                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   LATAUNYA HOWARD,

                          Plaintiff,

                         v.

   OFFICE OF THE CHIEF                                       Civil Action 09-01750 (HHK)
   ADMINISTRATIVE OFFICER OF THE
   UNITED STATES HOUSE OF
   REPRESENTATIVES,

                          Defendant.


                          MEMORANDUM OPINION AND ORDER

       Plaintiff LaTaunya Howard brings this action against the Office of the Chief

Administrative Officer (“CAO”) of the U.S. House of Representatives,1 alleging that the CAO

violated the Congressional Accountability Act of 1995 (the “Accountability Act”), 2 U.S.C.

§ 1301 et seq., by demoting and then firing her on the basis of her race and in retaliation for

engaging in protected activity. Before the Court is the CAO’s motion to dismiss three counts of

Howard’s complaint [#16]. The CAO’s motion, which argues that Howard cannot prove her

claims without inquiring into matters protected by the Speech or Debate Clause of the

Constitution, raises weighty questions regarding the interaction of that provision with the

Accountability Act itself. Upon consideration of the motion, the opposition thereto, the record of

this case, and the hearing held before the Court on January 21, 2011, the Court concludes that the

motion must be granted in part and denied in part.

       1
                For the sake of simplicity, the Court will refer to the defendant in this action as
“the CAO,” although the defendant is technically not the CAO himself but rather the legal entity
of his office. See 2 U.S.C. §§ 1301(9), 1408(b).
                                       I. BACKGROUND

A.      The Congressional Accountability Act of 1995

        The Accountability Act extends to certain legislative branch employees the protections of

a number of federal remedial statutes, including Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. See 2 U.S.C. § 1311(a)(1) (prohibiting “discrimination based on . . . race,

color, religion, sex, or national origin, within the meaning of section 703 of the Civil Rights Act

of 1964”). The Accountability Act also includes an anti-retaliation provision that prohibits

intimidation, reprisal, or discrimination against a covered employee because that employee has

opposed or reported any practice made unlawful by the Act. 2 U.S.C. § 1317(a). The Act applies

to, inter alia, any employee of the House of Representatives or the Senate. See id. § 1301(3)(A),

(B). The Act waives sovereign immunity for claims brought thereunder, Fields v. Office of Eddie

Bernice Johnson, U.S. Congress, 459 F.3d 1, 8 (D.C. Cir. 2006) (en banc), but expressly

withholds waiver of “the privileges of any Senator or Member of the House of Representatives

under article I, section 6, clause 1,” 2 U.S.C. § 1413, better known as the Speech or Debate

Clause. This statutory framework has been in place throughout the events that constitute the

subject matter of this litigation.

B.      Factual Background

        The CAO oversees the daily operations and infrastructure of the House. As part of these

responsibilities, the CAO helps the House Committees on Appropriations and House

Administration prepare the annual appropriations bill that funds the operations of the legislative

branch. Howard, an African-American woman, was hired by the CAO as Deputy Budget

Director in April of 2003. Am. Compl. ¶ 3. From December of 2004 through early 2005,


                                                 2
Maureen Longstaff, the Budget Director, took maternity leave, during which time Howard served

as Acting Budget Director, receiving a temporary salary increase. Am. Compl. ¶ 6. In December

of 2005, Longstaff announced her intention to resign the following June, prompting a search for a

new Budget Director. Am. Compl. ¶¶ 12–13.

       Howard applied and was interviewed for the Budget Director position. She was among

three candidates, and the only internal candidate, to be rated as highly qualified for the position.

Am. Compl. ¶ 14. While Howard was on leave following surgery, however, the position was

offered to a Caucasian male candidate. He declined, and the search was reopened. Am. Compl.

¶¶ 15–16. Howard then met with the director of human resources to express concern that she

might have been passed over because of her medical leave absence. In June of 2006, Howard

was offered and accepted the Budget Director position. Am. Compl. ¶ 19. Upon becoming

Budget Director, Howard also began to assume some of the responsibilities of the Budget

Officer, a related but separate position. Am. Compl. ¶ 21.

       In February of 2007, Dan Beard was appointed as the new CAO, and commenced a

reorganization of the office. Am. Compl. ¶ 23. The next month, Howard was informed that the

Budget Officer title was being abolished, but that she was still expected to perform the Budget

Officer tasks she had previously taken on. Am. Compl. ¶ 24. Howard became concerned that

other employees were not subject to similar requests, and expressed her concerns to a co-worker.

The CAO Administrative Counsel commenced an investigation, which, Howard asserts,

concluded that a round of raises conducted in June of 2007 had resulted in a racial pay disparity.

Howard avers that she was told that she would, as a result, receive a promotion to a higher grade

and six months’ worth of back pay. Am. Compl. ¶¶ 25–26. In November of 2007, Howard


                                                  3
received a performance evaluation from Deputy Associate Administrator Kathy Purdue that

Howard felt was in certain respects “unjustifiably lower” than the previous year’s evaluation.

She complained, prompting an investigation, the resolution of which was to have Howard stop

reporting to Purdue as of February 2008. Am. Compl. ¶¶ 29–30.

       In January of 2009, Howard attended a meeting regarding the CAO’s budget

organization. She was told that a decision had been made to “do away with” the Budget Director

title, and that she would become a Senior Advisor to Deputy CAO Ali Qureshi. Am. Compl.

¶ 35. After the change, she was told, her focus would shift from budget matters to analytical

work, she would no longer have managerial responsibilities, and her pay would not change. Am.

Compl. ¶ 36. Howard later discovered that she was one of three Senior Advisors to Qureshi, the

other two of whom were Caucasian males who each earned $22,000 more than she did. Am.

Compl. ¶ 47.

       In February, Qureshi asked Howard to work with Budget Analyst Elizabeth Nuti, a

Caucasian female, on the Government Contributions account. Howard avers that, rather than

cooperate, Nuti asked Howard to perform the task in her stead. Howard appealed to Qureshi for

clarification regarding her responsibilities, and attempted to meet with both him and Nuti, but

was repeatedly rebuffed. Am. Compl. ¶¶ 38–40, 43–46. In mid-March, after further efforts by

Howard to ascertain her role in the Government Contributions project, Qureshi asked her to

complete the necessary tasks by March 20. Am. Compl. ¶¶ 49–50. Howard continued to attempt

to meet with Qureshi, and eventually expressed concerns regarding her interactions with him to a

human resources representative. Am. Compl. ¶¶ 51–53.




