precedent can create significant
obstacles when a criminal or civil case is brought in an Article
III federal court against a Member of Congress or
congressional office.

     This case involves a suit under the Congressional
Accountability Act of 1995. That Act created a cause of
action for congressional employees who claim unlawful
discrimination by congressional employing offices. 2 U.S.C.
§ 1408. An “employing office” includes, among other
congressional offices, (i) the personal office of a Member of
the House of Representatives or of a Senator, (ii) a House or
Senate committee, and (iii) any other office with the authority
to make personnel decisions about congressional employees.
Id. § 1301(9).

     Under the Act, employees may file complaints with
Congress’s Office of Compliance and, if successful, may
obtain all the remedies they could obtain in a federal court
discrimination suit.    Id. §§ 1311(b), 1404(1), 1405(a).
Importantly, because the Office of Compliance process occurs
within the Legislative Branch, not in an “other Place,” the
Speech or Debate Clause does not pose an issue in those
cases.

     The Act alternatively permits an employee to bring a
discrimination suit in federal district court. Id. §§ 1404(2),
                                 2
1408(a). But in those federal court suits, the Speech or
Debate Clause applies. Id. § 1413. 1

     Howard brought her discrimination suit in federal court
against the congressional Office of the Chief Administrative
Officer. The question here is how the Speech or Debate
Clause operates in employment discrimination cases brought
in federal court against congressional offices.             In
discrimination cases generally, the plaintiff employee alleges
that a certain employment action occurred because of his or
her race or sex, for example. The employer responds by
stating a neutral reason for the employment action. Then, the
employee tries to prove that the employer’s stated reason was
either not factually true or not the actual basis for the
decision, and that the decision was based on race or sex. The
employer meanwhile tries to prove that the stated reason was
factually true and was the actual basis for the decision, and
thus that the decision was not based on race or sex. See
generally Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 252-56 (1981); Brady v. Office of the Sergeant
at Arms, 520 F.3d 490, 493-95 (D.C. Cir. 2008).

     When employee plaintiffs sue congressional offices in
federal court, difficulty arises if the employer’s stated reason
for the employment action in question – for the firing,
demotion, or the like – is the plaintiff’s performance of
legislative activity. Difficulty arises in those circumstances
because the Speech or Debate Clause, as construed by the
Supreme Court, establishes a privilege that as relevant here
(i) prevents use of evidence of legislative activities against
Members and (ii) protects Members from being forced to

    1
       The employee’s choice to proceed through Congress’s Office
of Compliance or in federal court is irrevocable, meaning the
plaintiff cannot go back if unhappy with the initially chosen forum.
See 2 U.S.C. § 1404.
                               3
disclose information about legislative activities. See United
States v. Helstoski, 442 U.S. 477, 489-90 (1979); Gravel v.
United States, 408 U.S. 606, 616 (1972).

      In Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1
(D.C. Cir. 2006), the en banc Court of eight judges considered
the application of the Speech or Debate Clause to
discrimination suits brought under the Congressional
Accountability Act. For four judges, Judge Randolph’s
opinion concluded that, when the defendant employer states
that the challenged employment action was based on
legislative activity protected by the Speech or Debate Clause,
the case “most likely must be dismissed.” Id. at 16 (plurality
opinion of Randolph, J.). For three other judges, Judge
Brown’s opinion likewise stated that, assuming congressional
offices could assert the protections of the Speech or Debate
Clause as a majority of the en banc Court had separately held,
then lawsuits “that will inevitably necessitate an inquiry into”
protected legislative activity would be barred. Id. at 30 n.3
(Brown, J., concurring in the judgment). So seven of the
eight Judges in Fields indicated support for a rule that would
usually require dismissal in employment discrimination cases
when the employer’s stated reason for the action involves the
plaintiff’s performance of legislative activity.

     Here, as the parties and the majority opinion accept, we
should follow Judge Randolph’s Fields opinion. Under that
opinion, when the employer’s stated reason involves the
plaintiff’s performance of legislative activity, the plaintiff
may not dispute the factual accuracy of the employer’s stated
reason. See id. at 16-17 (plurality opinion of Randolph, J.).
A question left open in Fields was whether the plaintiff could
nonetheless dispute whether the defendant’s stated reason was
the actual basis for the defendant’s decision or was just a
                               4
pretext for discrimination. See id. This case requires us to
resolve that open question.

     Under Fields, all agree that the initial task in a case
where an employing office has submitted an affidavit
invoking the Speech or Debate Clause is to determine whether
the reason asserted by the employer for the employment
action encompasses legislative activity protected by the
Speech or Debate Clause. In this case, that inquiry is
straightforward. The reasons asserted by the defendant Chief
Administrative Officer for the adverse employment actions
included Howard’s inadequate performance of legislative
activity. On the demotion claim, the Chief Administrative
Officer stated that he transferred Howard in part because
Howard had communicated her personal preferences
regarding the Legislative Branch’s budget to congressional
committees, rather than communicating the preferences of the
Office of the Chief Administrative Officer. J.A. 97-98. On
the termination claim, the Chief Administrative Officer stated
that he ultimately terminated Howard’s employment because
Howard had refused to perform budget analysis for use by
those congressional committees. J.A. 98. As this Court has
previously recognized, a staff member’s activities of this sort
are legislative activities that fall squarely within the ambit of
the Speech or Debate Clause. See McSurely v. McClellan,
553 F.2d 1277, 1284-87 (D.C. Cir. 1976); see also Gravel,
408 U.S. at 628-29 (Speech or Debate Clause protects
preparations for committee hearings and internal
communications related to legislative activity).

