Bastien v. Office of Campbell
| Decision Date | 27 June 2002 |
| Docket Number | No. CIV.A.01-WY-799-CB.,CIV.A.01-WY-799-CB. |
| Citation | 209 F.Supp.2d 1095 |
| Parties | Rita BASTIEN, Plaintiff, v. The OFFICE of Senator Ben Nighthorse CAMPBELL, Defendant. |
| Court | U.S. District Court — District of Colorado |
John S. Evangelisti, Denver, CO, Karen Hendrick Larson, Denver, CO, for plaintiff.
Jean Marie Manning, Office of Senate Chief Counsel for Employment, Washington, DC, Claudia Anne Kostel, Office of Senate Chief Counsel for Employment, Great Falls, VA, for defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
This action arises from Plaintiff's allegations of discrimination and retaliation based upon her age. The matter is currently before the Court on Defendant's Motion to Dismiss and Motion to Strike Portions of the Amended Complaint. Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:
Background
Plaintiff Rita Bastien is a sixty two year old Hispanic female who was employed as a staff member by Defendant, the Office of Senator Ben Nighthorse Campbell, from July 7, 1994 until she was terminated April 10, 2001. From July 7, 1994 through September 4, 2000, Plaintiff served as a Senate Aide in Defendant's Englewood, Colorado office. On September 5, 2000, Plaintiff was transferred to Defendant's Colorado Springs, Colorado office, where she was employed as District Director until her termination on April 10, 2001.
Regarding her transfer from Defendant's Englewood, Colorado office to Defendant's Colorado Springs, Colorado office, Plaintiff first argues that her transfer caused her to commute extensively, creating a financial and emotional hardship upon her as she was a life-long resident of Denver, with family in Denver. Plaintiffs second contention is that her transfer was not based upon or part of a policy of cross training or rotation, as she claims that Defendant had no such policy requiring the rotation and transfer of employees, and that other employees who travel extensively for their jobs did so voluntarily.1 Finally, Plaintiff maintains that the person she essentially traded positions with, Ms. Lawton,2 was given preferential treatment from Defendant's Chief of Staff, Ms. Kontnik, who Plaintiff claims demonstrated a preference for the "younger" Ms. Lawton. During this period Ms. Lawton was 50.
Plaintiff contends that Defendant is attempting to justify her transfer to Colorado Springs for a number of reasons, including that Plaintiff was "a gossip, disruptive, and a rat" and that the transfer may help solve her problems. Pl.'s Com. L. 36-38. Plaintiff maintains that these reasons are pretextual. Plaintiff further claims that the reasons urged by Defendant to justify her termination — that Plaintiff was not a team player, she complained to constituents, she was rude to constituents, she took leave without permission, she contacted the Senator's ranch, she left early without approval, she had unknown whereabouts, she failed to perform outreach or provide monthly reports, she provided misleading information about her schedule, she lied about attending a defense task-force meeting, and she spent too much time on personal calls — are all recent fabrications that are merely pretextual for Defendant's discriminatory treatment toward her. Plaintiff's Com. L. 59-69.
Plaintiff contends that her involuntary transfer from the Englewood office to the Colorado Springs office, the allegedly negative treatment she received at that office, and her subsequent termination are all acts of discrimination based upon her age, and retaliation for complaints of discrimination based on her age. Relying upon the above allegations, Plaintiff brings two claims for relief under the Congressional Accountability Act ("CAA"), 2 U.S.C. § 1301 et seq. In her First Claim for Relief Plaintiff alleges age discrimination and disparate treatment in violation of the Congressional Accountability Act, 2 U.S.C. § 1301 et seq.. Plaintiff's Second Claim for Relief alleges Retaliation in violation of the Congressional Accountability Act, 2 U.S.C. § 1301 et seq..