                                                4
       Howard and Qureshi eventually met in late March. Howard avers that Qureshi was

unable to explain why he was opposed to meeting with Howard and Nuti to go over the

assignment. Am. Compl. ¶¶ 55–56. Shortly thereafter, Qureshi, and later Nuti, represented to

Howard that she would have the computer access necessary to complete her tasks. She found,

however, that she did not, and informed both Qureshi and Nuti of that fact. She also emailed a

set of suggestions to Nuti. Am. Compl. ¶¶ 58–61. In early April, however, Qureshi emailed

Howard to threaten disciplinary action if she did not perform the suggestions that she had

previously made to Nuti. Am. Compl. ¶¶ 62. A week later, he inquired whether she had done so;

she responded that she was still unable to access the necessary files on the office computers. One

week after that, Howard’s employment was terminated.

       Howard subsequently completed the counseling and mediation process required by the

Act, see Am. Compl. Ex. A (End of Mediation Notice, June 18, 2009), and commenced this

action, alleging 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.


                                          II. ANALYSIS

       The CAO now moves for dismissal of Howard’s claims regarding her transfer and

termination under Federal Rule of Civil Procedure 12(b)(1).2 The CAO presents a single basis


       2
               Under Rule 12(b)(1), a defendant may move to dismiss a complaint, or any
portion thereof, for lack of subject-matter jurisdiction. FED . R. CIV . P. 12(b)(1); see Kokkonen v.

                                                  5
for this motion: that Howard cannot succeed in a suit based on these claims without straying into

territory protected by the Speech or Debate Clause of the Constitution. Because this argument

presents complex and novel questions of law, some doctrinal background is necessary.

A.      The Speech or Debate Clause

        1.      Purpose and Doctrine

        Article I, section 6 of the Constitution provides that “Senators and Representatives shall

. . . for any speech or debate in either House . . . not be questioned in any other place.” U.S.

CONST ., art. I, § 6. This provision, known as the Speech or Debate Clause, serves to protect

important separation-of-powers principles by shielding legislators from “intimidation by the

executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383

U.S. 169, 181 (1966). With this purpose in mind, the Supreme Court has applied the Clause

beyond its literal terms, holding that it precludes judicial inquiry into acts 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 v. United States, 408 U.S. 606, 625 (1972). The Court has




Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts of limited
jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . .”). In
response to such a motion, the plaintiff must establish that the Court has subject-matter
jurisdiction over the claims in the complaint. See Shuler v. United States, 531 F.3d 930, 932
(D.C. Cir. 2008). If the plaintiff is unable to do so, the Court must dismiss the action. Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 7 Wall. 506,
514 (1868)). When resolving a motion made under Rule 12(b)(1), a court may consider material
beyond the allegations in the plaintiff’s complaint. Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253–54 (D.C. Cir. 2005).

                                                    6
likewise applied the Clause’s protections to parties other than senators and representatives

themselves, extending it to congressional aides and committees. See Gravel, 408 U.S. at 616–22.

       The Supreme Court has been careful, however, not to “extend the [Clause’s] privilege

beyond its intended scope, its literal language, and its history, to include all things in any way

related to the legislative process.” United States v. Brewster, 408 U.S. 501, 516 (1972). Thus,

the Clause “‘does not prohibit 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.’” Fields v. Office of Eddie Bernice Johnson, U.S.

Congress, 459 F.3d 1, 10 (D.C. Cir. 2006) (en banc) (quoting Brewster, 408 U.S. at 514, 528)

(internal citations omitted).

       As Speech or Debate Clause doctrine has evolved, it has resulted in three distinct

protections: (1) immunity from civil or criminal liability for “conduct . . . within the ‘sphere of

legitimate legislative activity,’” Doe v. McMillan, 412 U.S. 306, 312 (1973) (quoting Gravel, 408

U.S. at 624); (2) an evidentiary privilege barring the introduction of evidence of legislative acts

against a protected party, see United States. v. Helstoski, 442 U.S. 477, 487–90 (1979); and (3) a

testimonial and non-disclosure privilege that prevents a protected party from being compelled to

answer questions about legislative activity or produce written legislative materials. See United

States v. Rayburn House Office Bldg., Room 2113, Wash., D.C. 20515, 497 F.3d 654, 659–60

(D.C. Cir. 2007) (citing Gravel, 408 U.S. at 616; Brown & Williamson Tobacco Corp. v.

Williams, 62 F.3d 408, 420 (D.C. Cir. 1995)).




                                                   7
       2.      The Speech or Debate Clause and Employment Suits

       The D.C. Circuit first addressed the role of the Speech or Debate Clause in legislative

branch employment actions in Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984). The Walker court

held that the Clause did not bar a gender discrimination suit, brought under the Equal Protection

Clause, by the manager of the House restaurant system. The court explained that because the

plaintiff performed only auxiliary, non-legislative services, her termination was not a legislative

act into which the courts were barred from inquiring. See id. at 927–32.

       Conversely, the D.C. Circuit held in Browning v. Clerk, U.S. House of Representatives,

789 F.2d 923 (D.C. Cir. 1986), that the Clause required the dismissal of a race discrimination suit

brought by the official House Reporter. Looking to Walker, the Browning court stated that, in

such cases, “the ultimate issue [is] the duties of the employee. Where the duties of the employee

implicate Speech or Debate Clause concerns, so will personnel actions respecting that

employee.” Id. at 928 (citing Walker, 733 F.2d at 930–31) (internal citation omitted); see id. at

929 (“[I]f the employee’s duties are an integral part of the legislative process . . . personnel

decisions affecting them are correspondingly legislative and shielded from judicial scrutiny.”).

Applying that test, the court concluded that the official House Reporter “plays a role that is

‘intimately cognate to the legislative process,’” making her termination a legislative act that

could not give rise to liability. Id. at 928 (quoting Walker, 733 F.2d at 931).