     Once we conclude (as we must here) that the employer’s
asserted reason for the decision involves legislative activity
protected by the Speech or Debate Clause, I believe (unlike
the majority opinion) that the case must come to an end. I do
not see how a plaintiff employee such as Howard can attempt
                                5
to prove either that she in fact adequately performed her
legislative activities or that her performance of legislative
activities was not the actual reason for the employment action
without forcing the employer to produce evidence that she did
not adequately perform her legislative activities and that her
poor performance of legislative activities was the actual
reason for the employment action. But the Speech or Debate
Clause protects the defendant from being forced to produce
such evidence of legislative activities. See United States v.
Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir. 1995)
(distinguishing voluntary production of protected evidence
from production that “is necessary”); see also United States v.
Swindall, 971 F.2d 1531, 1546 (11th Cir. 1992) (permissive
inference violated Speech or Debate Clause where it
“virtually compel[led] Swindall to justify his legislative
actions”).

      Trying to thread the needle and avoid dismissal of
Howard’s claims, the majority opinion says that, although a
plaintiff per Fields may not challenge the factual accuracy of
the employer’s stated reason for the decision, a plaintiff may
still try to show that the employer’s stated reason – namely,
the employee’s poor performance of legislative activities –
was a pretext for discrimination and not the actual reason for
the employment decision.            But that thread-the-needle
approach simply won’t work to avoid the Speech or Debate
Clause problem. In response to such evidence and arguments
from the plaintiff, the defendant necessarily will have to prove
at trial that the plaintiff’s unsatisfactory performance of
legislative activities was the actual reason for the decision –
that is, was not a pretext. In the real world of trial litigation,
that in turn will obviously require the defendant to produce
evidence about the plaintiff’s allegedly shoddy performance
of those legislative activities. See Burdine, 450 U.S. at 258
(“[T]he defendant . . . retains an incentive to persuade the trier
                               6
of fact that the employment decision was lawful. Thus, the
defendant normally will attempt to prove the factual basis for
its explanation.”). But that is precisely what the Speech or
Debate Clause protects congressional defendants from being
forced to do – namely, from being forced to produce evidence
of legislative activities in federal court.

    Put simply, the majority opinion’s test is inconsistent
with Speech or Debate Clause principles because it
necessarily will require congressional employers to either
produce evidence of legislative activities or risk liability.
Under the Constitution’s Speech or Debate Clause, Article I
congressional employers cannot be put to this kind of choice
by an Article III federal court.

      Notably, as we explained in Fields, employees in
congressional offices who suffer discrimination are not
without a remedy. Rather, “a plaintiff whose suit cannot
proceed in federal court by operation of the Speech or Debate
Clause still may avail himself of the Accountability Act’s
administrative complaint procedure” through Congress’s
Office of Compliance. Fields, 459 F.3d at 17. The Speech or
Debate Clause does not apply there because that process takes
place within Congress, not in an “other Place.” U.S. CONST.
art. I, § 6, cl. 1. We are informed that numerous congressional
employees have availed themselves of that Office of
Compliance process and have obtained remedies.

     One final note: The majority opinion’s approach in this
case not only is inconsistent with the Speech or Debate
Clause, but also creates a major real-world problem. Under
the majority opinion’s approach, plaintiffs may be encouraged
to forgo the Office of Compliance process in Congress and
may be seduced instead into federal court. Once in federal
court, however, a plaintiff will find that the suit is seriously
                                7
hampered because, as Fields concluded and the majority
opinion here acknowledges, the plaintiff cannot take issue
with the employer’s factual assertions about the plaintiff’s
poor performance of legislative activities. A plaintiff saddled
with a stipulation that she was really lousy at performing her
legislative duties is not a plaintiff who is likely to even get to
trial, much less to win, in a discrimination case. So the
majority opinion’s promise of a federal court forum in these
circumstances is a fairly empty promise. And the false hope
offered by the majority opinion will undoubtedly deprive
discrimination victims who file in federal court of remedies
that they may well have obtained through the Office of
Compliance process in Congress – where, for example,
employees could dispute the alleged factual basis for the
employer’s decision and thereby give themselves a real shot
at prevailing on their discrimination claims. I would
encourage counsel for would-be plaintiffs in these kinds of
cases to carefully consider the difficulty of a federal court suit
– even under the majority opinion’s approach – before they
advise clients to irrevocably bypass the Office of Compliance
option, where they would not face such extraordinary hurdles
to prevailing.

                              ***

    Based on the Speech or Debate Clause, I would hold that
a district court must dismiss a discrimination suit against a
congressional employing office if the employer’s stated
reason for the employment decision is the plaintiff’s
performance of legislative activities. Therefore, I would
dismiss Howard’s demotion and termination claims. I
respectfully dissent.
