Ex-Employees Suit Against Guide Board May Continue

Posted May 4, 2005 at 6:48pm

A federal judge has refused to dismiss a lawsuit against the Capitol Guide Board, thereby allowing a former employee to pursue charges of discrimination against the agency.

In the lawsuit, filed in February 2004 in the U.S. District Court for the District of Columbia, Kevin Barry alleges he faced years of retaliation after filing an Equal Employment Opportunity complaint in the late 1990s, before he was fired in July 2003 from Capitol Guide Service, which reports to the board.

In an opinion issued Monday, District Judge Reggie Walton ruled against a motion filed by attorneys for the Capitol Guide Board that called for dismissal of the case or summary judgment for the agency.

In its motion to dismiss, the Office of the Senate Employment Counsel — which represents the guide service because its employees receive their salaries through the Senate payroll — had refuted Barry’s claims, asserting he failed to establish a connection between his termination and the earlier EEO complaint.

“Plaintiff cannot show any retaliatory animus for having engaged in protected activity, let alone any retaliatory motive for the termination of his employment,” Senate Senior Counsel for Employment Toby Hyman wrote.

According to court documents, Capitol Guide Service officials terminated Barry, who is deaf and uses an American Sign Language language interpreter, following an investigation into alleged “inappropriate conduct” during conversations with an interpreter at the Congressional Special Services Office.

Writing in his decision, Walton asserted that he cannot rule in favor of either party without further information from both sides.

“It is simply impossible at this time for this Court to determine whether there is a genuine issue as to whether the plaintiff’s termination was because of the alleged inappropriate conduct he committed in 2003 or was in retaliation for his 1996 and 1997 statutorily protected activity,” Walton wrote. “Thus, the plaintiff must be afforded the opportunity to engage in discovery so that he may attempt to acquire evidence to rebut the defendant’s alleged legitimate and nondiscriminatory reason for his termination.”

Nicholas Woodfield, Barry’s attorney, praised Walton’s opinion, stating: “We are very pleased with the judge’s decision, and we are looking forward to the opportunity of proving Mr. Barry’s allegations though the discovery process.”

Barry, who filed his initial complaint in February under the Congressional Accountability Act, is seeking monetary damages and reinstatement in the Guide Service, which conducts official tours of the Capitol.

The CAA ended longstanding Congressional exemptions from 11 laws covering civil rights, fair employment and discrimination in 1995. Congressional employees are allowed to file complaints in federal district court after seeking required counseling and mediation at the Office of Compliance, an independent legislative branch agency created by the CAA.