       Browning stood until 2006, when the D.C. Circuit issued its en banc decision in Fields v.

Office of Eddie Bernice Johnson, 459 F.3d 1. Fields was a consolidation of two Accountability

Act suits alleging unlawful termination from a Member’s office. In each case, the district court

had without explanation denied the defendant’s motion to dismiss the action on speech or debate


                                                  8
grounds. The Fields plurality (there was no majority opinion) concluded that Browning’s duty-

based test was too broad, pointing out numerous situations in which an employee with legislative

duties could be terminated for patently non-legislative reasons. See 459 F.3d at 11–12; see also

id. at 18 (Tatel, J., concurring) (“All of us agree that Browning . . . extends further than the

Speech or Debate Clause requires.”). Accordingly, the court set aside the Browning test.

       The Fields plurality then turned to the question of how the district courts should evaluate

the role of the Speech or Debate Clause in the suits at bar. The plurality concluded that neither

discrimination suit expressly predicated liability on legislative acts, but cautioned that “the fact

that [the plaintiffs] are able to plead prima facie cases under the Accountability Act without

violating the Speech or Debate Clause does not mean the Speech or Debate Clause in no way

hinders their suits.” Id. at 14. Rather, the plurality warned, a discrimination suit that did not

include direct evidence of discrimination might, under the burden-shifting scheme of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), not be able to proceed without requiring a

Member to answer questions, “in a deposition, on the witness stand, and so forth,” regarding

legislative activities. Id. The plurality explained:

       Suppose a plaintiff sues a Member’s personal office claiming her discharge violated
       the Accountability Act. Suppose further that she is able to make out a prima facie
       case of discrimination of one form or another. 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 activities asserted by the affiant — matters into which the Speech or Debate
       Clause prohibits judicial inquiry.




                                                  9
Id. at 15–16 (quoting Brewster, 408 U.S. at 516, 526 (emphasis omitted); Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981)) (alterations in original) (internal citations omitted).

        In light of this potential conflict, the plurality laid out a framework under which such

cases might proceed:

        [A]s in any other employment discrimination case, the defendant will provide
        evidence of a legitimate nondiscriminatory reason for the discharge. To invoke the
        Speech or Debate Clause, the employing office should include with this 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 affiant must have personal knowledge of the facts underlying his
        averment and otherwise must be able to assert a Member’s Speech or Debate Clause
        immunity. 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, as the failure to rebut a defendant’s evidence with
        ‘evidence . . . that the[ ] proffered justifications were mere pretext’ normally is fatal
        to a plaintiff’s discrimination allegations.

Id. at 16 (quoting Smith v. District of Columbia, 430 F.3d 450, 455–56 (D.C. Cir. 2005))

(alteration in original) (internal citations omitted).

        Having rejected Browning and articulated a narrower test for Speech or Debate protection

in employment cases, the Fields court affirmed the district court’s denials of the defendants’

motions to dismiss.3 See id. at 17. It noted, however, the narrow scope of its decision:




        3
               On remand, neither district court had occasion to further consider the speech or
debate issues raised in Fields. See Hanson v. Office of Senator Mark Dayton, No. 03-1149
(D.D.C. Feb. 11, 2009) (stipulation of dismissal); Fields v. Office of Johnson, 520 F. Supp. 2d
101 (D.D.C. 2007) (granting summary judgment for the defendant without reference to the
Speech or Debate Clause).

                                                   10
       We need not decide today whether a case in which the plaintiff uses evidence
       unrelated to legislative acts — such as direct evidence of discrimination or evidence
       that at the time of discharge the Senator 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.

       Fields has been applied only once: in Scott v. Office of Alexander, 522 F. Supp. 2d 262

(D.D.C. 2007), Representative Rodney Alexander’s former scheduler sued Alexander’s office,

alleging harassment, discrimination, retaliation and constructive discharge based on sex. See id.

at 265. Applying the framework described by the Fields plurality, the Scott court held that the

scheduler’s retaliation claim had to be dismissed.4 First, the court found that the suit did not

predicate liability on core legislative activities, thereby avoiding the Speech or Debate Clause’s

absolute immunity component. See id. at 268–69. Next, the court determined that the defendant

had, in an affidavit from the Congressman describing the impact of the plaintiff’s duties (and

errors in performing those duties) on his legislative responsibilities, asserted “legitimate,

non-retaliatory reasons for Plaintiff’s demotion that are protected from inquiry by the Speech or

Debate Clause.” Id. at 271. Finally, the Scott court concluded that, because the plaintiff had not

indicated “that there exists any evidence contrary and unrelated to the Congressman’s stated

reasons for Plaintiff’s demotion that would not require an inquiry into the legislative acts

described [in the affidavit],” the plaintiff’s retaliation claim could not succeed without



       4
               Because the defendant had moved to dismiss only this claim on Speech or Debate
Clause grounds, Scott did not address the impact of the Clause on the plaintiff’s other claims.
See Scott, 522 F. Supp. 2d at 274.

                                                 11
transgressing the boundaries of the Speech or Debate Clause and thus had to be dismissed. Id. at

272.

B.     Howard’s Discrimination and Retaliation Claims

       In seeking the dismissal of Howard’s claims regarding her transfer and termination, the

CAO argues, in effect, that this case is Scott: he concedes that Howard’s claims do not predicate

liability on core legislative acts and assumes that Howard can make out a prima facie case of

discrimination. He then offers an affidavit invoking the Speech or Debate Clause, explaining his

official responsibilities, and describing Howard’s ostensibly legislative duties and her alleged

shortcomings in carrying out those duties. Finally, he argues that Howard cannot contest the

affidavit’s description of her duties and her performance thereof without intruding into the area

protected by the Speech or Debate Clause’s non-disclosure privilege. In order to resolve these

arguments, the Court must, in accordance with Fields and Scott, determine “[w]hether Plaintiff

can prove her claim[s] . . . without inquiring into legislative acts or the motivation for

performance of legislative acts.” Scott, 522 F. Supp. 2d at 269.

