Fields v. Office of Eddie Bernice Johnson, 04-5315.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation459 F.3d 1
Docket NumberNo. 04-5315.,No. 04-5335.,04-5315.,04-5335.
PartiesBeverly A. FIELDS, Appellee v. OFFICE OF EDDIE BERNICE JOHNSON, EMPLOYING OFFICE, UNITED STATES CONGRESS, Appellant Brad Hanson, Appellee v. Office of Senator Mark Dayton, Appellant.
Decision Date18 August 2006

Appeals from the United States District Court for the District of Columbia (No. 04cv00717). (No. 03cv01149).

William F. Allen, Attorney, Office of House Employment Counsel, argued the cause for appellant in No. 04-5315. With him on the briefs was Kimberly Carey Williams, Attorney. Gloria L. Ferguson, Attorney, entered an appearance.

Geraldine R. Gennet, General Counsel, U.S. House of Representatives, and Kerry W. Kircher, Deputy General Counsel, were on the brief for amicus curiae Bipartisan Legal Advisory Group of the United States House of Representatives in No. 04-5315.

Henry J. Hyde, pro se, was on the brief for amicus curiae Congressman Henry J. Hyde in support of appellant in No. 04-5315.

Wayne Marcus Scriven argued the cause and filed the brief for appellee in No. 04-5315.

Jean M. Manning, Chief Counsel, Office of Senate Chief Counsel for Employment, argued the cause for appellant in No. 04-5335. With her on the briefs was Toby R. Hyman, Senior Counsel. Mary S. Bach, Counsel, entered an appearance.

Richard A. Salzman argued the cause for appellee in No. 04-5335. With him on the brief were Douglas B. Huron and Tammany M. Kramer.

Before: GINSBURG, Chief Judge, and SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, BROWN, and GRIFFITH, Circuit Judges.*

Opinion for the Court in part filed by Circuit Judge RANDOLPH, an opinion in which Chief Judge GINSBURG and Circuit Judges HENDERSON and TATEL join.

Opinion concurring in part and in the judgment filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge BROWN, with whom Circuit Judges SENTELLE and GRIFFITH join.

RANDOLPH, Circuit Judge.

Article I, section 6 of the Constitution provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." We ordered these two appeals to be argued together en banc in order to determine whether the Speech or Debate Clause requires dismissal of these suits brought under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438, and whether Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C.Cir.1986), should remain the law of this circuit.

I.

No. 04-5315 is an appeal from a district court order denying a motion to dismiss a complaint alleging that the Office of Representative Eddie Bernice Johnson discriminated against Beverly A. Fields because of her race and gender and retaliated against her for objecting to discriminatory conduct. No. 04-5335 is an appeal from a district court order denying a motion to dismiss a complaint alleging that the Office of Senator Mark Dayton discriminated against Brad Hanson because of a perceived disability and violated the Fair Labor Standards Act. The Office of Representative Johnson and the Office of Senator Dayton (collectively, the "Member Offices") claim that the Speech or Debate Clause immunizes them from these suits and that the district court should have dismissed the complaints for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1).1

A.

Fields and Hanson each sued under the Accountability Act. The Act confers on "covered employees" rights and remedies drawn from various labor and employment statutes not previously applicable to the legislative branch.2 2 U.S.C. § 1302(a); see id. §§ 1311-16, 1331, 1341, 1351. It also includes an anti-retaliation provision that prohibits "an employing office" from "intimidat[ing], tak[ing] reprisal against, or otherwise discriminat[ing] against, any covered employee because the covered employee has opposed" or reported "any practice made unlawful" by the Accountability Act. Id. § 1317(a). A "covered employee" is an individual employed by the House of Representatives, the Senate, or some other office specifically enumerated in the statute. Id. § 1301(3).3

Section 1404(2) creates a cause of action for covered employees to sue in federal court for violations of the Accountability Act. Section 1408(a) vests the "district courts of the United States" with "jurisdiction over any civil action commenced under section 1404." Before initiating such an action, the employee must seek counseling by, and mediation with, the Office of Compliance, id. § 1408(a); see §§ 1402-1403, "an independent office within the legislative branch," id. § 1381(a). Thereafter, the employee may bring an action against "the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred." Id. § 1408(b). An "employing office" for these purposes includes "the personal office of a Member of the House of Representatives or of a Senator." Id. § 1301(9)(A).

