CAO Beard Contests Ex-Employee’s Lawsuit

Some Office Responsibilities Fall Under Protected Legislative Matters, Chief Administrative Officer Says

Posted May 11, 2010 at 6:22pm

Chief Administrative Officer Dan Beard is contesting a former employee’s lawsuit by claiming that some of his office’s responsibilities are protected legislative matters under the Constitution’s Speech or Debate Clause.

Beard’s former budget director, LaTaunya Howard, filed a discrimination lawsuit against the office last year, alleging she was fired because she is African-American.

Howard spent six years in the CAO’s office, beginning in 2003 as deputy budget director and working her way up to budget director. But she was reassigned last year to a senior adviser position and soon after was fired for insubordination.

In her lawsuit, Howard claims Beard’s office violated the Congressional Accountability Act by discriminating against her when CAO officials treated her differently from her peers, demoted her and finally fired her. Her lawsuit also has a fourth count alleging “unlawful retaliation.”

But in a recent motion to dismiss, Beard’s lawyers claim she can only pursue the “disparate treatment” count — or the allegation that she was paid less and treated differently than two fellow senior advisers. The other counts, the motion argues, can’t be pursued because Howard would have to divulge information protected by the Speech or Debate Clause.

Howard, the motion states, will not be able to argue her case “without probing into protected legislative matters, probing that is prohibited under the Speech or Debate Clause.”

The argument, in essence, is that Beard — like lawmakers — cannot be prosecuted for legislative activity. Howard’s lawsuit is the first filed against Beard since he became CAO in 2007, and if his motion for dismissal holds, it could set a precedent for any future lawsuits from CAO employees.

To follow this argument, Beard’s office has switched legal representation from the Office of House Employment Counsel to the Office of General Counsel, which has more experience arguing cases dealing with the clause, according to a staffer close to the matter.

Beard’s office did not return a request for comment. Neither did Ross Nabatoff, the attorney representing Howard. Nabatoff works at the law firm of Stan Brand, a former House counsel and Democratic lawyer.

Howard’s lawsuit, filed in September, describes Beard’s reorganization of the office since he took over in 2007. Throughout, Howard received positive performance reviews, but in 2009, she was reassigned from budget director to senior adviser. She was paid $22,000 less than her two male counterparts, according to her lawsuit, and given an assignment for a budget account no longer in her purview. When that assignment wasn’t finished on time, Howard was fired.

Beard’s motion to dismiss focuses on that assignment, claiming it was one of the office’s “constitutionally protected budgetary responsibilities.” The motion claims Howard was tasked with analyzing and reconciling the Government Contributions Account, which covers the employer-paid portion of staffers’ benefits. This “one-time assignment” needed to be completed in time for the CAO, the Appropriations Committee and the House Administration Committee to prepare for the March 2009 fiscal year budget hearings, according to the motion.

Thus, the task was “unquestionably an integral part of the legislative process since it directly supported the legislative responsibilities of the Committees on Appropriations and House Administration.”

“Ms. Howard was discharged solely because of her performance — or, in this case, her non-performance — of this protected activity,” the motion states.

Howard argues in her lawsuit, however, that Deputy CAO Ali Qureshi prevented her from doing the work. Requests to meet about her co-workers’ uncooperative behavior were overlooked, she said, and Qureshi failed to help her obtain the required computer system access that she needed to complete the assignment. And when the assignment wasn’t completed, only she was fired — not any of the other employees assigned to help her.