       To answer that question, the Court first looks to the affidavit submitted by Dan Beard,

who was the CAO during the events at issue here.5 In it, Beard first describes the role and

responsibilities of the CAO and his office. Broadly, the affidavit asserts that the CAO has both

administrative and legislative responsibilities, the latter of which include assisting the House

Committees on Appropriations and House Administration in developing and enacting the annual

budget for the legislative branch. See Def.’s Mot. Ex. A (“Beard Aff.”) ¶¶ 5–6. As part of that


       5
               As in Scott, the CAO indicates that the affidavit is submitted for the sole purpose
of invoking the Speech or Debate Clause as described in Fields. Compare Beard Aff. ¶ 1, with
Scott, 522 F. Supp. 2d at 270 n.7.

                                                  12
task, the CAO and his office provide the committees with “detailed budget figures, financial

analyses . . . and the like.” Beard Aff. ¶ 6.6

        As described by Beard, Howard’s role as Budget Director and later as Senior Advisor was

to assist in this process. In the former position, she monitored and analyzed House spending;

prepared a budget for the House for upcoming fiscal years; liaised with the Committees on

Appropriations and House Administration, leadership offices, and other House offices; and

communicated budget information to the Committees and the CAO. Beard Aff. ¶ 8. In the latter,

she analyzed the merits of leasing versus buying furniture for the House, tallied up the monetary

savings from the “Green the Capitol” sustainability initiative, and studied the possible

implementation of a new business management strategy. Beard Aff. ¶ 12. In both positions, the

affidavit states, Howard was responsible for the Government Contributions Account, a

significant component of the annual legislative branch budget that includes taxes and benefits

paid by the House for its employees. Beard Aff. ¶¶ 9–10, 12.




        6
                 Howard takes issue with the CAO’s assertion that he and his office have
legislative duties, pointing to various publications and public documents that describe the CAO’s
operational and administrative responsibilities and some that even describe the CAO’s function
as “non-legislative.” Pl.’s Opp’n at 10 (quoting THE ALMANAC OF THE UNELECTED : STAFF OF
THE U.S. CONGRESS 2008 (Lisa Friedman ed., 21st ed. 2008)). These efforts are unpersuasive. It
is uncontested that the CAO’s office has some, even many, non-legislative responsibilities, but
that fact does not preclude it from having legislative duties as well. Likewise, broad
generalizations in books and on websites cannot rebut the CAO’s own affidavit describing his
specific responsibilities and those of his office. In any event, the ultimate issue is not the CAO’s
role in the legislative process, or even Howard’s, but rather whether proof of Howard’s claims
requires an impermissible investigation into that process. See Scott, 522 F. Supp. 2d at 269 &
n.6.

                                                 13
       Finally, the affidavit describes the CAO’s reasons for transferring and later terminating

Howard.7 Because the two actions that Howard challenges were ostensibly motivated by

different concerns, the Court will address them separately.

       1.      Transfer from Budget Director to Senior Advisor

       The Court turns first to Howard’s claim that her January 2009 transfer from Budget

Director to Senior Advisor was a discriminatory act based on her race.8 The Court concludes that

the CAO has offered a legitimate legislative justification for Howard’s transfer, but that Howard

may challenge that explanation without offending the Speech or Debate Clause by showing that it

is inconsistent with the CAO’s contemporaneous explanation for the challenged action.

               a.      Howard Cannot Challenge the Veracity of the CAO’s Explanation for
                       Her Transfer Without Probing into Legislative Conduct or
                       Motivations

       The Beard affidavit gives three reasons for Howard’s transfer from Budget Director to

Senior Advisor: (1) she lacked the interpersonal skills to be an effective manager; (2) she had

useful analytical skills; and (3) she did not share information with or listen to other CAO

employees who worked on budget matters and expressed to other House actors, including the

Committee on Appropriations, her own budgetary preferences rather than the views of the CAO.

Beard Aff. ¶ 13. The CAO asserts that the affidavit establishes conclusively that Howard was



       7
               Howard does not dispute that the CAO’s proffered reasons for the actions she
challenges are facially legitimate and non-discriminatory.
       8
                Howard terms this event a demotion; the CAO calls it a reassignment. In
adopting “transfer,” the Court draws no conclusions as to whether this event was an adverse
employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 767–68 (1998) (a Title
VII disparate-treatment claim requires a plaintiff to prove “an adverse employment action
because of race”).

                                                14
transferred from her Budget Director position because of her poor performance of duties integral

to the legislative process. Specifically, he points to the affidavit’s third reason: Howard’s

inadequate communications with other CAO employees and her unauthorized interactions with

other House actors, including the Committee on Appropriations. Howard retorts that the

affidavit does not show that she was involved in any protected legislative activity. The Court

cannot agree.

       Although the affidavit is vague as to the content of Howard’s interactions with the

Committee on Appropriations, it states that Howard communicated to the committee

“information that reflected her own budgetary preferences and views rather than the views of the

CAO.” Beard Aff. ¶ 13. The natural implication of this language — which Howard does not

dispute — is that Howard was making recommendations as to, or providing information that

would form the basis of, the composition of the House budget, which the committee was

responsible for incorporating into the next annual legislative branch appropriations bill. See

Beard Aff. ¶ 3 (describing the Committee on Appropriations).

       Consequently, the Court must conclude that Howard cannot challenge the veracity of the

CAO’s description of this activity without transgressing the bounds of the Speech or Debate

Clause. Scott illustrates why. There, the Representative justified firing his scheduler on the

grounds that she had made errors that caused him to, inter alia, miss meetings and votes. See

Scott, 522 F. Supp. 2d at 270–71. The Scott court concluded that the plaintiff could not show

that this explanation was pretextual without “refut[ing] the Congressman’s representations that

he failed to attend all or part of one or more committee meetings on account of Plaintiff’s errors,

and explor[ing] the reasons behind why the Congressman failed to attend such meetings.” Id. at


                                                 15
271. Such a showing would be impossible without inquiring into legislative activity: “whether

the Congressman missed or attended an actual vote or hearing, and the reasons why he may have

attended or missed an actual vote or hearing, are inquiries that impermissibly relate to the

legislative process.” Id.