Defendant is requesting that the Court dismiss Plaintiff's Amended Complaint in its entirety pursuant to Rule 12(b)(1) on the basis that the Speech or Debate Clause of the United States Constitution (U.S.CONST. art. I, § 6, cl.1) bars the Court's jurisdiction over this action. In support of this motion, Defendant has submitted various materials describing the role and job duties of the Plaintiff while working for the Defendant. In response to this motion, Plaintiff has also submitted affidavits describing Plaintiff's job duties, as well as a variety of documents discussing the Congressional Accountability Act and its interaction with the Speech and Debate Clause of the United States Constitution.
Neiberger v. Hawkins, 208 F.R.D. 301, 307-08 (D.Colo.2002). U.S. v. Rodriguez Aguirre, 264 F.3d 1195, 1204 (10th Cir.2001) (citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)).
In the present case, Defendant's motion to dismiss for lack of jurisdiction shall be construed as a factual attack upon the complaint, as the Defendant, pursuant to of the protections afforded the by the Speech or Debate Clause, is challenging the ability of this specific Plaintiff, because of her particular job duties, to bring the present action. Therefore, the Court will allow and review the affidavits and additional materials submitted by the parties, and will not presume the truthfulness of Plaintiff's allegations. See Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320, 1324 (10th Cir.2002) (citing Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995)).
Congressional Accountability Act of 1995 2 U.S.C. § 1301 et seq.
The allegations and relief requested in Plaintiff's Amended Complaint are based upon the Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq. ("CAA"). The CAA applies eleven federal employment laws, including the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) to the legislative branch of the Federal Government. 2 U.S.C. § 1302(a). In addition to prohibiting discrimination on the basis of age, the CAA prohibits discrimination based on race, color, religion, sex, national origin, or disability. 2 U.S.C. § 1311(a). Further the CAA prohibits retaliation, intimidation or reprisals against covered congressional employees who exercise their rights under the CAA. 2 U.S.C. § 1317. The CAA provides the exclusive remedy for employment discrimination law suits brought against congressional offices. 2 U.S.C. § 1361(d). Thus, the present age discrimination grievance is governed solely by the procedures and remedies set forth in the CAA. Id. Finally, the CAA expressly preserves and maintains the sovereign immunity granted to any Senator or Member of the House of Representatives under article I, § 6, clause 1, of the U.S. Constitution ("Speech or Debate Clause"). 2 U.S.C. § 1413.
Article I § 6 clause 1 of the United States Constitution provides the immunity commonly known as the Speech or Debate Clause, which states in pertinent part that members of Congress: "for any Speech or Debate in either House... shall not be questioned in any other place." U.S. CONST. art. I, § 6, cl. 1. The purpose of the Speech or Debate clause is "to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch." Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Further, it "protects Members against prosecutions that directly impinge upon or threaten the legislative process." Id.3
The express language of the Clause addresses only "Speech or Debate," but it has been consistently held that to confine the Speech or Debate clause solely to words spoken in debate would be an unacceptably myopic view. Gravel, 408 U.S. at 617-18, 92 S.Ct. 2614. The Speech or Debate Clause has been consistently interpreted to protect "[c]ommittee reports, resolutions, and the act of voting...; in short, ... things generally done in a session of the House by one of its members in relation to the business before it." Id. (internal citations omitted). "Rather than giving the clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator." Id. However, everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause, as "[t]he Clause has not been extended beyond the legislative sphere, and legislative acts are not all-encompassing." Doe v. McMillan, 412 U.S. 306, 314, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); see also Gravel, 408 U.S. at 624-25, 92 S.Ct. 2614 ( ...
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Bastien v. Office of Campbell
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Bastien v. The Office of Senator Ben, 06-1047.
...the Speech or Debate Clause of the United States Constitution, U.S. Const. art. I, § 6 ¶ 1. See Bastien v. Office of Senator Ben Nighthorse Campbell, 209 F.Supp.2d 1095, 1104 (D.Colo. 2002). On appeal, this court reversed and remanded. We held that only legislative acts, defined as official......