Fate of Discrimination Suit Rests With Appeals Court

Posted November 21, 2007 at 3:01pm



Correction Appended

A federal appeals court is set to decide whether a discrimination lawsuit brought by a House employee more than five years ago can be heard by a jury.

Standley Brady sued House Sergeant-at-Arms Bill Livingood and a handful of other House officials in 2002 after being denied a promotion and instead getting demoted from his job as assistant shift supervisor in the office of Garages and Parking Security.

Brady, who is black, says he was discriminated against by management, which he says favors less-qualified white employees for supervisory roles.

The U.S. District Court for the District of Columbia dismissed the lawsuit last year. Brady appealed, and the U.S. Court of Appeals for the D.C. Circuit heard oral arguments on Nov. 19.

The case centers on a sexual harassment claim made in 2001 against Brady by two white employees, who said they witnessed Brady approach a female employee, grab his crotch and ask: “May I please use your restroom?”

Livingood and his staff investigated the incident and concluded there was “clear and convincing evidence” that the harassment had occurred, said counsel Victoria Botvin, who is representing the House officials in the lawsuit. That prompted Livingood to demote Brady, Botvin told the three-judge panel.

Brady has denied the harassment claims and calls them racially motivated. In court, Brady’s attorney said the woman he allegedly harassed (who is black) has denied the incident. One of the accusers, however, has been found to have made false harassment accusations in the past.

Attorney Lenore Garon further argued that Livingood’s investigation into the incident was not conducted properly.

“This should have gone to jury,” Garon said. “It was a very flawed investigation in an atmosphere of racial division.”

But Judge Harry Edwards appeared to have concerns with that argument, noting that Brady did not deny the harassment took place in his first written statements about the claim.

“I want to see your denials. Your denials aren’t there,” Edwards said. “It seems to me, the first sentence in my letter is going to be: ‘I did not do this.’”

That was an issue further raised by Botvin, who said Brady went on a trip to South Africa almost immediately after the harassment claim was made, making it seem as if he had something to hide.

Botvin also argued that Brady cannot show he was meeting employer expectations to get the promotion or keep his assistant supervisory gig (he was in a one-year probationary period at the time).

“In fact, all evidence points to the contrary,” Botvin said.

Furthermore, Livingood had clear evidence and honestly believed that the harassment had taken place, Botvin said. Because of that, it should not be up to any court to serve as a “super-personnel department” in matters such as these, she argued.

But Edwards appeared to question that argument.

“You might have an honest belief that is completely inaccurate,” Edwards noted.

Botvin responded that a separate investigation conducted by an independent law firm upheld the notion that Brady grabbed his crotch in front of the female worker. That investigation also concluded no discrimination had taken place, Botvin noted.

Garon dismissed that argument, saying that the law firm investigation also is flawed and did not delve into all the issues in the case.

“Mr. Brady is entitled to a ‘reasonable jury,’ not a ‘reasonable law firm,’” Garon said.

Following oral arguments, Brady attorney Joseph Gebhardt said it is difficult to gauge how the judges might rule, but that it was clear Brady’s argument had been presented well in court.

“I think the court understood the problems with the defendant’s case,” Gebhardt said. “There definitely was a racially charged atmosphere, and Mr. Brady was accused by someone who made false accusations.”

Chief Judge Douglas Ginsberg and Judge Brett Kavanaugh also heard the case, and the court is expected to decide within two months whether the lawsuit can move forward.

Correction: Nov. 26, 2007
The Nov. 26 article “Fate of Discrimination Suit Rests With Appeals Court” incorrectly identified the witness who has been accused of making false harassment claims. One of the white witnesses, who said they saw a House worker make inappropriate gestures toward a female employee, allegedly made the past false claim.