       The same is true here. In order to challenge the veracity of the CAO’s description of her

communications with the appropriations committee, as she intends to do, Howard must show

either that these communications never occurred or that their substance was not as the CAO

portrays it. See Pl.’s Opp’n at 12 (stating Howard’s intention to show that the CAO’s

explanations for her transfer are “utter fabrications”). The Court sees no way for Howard to do

so without questioning committee personnel about, or offering evidence of, the nature and extent

of their communications with her regarding the budget and the appropriations bill. Inquiries such

as these, which would probe the development of legislation among Members, aides, or

committee staff, are prohibited by the Speech or Debate Clause. See McMillan, 412 U.S. at 313

(holding that the acts of committee members and staff in authorizing and preparing a committee

report are protected by the Clause); Fields, 459 F.3d at 14 (stating that “interactions with

legislative staff (which may form part of the basis for personnel actions) are often part of the due

functioning of the legislative process” (citing Gravel, 408 U.S. at 628–29)); Pittston Coal Grp. v.

Int’l Union, United Mine Workers, 894 F. Supp. 275, 278 n.5 (W.D. Va. 1995) (barring the

plaintiff from deposing a former senatorial aide regarding the legislative intent behind a

particular bill); United Transp. Union v. Springfield Terminal Ry., 132 F.R.D. 4, 6 (D. Me. 1990)

(stating that, because legislators “must be able to discuss and analyze issues that are subjects of

pending or potential legislation . . . [i]nternal congressional communication, whether between


                                                 16
legislators or between legislators and their aides,” is protected). Thus, Howard may not

challenge the veracity of the CAO’s description of her communications with the committee or its

staff.

                b.     The CAO’s Legitimate Legislative Explanation for Howard’s
                       Transfer Does Not Require the Dismissal of her Discrimination Claim

         If Howard’s only means of challenging the CAO’s proffered justifications for her transfer

was to attack the veracity of his statements regarding her communications with the committee,

the Court’s analysis would be at an end. See Scott, 522 F. Supp. 2d at 272 (dismissing the

plaintiff’s claim because she “has not argued . . . that there exists any evidence contrary and

unrelated to the Congressman’s stated reasons for Plaintiff’s demotion that would not require an

inquiry into the legislative acts described above”). Howard, however, avers that she can

challenge the CAO’s asserted reasons for her transfer without probing into protected activity.

She states that, when her transfer took place, she was given a different explanation for it: her

budget director position was being abolished. She also states that she was told that her transfer

was not performance-based. Further, she asserts that none of the reasons now given by the CAO

for her transfer were ever mentioned in her performance evaluations. Thus, she contends, she

can show that the CAO has offered varying and contradictory explanations for her transfer,

thereby establishing pretext without directly challenging the truth of the CAO’s statements

regarding her communications with the appropriations committee.9




         9
               In pretext cases, shifting and contradictory justifications for the challenged
employment action can give rise to an inference of discrimination. See Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1295 (D.C. Cir. 1998) (en banc); Sw. Merch. Corp. v. NLRB, 53 F.3d 1334, 1344
(D.C. Cir. 1995) (citing EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)).

                                                 17
       Howard thus seeks to fit her transfer claim into a category of cases that was expressly left

unaddressed by the Fields plurality:

       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
       [defendant] 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.

Fields, 459 F.3d at 16–17 (emphasis added); see also Scott, 522 F. Supp. 2d at 272 (noting that

the Fields plurality “left open” the question of precisely when the Speech or Debate Clause’s

evidentiary privilege would require the dismissal of Accountability Act claims). Before

addressing whether this category of cases is viable, however, the Court must determine whether

Howard’s transfer claim actually belongs therein. See Scott, 522 F. Supp. 2d at 272 (declining to

reach this question where the plaintiff offered no independent evidence that could contradict the

defendant’s explanation for her termination).

                       i.      Howard Has Extrinsic Means of Challenging the CAO’s
                               Legislative Explanation for her Transfer

       Howard’s arguments highlight two apparent contradictions between the CAO’s current

explanation for her transfer and the one she was given when the transfer happened: first, the

difference between the explanation for her transfer that she was given contemporaneously (that it

was a result of the budget director position being abolished) and the reasons provided in the

Beard affidavit (described above); second, the fact that, although she was told at the time that her

transfer was not performance-based, the CAO now offers performance-related justifications

therefor. See Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 431 (1st Cir. 2000) (finding

that a jury could infer discrimination where the defendant told the plaintiff that his termination


                                                 18
was “not a performance issue,” but later asserted during litigation that he had been terminated for

failing to abide by company policy and cooperate with coworkers). The CAO argues

persuasively that the first inconsistency is merely apparent, and results from an elaboration of,

rather than a change in, his explanation for Howard’s transfer.10 The second contradiction,

however, is not so easily explained away.

       Howard was apparently told at the time of her transfer that it was not performance-based.

Pl.’s Opp’n Ex. F (“Howard Decl.”) ¶ 2. The CAO now asserts that the transfer resulted — in

part — from Howard’s inadequate or unauthorized communications with other employees or

offices and from her lack of interpersonal skills, issues that are unquestionably performance-

related. The CAO suggests that “from a Human Resources perspective, there would have been

legitimate reasons” for not telling Howard of the performance-based component of the transfer

decision, observing that “it might well have been viewed as counterproductive to delve into

performance issues with Ms. Howard when those issues related to a position she no longer held

(and that no longer existed).” Def.’s Reply at 20 n.12. There are three problems with this

explanation. First, it appears not in the Beard affidavit but rather in the CAO’s reply brief. This

fact, in combination with highly tentative phrasing and a lack of citations, suggests that this



       10
                The CAO avers that the decision to make Howard a Senior Advisor had two
discrete components: first, the choice to abolish the budget department (which was unrelated to
Howard’s performance), and second, the conclusion (based on the Beard affidavit factors) that
Howard was best-suited to a Senior Advisor role. The fact that Howard was told only of the first
component of the decision does not, the CAO asserts, create a contradiction between the first and
the second, where each played a role in the original decision. See Def.’s Reply at 19–20. The
Court agrees. See Ford v. Mabus, 2010 WL 5060998, at *3 (D.C. Cir. Dec. 10, 2010)
(explaining that an apparent contradiction in rationales for a challenged employment action is not
“dispositive of pretext” where the seeming shift in rationale in fact resulted from disclosure of an
“additional rationale” not previously mentioned).

