Taylor v. Office Of Representative John J. Duncan, 3:09-cv-318.

• Decision Date: 21 June 2010
• Docket Number: No. 3:09-cv-318.,3:09-cv-318.
• Citation: 720 F.Supp.2d 945
• Parties: Shirley TAYLOR, Plaintiff, v. Office of Representative John J. DUNCAN, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

720 F.Supp.2d 945

Shirley TAYLOR, Plaintiff,

v.Office of Representative John J. DUNCAN, Jr., Defendant.

No. 3:09-cv-318.

United States District Court, E.D. Tennessee.

June 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Jennifer B. Morton, Maha M. Ayesh, Law Office of Jennifer B. Morton, Knoxville, TN, for Plaintiff.

Russell H. Gore, Victoria L. Botvin, United States House of Representatives, Washington, DC, for Defendant.

MEMORANDUM

CURTIS L. COLLIER, Chief Judge.

In this law suit against a sitting member of the United States Congress the Court is called upon to examine and determine sensitive and difficult issues regarding the internal personnel decisions of a coordinate branch of government and the protections afforded members of Congress by the United States Constitution in members' performance of their legislative duties. Specifically the Court now has before it a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (1) and 12(b)(6) filed by Defendant Office of Representative John J. Duncan, Jr. ¹ (“Defendant”) (Court File No. 9). The Court has carefully reviewed the motion to dismiss and the supporting documents (Court File No. 9), the response filed by Plaintiff Shirley Taylor (“Plaintiff”) (Court File No. 16), the reply filed by Defendant (Court File No. 19), the sur-reply filed by Plaintiff (Court File No. 24), and the applicable law. Taking into account the sensitivity of the issues presented, for following reasons, the Court will DENY the motion (Court File No. 9).

I. RELEVANT FACTS

Plaintiff filed a complaint on July 17, 2009, alleging violations of the Congressional Accountability Act (“CAA”), 2 U.S.C. §§ 1311, which incorporates the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 626 et seq., the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. According to Plaintiff, she was discriminated against based on her age and alleged disability.

Plaintiff worked for Representative John J. Duncan, Jr. (“Congressman Duncan”) from March 1999 to June 2009 as an Assistant Staffer in the Knoxville District Office. Although the parties disagree as to Plaintiff's level of involvement in legislative activities, Plaintiff clearly had contact with constituents. According to Plaintiff, she documented problems or requests from constituents, but transferred calls to Congressman Duncan's Washington, D.C., office whenever a constituent called about a legislative issue. She states she never discussed legislative issues with constituents. Her duties included writing letters of congratulations or condolence, ordering supplies, clipping newspaper articles, answering the phone, opening mail, and running errands. She also worked on constituent concerns regarding non-legislative issues. Defendant disputes Plaintiff's description of her job duties and contends she also was expected to speak to constituents about their opinions and questions on legislative issues. According to Defendant, Plaintiff gathered information from constituents about legislative issues and conveyed this information to Congressman Duncan. This information was used in deciding how to vote on legislation, drafting statements, and deciding which legislation to propose.

Plaintiff contends she was repeatedly harassed by her coworkers because of her age. In addition, Plaintiff asserts her supervisor erroneously believed she had Alzheimer's disease. Plaintiff was informed she would retire in June 2009, although she alleges she had no such plans. Bob Griffitts (“Griffitts”), Congressman Duncan's Chief of Staff, told Plaintiff she would be replaced by a much younger member of the Washington, D.C., staff. Plaintiff contacted the Congressional Accountability Office to challenge the decision to terminate her. On June 8, 2009, Plaintiff received a letter from Griffitts stating she had told him she would retire in June 2009. Plaintiff's employment was terminated effective June 30, 2009, and her last day of work was June 16, 2009, her 66th birthday. She alleges her termination was due to her age and perceived disability.

Defendant contends Plaintiff told Griffitts she planned to retire, but changed her mind after he announced her replacement. According to Defendant, Plaintiff was not allowed to rescind her resignation due to substandard work, which included inability to multitask, refusing to answer phones, getting information wrong, and being unpleasant to coworkers.

