Judge Says CAO Shielded From Suits

Posted July 12, 2011 at 6:18pm

A recent judge’s order granting the former House Chief Administrative Officer constitutional immunity from a fired employee’s lawsuit could substantially restrict the kinds of workplace issues Congressional staff can bring to court, the plaintiff’s lawyer said.

In what he called “a difficult case,” District Judge Henry H. Kennedy Jr. ruled that ex-CAO Dan Beard is protected by the Constitution’s Speech or Debate Clause, which protects Members and aides from lawsuits involving official legislative business.

The CAO’s former budget director LaTaunya Howard will have to drop her allegations that she was unfairly fired and retaliated against, Kennedy ruled. But she can continue her lawsuit based on claims that she was unjustly demoted before she was fired and that she was paid less than two white male counterparts.

In a May 2010 motion to dismiss, lawyers for the CAO said Howard was fired for poor performance. Howard, on the other hand, said the insubordination charge was set up as a pretext to fire her based on her race.

But contesting the CAO’s version of the events would be unconstitutional, Kennedy ruled. Since the office assists Members in legislative activity and Howard worked with legislative budgets, all lawsuits based on the merits of her performance are off limits, Kennedy ruled in the U.S. District Court for the District of Columbia.

“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,” Kennedy wrote in his June 24 order. “Simply put: Internal legislative branch communications regarding protected legislative activities are themselves protected from judicial scrutiny.”

Howard’s lawyer, former House counsel Stan Brand, said Kennedy went too far.

His ruling “significantly narrows and limits the reach of the Congressional Accountability Act,” he said. “It would limit the ability for employees to seek redress for grievances.”

Brand said he will most likely appeal the ruling, seeking the chance to at least prove that Howard’s communication with CAO managers was administrative, not legislative. However, if Kennedy’s ruling stands, it would prevent a court from even probing that question.

Howard, now an independent budget consultant, filed the discrimination lawsuit in September 2009, stating she was demoted, reassigned and ultimately fired because she is black.

The case centers on Beard’s reorganization of the office, begun after he was appointed by then-Speaker Nancy Pelosi (D-Calif.) in 2007. In early 2009, Howard was reassigned to a senior adviser position in which she was paid $22,000 less than her white male counterparts and given an assignment for a budget account no longer in her responsibilities, according to her lawsuit. When that assignment wasn’t finished on time, she was fired for insubordination.

Howard could not argue her case “without probing into protected legislative matters, probing that is prohibited under the Speech or Debate Clause,” lawyers for the CAO stated in a May 2010 filing.

The CAO also sought to dismiss Howard’s charge of discriminatory demotion, but Kennedy ruled that Howard can pursue the case. Although the CAO claims in court she was demoted for performance-based reasons, they had previously told Howard the move was not based on her performance and had given her positive performance evaluations, she claims.

As a result, Howard can point out the discrepancy but will not be allowed to probe the “nature, extent and substance” of her communications with her CAO managers.

“This will likely make it more difficult for her to prove pretext, but that is the result that the Constitution requires,” Kennedy wrote.

Dan Weiser, spokesman for Beard’s successor, Dan Strodel, declined to comment, citing agency policy not to speak publicly about personnel issues.