                                                 19
argument is simply unsupported speculation. Second, this argument fails to address Howard’s

contention that none of her performance evaluations mentioned the reasons the Beard affidavit

now gives for her transfer.11 See EEOC v. D.C. Public Schs., 277 F. Supp. 2d 44, 51 (D.D.C.

2003) (finding a genuine issue of material fact where an employer’s stated, performance-based

reasons for laying off the plaintiff were not reflected in the plaintiff’s performance evaluations).

Third, and most importantly, this explanation does not show that an apparent contradiction is not

in fact present; rather, it offers an innocent explanation for an inconsistency that does exist — an

explanation whose credibility (apart from its apparent lack of evidentiary support) this Court is

not well-positioned to assess at this highly preliminary stage. See Dominguez-Cruz, 202 F.3d at

432 (noting that although “[a] jury could, at trial, accept the employer’s explanation that it

initially chose not to discuss the plaintiff’s performance issues publicly out of a desire to avoid

humiliating him,” that explanation was not sufficient to warrant summary judgment for the

employer).12

        In light of the foregoing, the Court concludes that Howard’s case is indeed one “in which

the plaintiff [seeks to] use[] evidence unrelated to legislative acts . . . to demonstrate that the



        11
               The Court notes that the communications with the appropriations committee to
which the CAO objected could easily have occurred between Howard’s last performance
evaluation in November 2007 and her transfer in January 2009; even so, the absence of any
mention of her interpersonal skills may be probative of pretext.
        12
                In noting that Howard has identified unexplained contradictions in the CAO’s
explanations for her transfer, the Court does not pass judgment on the merits of her claim, under
the McDonnell Douglas framework or otherwise. This discussion is intended only to
demonstrate that Howard’s case is one “in which the plaintiff uses evidence unrelated to
legislative acts — such as . . . evidence that at the time of discharge the [defendant] offered a
different reason for the employment action from the one alleged in the affidavit.” Fields, 459
F.3d at 16–17.

                                                   20
defendant’s legislative explanation is pretext.” Fields, 459 F.3d at 16–17. Thus, the Court must

attempt to resolve the question left open by the Fields plurality: whether such a case “requires

more questioning of the defendant’s legislative motives than the Speech or Debate Clause

allows.” Id. at 17.

                        ii.     Accountability Act Plaintiffs May Attack Legislative
                                Explanations for Challenged Employment Actions by Using
                                Evidence Unrelated to Legislative Acts

        The question left open in Fields can be put this way: when the defendant has offered a

legitimate legislative explanation for the challenged employment action, may the plaintiff — who

is barred from attacking the veracity of the defendant’s description of that legislative activity —

nevertheless seek to show that the relationship between the legislative activity and the challenged

employment action is not as the defendant describes it? Neither party addresses this question;

Howard appears to assume that this type of argument is permissible, and the CAO merely argues

that Howard’s suit does not raise this issue. Regardless, the Court concludes that the Speech or

Debate Clause does not prevent plaintiffs like Howard from “us[ing] evidence unrelated to

legislative acts . . . to demonstrate that the defendant’s legislative explanation is pretext.”

        To begin with, it is clear that a legislative explanation for a challenged employment

action does not render that action legislative in nature. It is true that Fields did not rule out the

possibility that some congressional personnel actions could be legislative in nature. See Scott,

522 F. Supp. 2d at 269 (citing Fields, 459 F.3d at 10, 11). But the Fields plurality could not have

left open the possibility that a plaintiff could “use[] evidence unrelated to legislative acts . . . to

demonstrate that the defendant’s legislative explanation is pretext” if it believed that a legislative

explanation automatically transformed a challenged employment action into a legislative act. If


                                                   21
that were the case, the challenged action would fall within the Clause’s immunity prong and be

absolutely protected from judicial scrutiny. See Browning, 789 F.2d at 928–29. Thus, for the

Clause to bar Howard’s claim here, it would need to reach not only the legislative activity that

the CAO describes but also his attribution of Howard’s transfer to that activity. The Supreme

Court’s decision in Brewster makes clear that the Clause does not reach that far.

        In Brewster, a former Senator was prosecuted for accepting a bribe in exchange for a

promise of favorable legislative action. See 408 U.S. at 502–03. The Court held that the

prosecution could go forward, notwithstanding the fact that the quid to the bribe’s quo was the

performance of legislative acts. The Court rejected the argument that “inquiry into the alleged

bribe is inquiry into the motivation for a legislative act,” id. at 528, explaining that the act of

taking a bribe was not itself legislative in nature, and that the government could prove its case

without delving into whether and why the Senator had actually taken the actions for which he

was allegedly bribed. See id. at 525–29.

        A similar analysis applies here. If, under Fields, Howard’s transfer was not a legislative

act, and if Howard can prove that the 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. Put another way, in Brewster, the Clause barred the government

from questioning or introducing evidence of the Senator’s protected conduct, but permitted the

government to establish a relationship between that conduct and the alleged bribe. By the same

principle, although the Clause prevents Howard from inquiring into the protected activity at issue




                                                  22
here — or attempting to show that it never occurred — it should allow her to establish that there

was no relationship between that activity and her transfer.

        The converse conclusion — that cases in which the plaintiff seeks to prove pretext via

evidence unrelated to legislative acts are barred — would transform the evidentiary component

of the Speech or Debate Clause into a grant of immunity. A defendant would need only to

proffer a legislative justification, no matter how flimsy or demonstrably false, for a challenged

employment action, and the plaintiff’s claim would be barred, even if it could be proven without

any inquiry into legislative acts or the motivation thereof. Such a result would appear to go

beyond the reach of the Clause as it has heretofore been interpreted. 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]”); cf. Helstoski, 442 U.S. at 498 (Stevens, J.,

concurring in part and dissenting in part) (“[I]t is illogical to adopt rules of evidence that will

allow a Member of Congress effectively to immunize himself from conviction simply by

inserting references to past legislative acts in all communications, thus rendering all such

evidence inadmissible.”). Further, the Court cannot see a meaningful relationship between such

an outcome and the Clause’s “‘fundamental purpose’ . . . to free ‘the legislator from executive

and judicial oversight that realistically threatens to control his conduct as a legislator,’”

Helstoski, 442 U.S. at 492 (quoting Gravel, 408 U.S. at 618), “without unduly infringing ‘the

rights of private individuals.’” In re Grand Jury Subpoenas, 571 F.3d 1200, 1202 (D.C. Cir.