II. STANDARD OF REVIEW

Defendant's motion to dismiss under Fed.R.Civ.P. 12 is premised on the absolute immunity extended to legislators in their legislative functions provided by the Speech or Debate Clause in the Constitution, U.S. Const. art. I, § 6, cl. 1. Defendant references both Fed.R.Civ.P. 12(b)(1) and (b)(6) in the motion and does not address whether the standard for dismissal based on subject matter jurisdiction or the standard for failure to state a claim should apply. The appropriate standard of review can be critical to the outcome of a motion to dismiss asserting immunity. Compare Walker v. Jones, 733 F.2d 923, 933 (D.C.Cir.1984) (reversing the judgment of the district court, which granted the defendant's motion to dismiss, finding the plaintiff stated a claim), with id. at 935 (MacKinnon, J., dissenting) (concluding the judgment should be affirmed, using the standard for jurisdictional motions to dismiss).

As discussed below, the Court concludes the standard for Fed.R.Civ.P. 12(b)(6) is consistent with the purpose and application of absolute immunity under the Speech or Debate Clause. However, since both parties submitted matters outside the pleadings, the Court will treat the motion as one for summary judgment.

A. Standard of Review for Speech or Debate Clause Motions to Dismiss

Although absolute immunity under the Speech or Debate Clause has been referred to as a “jurisdictional bar,” see, e.g., Fields v. Office of Johnson, 459 F.3d 1, 13 (D.C.Cir.2006), it is more appropriately characterized as a defense to suit. Powell v. McCormack, 395 U.S. 486, 503, 512, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (describing legislative immunity as a bar to judicial review of certain legislative acts and finding the district court clearly had subject matter jurisdiction); compare Cady v. Arenac County, 574 F.3d 334, 344 (6th Cir.2009) (“The Sixth Circuit has largely followed the ‘jurisdictional bar’ approach [for eleventh amendment immunity] in Edelman [ v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ] by holding that a federal court ‘can raise the question of sovereign immunity sua sponte because it implicates important questions of federal-court jurisdiction and federal-state comity.’ ” (quoting S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.2008))), with Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (“The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” (quoting Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991))). In the two cases where immunity under the Speech or Debate Clause was asserted in an employment case, the Supreme Court did not dispute the district court's subject matter jurisdiction. In Davis v. Passman, the Court treated Speech or Debate Clause immunity as a defense to a cause of action, 442 U.S. 228, 236 n. 11, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and determined “[i]t is clear that the District Court had jurisdiction” to consider the claim. Id. at 236, 99 S.Ct. 2264. Almost twenty years later, the Court declined to challenge the district court's “determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity.” Office of Dayton v. Hanson, 550 U.S. 511, 514, 127 S.Ct. 2018, 167 L.Ed.2d 898 (2007).

Other official immunities do not divest the court of jurisdiction over the case. The threshold issue of whether absolute immunity applies is based on the facts in the complaint. Kalina v. Fletcher, 522 U.S. 118, 122, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (“In determining immunity, we accept the allegations of respondent's complaint as true.”); Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (assuming the plaintiff's allegations are true and “they allege constitutional violations for which § 1983 provides a remedy” in deciding whether prosecutors were entitled to absolute immunity from liability). In Doe v. McMillan, 412 U.S. 306, 318-20, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), the Supreme Court did not distinguish a procedural difference in the analysis of immunity under the Speech and Debate Clause and common law official immunity, assessing whether immunity would apply based on the facts alleged in the complaint. Id. at 317-18, 93 S.Ct. 2018; see also Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (holding the “controverted evidence in the record ... affords more than merely colorable substance to petitioners' assertions” and “this showing is sufficient to entitle petitioners to go to trial” against a United States Senate subcommittee's counsel despite the assertion of immunity under the Speech or Debate Clause).

Even if legislative immunity does not shield a defendant from a lawsuit, it can later operate at trial as an evidentiary privilege. United States v. Gillock, 445 U.S. 360, 369-70, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (noting the evidentiary privilege under the Speech or Debate Clause protects federal legislators); United States v. Gravel, 408 U.S. 606, 628-29, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (limiting the questions that could be asked of a senator and his aide in a grand jury investigation); United States v. Johnson, 383 U.S. 169, 173, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (noting the Speech or Debate Clause “clearly proscribes at least some of the evidence taken during trial.”); Bastien v. Office of Senator Campbell, 390...