Fields, an African American female and the plaintiff in No. 04-5315, served as Representative Johnson's chief of staff from January 2002 until her discharge in early 2004. The parties agree that as chief of staff, Fields was deeply involved in a wide array of Representative Johnson's legislative work. Fields's complaint alleged as follows. Elisabeth Howie, a "Black Latino," worked as an executive assistant and scheduler for the Office of Representative Johnson. In April 2003, the office decided to replace Howie with "an Asian person under the age of 40." Fields objected, but her objections were rebuffed, and she was directed to give Howie one day's notice that she was being terminated.

After Fields made her objections to Howie's termination known around the office, her co-workers began falsely accusing her of poor performance. Fields alleged they did so because they wanted "a Caucasian male rather than an African American female" to be Representative Johnson's chief of staff. Their efforts eventually succeeded when the Office of Representative Johnson promoted a non-African American male employee to chief of staff and demoted Fields to administrative assistant. The Office of Representative Johnson increased the new chief of staff's salary by approximately $10,000 — something it failed to do for Fields despite promising her a salary increase when she was chief of staff.

Fields filed an employment discrimination complaint with the Office of Compliance on December 18, 2003, and began the required counseling and mediation. While this was going on, the Office of Representative Johnson "initiated a bad faith and bogus investigation of plaintiff's conduct as an employee ... to embarrass plaintiff before her co-workers and to force plaintiff to resign from her employment position." When Fields refused either to drop her discrimination claims or to resign, she was abruptly terminated. In response to this additional retaliation, Fields filed a second employment discrimination complaint with the Office of Compliance on March 11 2004, and again complied with the counseling and mediation requirements.

After exhausting her administrative remedies, Fields sued the Office of Representative Johnson under the Accountability Act. She alleged racial and gender discrimination in violation of 2 U.S.C. § 1311(a)(1) (incorporating § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2), equal pay discrimination in violation of 2 U.S.C. § 1313(a)(1) (incorporating §§ 6(a)(1) and (d), 7, and 12(c) of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 206(a)(1), (d), 207, 212(c)), and two counts of retaliation in violation of 2 U.S.C. § 1317(a). The Office of Representative Johnson moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1), asserting immunity from suit under the Speech or Debate Clause. The district court denied the motion to dismiss without explanation. After ordering en banc review, we granted Representative Johnson's motion to intervene for the limited purpose of asserting her Speech or Debate Clause immunity.

Brad Hanson, the plaintiff in No. 04-5335, joined Senator Dayton's Senate campaign in July 2000 and began serving as State Office Manager in Senator Dayton's Ft. Snelling, Minnesota, office upon the Senator's election to office. Hanson's complaint alleged as follows. Hanson's work for Senator Dayton centered on "setting up the Senator's three local offices in Minnesota" and overseeing "the transition of the Health Care Help Line to Senator Dayton's personal Senate office."4 The Health Care Help Line "offered assistance to people having difficulties with their health insurance carriers, HMO's or physicians." This work often required Hanson, an employee entitled to overtime pay under the Fair Labor Standards Act, to work overtime. The Office of Senator Dayton never paid him for this overtime, even though the Office "recognized" his "effectiveness" by increasing his salary and paying him a bonus in January 2002.

Hanson began experiencing cardiac arrhythmia early in 2002. His physician advised him to undergo a coronary ablation. The surgery would require only a short hospital stay, but Hanson would need two to three weeks away from work to recover. Hanson informed his co-workers that he needed heart surgery and arranged a short meeting with Senator Dayton on July 3, 2002, in the Ft. Snelling office to share the news with him. "The meeting had not gone on for more than five minutes when the Senator abruptly told Hanson, `You're done,"' without explanation. Senator Dayton told Hanson to stop reporting to the office and to take medical leave instead. Matt McGowan, Senator Dayton's Washington Office Manager, later called Hanson at home to inform him that "he would be terminated as of September 30." Hanson then underwent coronary ablation and fully recovered.

Hanson...

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