2009) (quoting Gravel, 408 U.S. at 624 n.15).


                                                  23
        In sum, the Court concludes that Howard’s claim that her transfer was discriminatory may

go forward. In attempting to prove that claim, Howard may seek to show that her

communications with the committee did not prompt her transfer by showing that such an

explanation is contradicted by the CAO’s other representations or not reflected in her

performance evaluations or other documentation. But she may not attempt to show that those

communications never took place or that they were other than as the CAO 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 for her to prove pretext, but that is the result that the Constitution

requires. See Brewster, 408 U.S. at 528 (“Perhaps the Government would make a more

appealing case if it could [refer to legislative activity], but here, as in that case, evidence of acts

protected by the Clause is inadmissible.”); Fields, 459 F.3d at 14 (“The Speech or Debate Clause

. . . may preclude some relevant evidence in suits under the Accountability Act.”).

                2.      Howard’s Termination

        The Court now turns to Howard’s claims that her April 2009 termination from the CAO’s

office was motivated by her race and by retaliatory animus. Unlike Howard’s transfer claim, her

termination claims must be dismissed because they cannot proceed without inquiry into actions

— specifically, communications — that are shielded by the Speech or Debate Clause.

        The Beard affidavit explains Howard’s termination as follows: around the time of her

transfer to Senior Advisor in January of 2009, Howard was instructed to analyze and reconcile

the Government Contributions Account. Beard Aff. ¶ 12. Between January and April, despite

having the data and computer access needed to perform this task, Howard “repeatedly refused” to




                                                   24
do so. Beard Aff. ¶ 14. Accordingly, with the CAO’s approval, Deputy CAO Qureshi informed

Howard that her employment was being terminated.

       The CAO avers that Beard affidavit establishes conclusively that Howard was terminated

for her performance of conduct — the budget analysis assignment — that is protected by the

Speech or Debate Clause. Howard makes two responses: first, she avers that her budget analysis

duties were not integral to the legislative process within the meaning of Gravel. Second, she

argues that, even by the CAO’s own description, she was not terminated for the performance of

protected conduct, meaning that her claims would not require inquiry into legislative conduct or

motivations. Howard’s position is not without force, but is ultimately unavailing.

       Howard’s first argument — that her budget analysis task was “administrative, not

legislative, in nature” — cannot be sustained. As the CAO points out, numerous cases have held

that the gathering of information for use by Members of Congress in deliberating over proposed

legislation is protected by the Clause. See, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S.

491, 504–05 (1975); McSurely v. McClellan, 553 F.2d 1277, 1286 (D.C. Cir. 1976) (en banc);

see also Jewish War Veterans, Inc. v. Gates, 506 F. Supp. 2d 30, 55–57 (D.D.C. 2007)

(collecting cases). Howard offers the Court no basis on which to distinguish between

information gathering “in aid of a legitimate legislative act,” which is protected, Jewish War

Veterans, 506 F. Supp. 2d at 57, and the information sifting and analysis that her task required,

which was likewise “in aid of” legislative activity. See Beard. Aff. ¶¶ 9–10. Further, when

determining whether a specific act is protected, the Courts have not distinguished between

Members themselves and aides or officers who were instructed to perform the act by a Member

or to whom Congress has delegated the authority to act. See, e.g., Gravel, 408 U.S. at 616–17;


                                                25
Consumers Union, Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1345 n.8, 1350

(D.C. Cir. 1975); Hastings v. U.S. Senate, Impeachment Trial Comm., 716 F. Supp. 38, 42

(D.D.C. 1989); but see Dombrowski v. Eastland, 387 U.S. 82, 84–85 (1967). In light of this

substantial body of precedent, the Court concludes that Howard’s task was legislative in nature.

Cf. Bryant v. Jones, 575 F.3d 1281, 1305–1307 (11th Cir. 2009) (holding that a county official

was engaged in legislative activity when he developed and drafted a budget that would be

submitted to county legislators for enactment).13

       Howard next argues that, by the CAO’s own description, she was not fired for her

performance of the analysis and reconciliation task, but rather for repeatedly refusing to do it; in

essence, she was fired for insubordination. Thus, an attack on the CAO’s justification for

Howard’s termination would turn not on the nature or import of her assigned task but on rather

more prosaic questions: what Qureshi told Howard to do, whether or why Qureshi and Nuti

refused to meet with Howard, and whether or why Howard had access to certain computer

systems. Compare Beard Aff. ¶ 14, with Am. Compl. ¶¶ 38–40, 43–46, 58–61, and Howard



       13
                In reaching this conclusion, the Court is mindful that Howard is several steps
removed from any individual legislator: she received her instructions from Qureshi, who
presumably received them from the CAO himself, whose authority is delegated by the house
committees, the power of which derives from that of the individual Members who make up the
committees. Thus, Speech or Debate Clause concerns may be less acute in this context than in a
Member’s personal office or among committee staff. See Dombrowski, 387 U.S. at 85 (“This
Court has held . . . that [Speech and Debate Clause] doctrine is less absolute, although applicable,
when applied to officers or employees of a legislative body, rather than to legislators
themselves.” (citing Tenney v. Brandhove, 341 U.S. 367, 378 (1951))). Even so, there is not a
sufficient basis in precedent to conclude that a task is non-legislative merely because it is
performed by staff who are several steps removed from the Members themselves. Courts have
even extended the Clause’s protections to private organizations and executive branch personnel,
provided that they were engaged in legislative activity at the behest of Congress. See Consumers
Union, 515 F.2d at 1345 n.8, 1350; Hastings, 716 F. Supp. at 42.

                                                 26
Decl. ¶¶ 5–6. This is a fair distinction, but it overlooks the fact that Howard’s interactions with

Qureshi and Nuti regarding her task are also off-limits.

          Simply put: internal legislative branch communications regarding protected legislative

activities are themselves protected from judicial scrutiny by the Speech or Debate Clause. That

fact is a natural outgrowth of Gravel’s holding that Members and their aides are to be treated as

one for Speech or Debate Clause purposes: if an activity is protected equally whether a Member

or an aide performs it, it is only logical that the communications by which the Member instructs

the aide to perform it are protected as well. Thus, the Gravel Court held that the Clause

prevented a senator’s aide from being asked any questions before a grand jury “concerning

communications between the Senator and his aides during the term of their employment and

related to . . . any . . . legislative act of the Senator.” 408 U.S. at 629 (emphasis added).

Likewise, in United States v. Hansen, No. 83-0075 (D.D.C. Mar. 9, 1984), a judge of this court

quashed subpoenas that sought to compel house officers and staff to testify “regarding House

procedures, instructions and authority.” Hansen, No. 83-0075, slip op. at 2. The Hansen court

stated that “[e]ven general questions of the nature the government proposes [to ask] trigger the

testimonial privilege if they relate to” legislative activity. Id. at 4 (citing Eastland, 421 U.S. at

503).14

          The foregoing rule is fatal to Howard’s termination claims. Howard’s claims — and her

argument that the CAO’s explanation for her firing is pretextual — turn on precisely what

Qureshi told her to do and when he did so. See Am. Compl. ¶¶ 38–40, 43–46, 49–53, 55–56,


          14
                As with Howard’s task itself, the fact that the exchanges at issue took place
several “links in the chain” from any actual legislator does not, under governing precedent,
provide a basis to conclude that it is not protected by the Speech or Debate Clause.

                                                  27
58–62; Pl.’s Opp’n at 14–15. Without being able to probe the content of Qureshi’s instructions

to her, it would be impossible for Howard to prove that she did not “repeatedly refuse” to

perform a task she had been told to undertake. Consequently, Howard’s termination claims

cannot succeed without intruding upon territory that lies within the aegis of the Speech or Debate

Clause.15

       To be clear: the Court’s reasoning does not rest on an understanding that the management

of employees with legislative duties is always legislative activity; such a conclusion would

contradict Fields’s express rejection of the Browning test. See Fields, 459 F.3d at 12 n.20

(“While there is no doubt a ‘clear nexus’ between a personnel decision involving an employee

with legislative duties and the Member’s ‘ability to carry out his representative responsibilities

effectively,’ a ‘nexus’ alone is insufficient to trigger the protections of the Speech or Debate

Clause.” (quoting Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 665

(D.C. Cir. 2006); Brewster, 408 U.S. at 528) (internal citations omitted)). The Court’s dismissal

of Howard’s termination claims reflects only that the Clause protects internal legislative branch

communications regarding specific legislative activities that are themselves within the scope of

the Clause. See Gravel, 408 U.S. at 629; United Transp. Union, 132 F.R.D. at 6; cf. Fields, 459



       15
                In reaching this conclusion, the Court does not endorse the CAO’s broad assertion
that the Clause protects “the manner in which the CAO carrie[s] out the his [sic] legislative
responsibilities.” Def.’s Reply at 17 n.9. First, that formulation’s focus is misplaced: the proper
focus is not the CAO’s responsibilities — or Howard’s — but the specific acts and motivations
into which the suit must necessarily inquire. See Fields, 459 F.3d at 11–12, 14–16; Scott, 522
F. Supp. 2d at 269; supra section II.B.1.a. Second, any personnel or management actions
involving an employee with legislative duties could arguably be part of “the manner in which the
CAO carrie[s] out . . . his legislative responsibilities,” but the Fields court held that not all such
decisions are immunized from judicial scrutiny by the Clause. See Fields, 459 F.3d at 11–12 &
n.20.

                                                 28
F.3d at 12 (noting that Members are not engaged in activity integral to the legislative process

when they are directing their aides to perform non-legislative tasks).


                                       III. CONCLUSION

       This is a difficult case. It involves the weighing of two principles of extraordinary

gravity: on one hand, the independence of the legislative branch from intimidation and

interference, and on the other, the “rooting out [of] every vestige of employment discrimination

within the federal government.” Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 713

(D.C. Cir. 2009) (quoting President v. Vance, 627 F.2d 353, 363 (D.C. Cir. 1980)) (internal

quotation marks omitted). It also requires a foray into a particularly challenging area of legal

doctrine. See, e.g., Jewish War Veterans, Inc. v. Gates, 506 F. Supp. 2d 30, 57 (D.D.C. 2007)

(“It is hard enough to draw the crucial distinction between legislative and non-legislative acts,

despite the existence of four decades of Supreme Court and D.C. Circuit case law to provide

guidance.”). “These are perplexing questions. Their difficulty admonishes us to observe the

wise limitations on our function and to confine ourselves to deciding only what is necessary to

the disposition of the immediate case.” Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 372–73

(1955). Accordingly, the Court emphasizes that its holding turns on the specific facts of this

case. For the same reasons, the Court declines to adopt or address the two-part test advocated by

the CAO.16 The D.C. Circuit did not announce a “blanket rule” for cases like this one, see


       16
               “We believe the legal standard should be as follows: to overcome the Fields
presumption and avoid a Rule 12(b)(1) dismissal, a plaintiff in a legislative-branch employment
case who, like Ms. Howard, lacks any direct evidence of discrimination, must make a clear and
convincing evidentiary showing that (i) the reason articulated by the employer for the
employment action was not the true reason for the action, and (ii) she can prove that at trial, i.e.,
prove pretext, without probing ‘the legislative activities and the motivations for those activities

                                                  29
Fields, 459 F.3d at 21 (Tatel, J., concurring), and it would imprudent for this Court to attempt to

do so.

         Accordingly, it is this 24th day of June 2011 hereby

         ORDERED that the defendant’s motion to dismiss [#16] is GRANTED as to Count I

(discriminatory discharge) and Count IV (retaliation) of the amended complaint; and it is further

         ORDERED that the motion is DENIED as to Count II (discriminatory demotion).



                                                      Henry H. Kennedy, Jr.
                                                      United States District Judge




asserted’ in the affidavit filed in support of the motion to dismiss.” Def.’s Reply at 14 (quoting
Fields, 459 F.3d at 15).

                                                 30
