United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2013 Decided June 28, 2013

No. 12-5119

LATAUNYA HOWARD,

APPELLANT/CROSS-APPELLEE

v.

THE OFFICE OF THE CHIEF ADMINISTRATIVE OFFICER OF THE 

UNITED STATES HOUSE OF REPRESENTATIVES,

APPELLEE/CROSS-APPELLANT

Consolidated with 12-5120

Appeals from the United States District Court

for the District of Columbia

(No. 1:09-cv-01750)

Ross A. Nabatoff argued the cause for appellant. With 

him on the briefs was Stanley M. Brand. Andrew D. Herman

entered an appearance.

Kerry W. Kircher, General Counsel, U.S. House of 

Representatives, argued the cause for appellee. With him on 

the briefs were William Pittard, Deputy General Counsel, 

Christine Davenport, Senior Assistant Counsel, and Todd B. 

Tatelman, Mary Beth Walker, and Eleni M. Roumel, Assistant

Counsel.
2

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit 

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

EDWARDS, Senior Circuit Judge: This appeal requires the 

court to consider whether the Speech or Debate Clause of the 

Constitution, U.S. CONST. art. I, § 6, cl. 1, bars this lawsuit by 

LaTaunya Howard against her former employer, the Office of 

the Chief Administrative Officer (“OCAO”) of the United 

States House of Representatives, for alleged racial 

discrimination and retaliation in violation of the 

Congressional Accountability Act (“CAA”), 2 U.S.C. 

§§ 1301-1438. Section 404(2) of the CAA creates a cause of 

action for covered employees in the legislative branch to sue 

in federal court for violations of the statute. Article I, section 

6, in turn, provides that “for any Speech or Debate in either 

House, [Senators and Representatives] shall not be questioned 

in any other Place.” And “[t]he Speech or Debate Clause 

operates as a jurisdictional bar when the actions upon which a 

plaintiff [seeks] to predicate liability [are] legislative acts.”

Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13

(D.C. Cir. 2006) (en banc) (quotations, citations, and 

alterations omitted) appeal dismissed and cert. denied sub 

nom. Office of Senator Mark Dayton v. Hanson, 550 U.S. 511 

(2007).

The CAA “does nothing to a Member’s Speech or Debate 

Clause immunity.” Id. at 8. However, “a Member’s personal 

office may be liable under the [CAA] for misconduct 

provided that the plaintiff can prove his case without 

inquiring into legislative acts or the motivation for legislative 

acts.” Id. at 17 (quotations and citation omitted). This is so 

because “[t]he Speech or Debate Clause . . . does not prohibit 
3

inquiry into illegal conduct simply because it has some nexus

to legislative functions, or because it is merely related to, as 

opposed to part of, the due functioning of the legislative 

process.” Id. at 10 (quotations and citations omitted).

In this case, we must determine whether the Speech or 

Debate Clause requires dismissal of Ms. Howard’s suit under 

the CAA. Ms. Howard, who is African American, was hired

by the OCAO as Deputy Budget Director on April 15, 2003; 

she was promoted to Budget Director in 2006. In January 

2009, the position of Budget Director was abolished and Ms. 

Howard was involuntarily transferred to the position of Senior 

Advisor. On April 14, 2009, Ms. Howard was terminated by 

the OCAO for alleged insubordination. She commenced this 

action in District Court on September 15, 2009. Her 

complaint alleged “that: (1) her termination was based on her 

race; (2) her transfer from Budget Director to Senior Advisor 

constituted a demotion, which was based on her race; (3) she 

received less pay, by approximately $22,000 per year, than 

the Caucasian Senior Advisors; and (4) her termination was 

motivated in part by retaliatory animus stemming from her 

prior complaints to human resources regarding pay disparities 

and other issues.” Howard v. Office of Chief Admin. Officer of 

U.S. House of Representatives, 793 F. Supp. 2d 294, 297

(D.D.C. 2011). The first, second, and fourth of these claims 

are before us on appeal.

The OCAO moved to dismiss the action in the District 

Court on the ground that Ms. Howard could not prove her 

claims without inquiring into matters protected by the Speech 

or Debate Clause. Id. at 295. The District Court denied the 

OCAO’s motion as to Ms. Howard’s claim that her transfer 

was an unlawful demotion based on her race. Id. at 308. 

However, the District Court held that Ms. Howard’s claims 

that her termination from the OCAO was motivated by her 

race and by retaliatory animus must be dismissed “because 
4

they cannot proceed without inquiry into actions –

specifically, communications – that are shielded by the 

Speech or Debate Clause.” Id. On January 4, 2012, the 

District Court granted Ms. Howard’s Motion to Certify for 

Interlocutory Appeal, Howard v. Office of Chief Admin. 

Officer of U.S. House of Representatives, 840 F. Supp. 2d 52 

(D.D.C. 2012); and on April 13, 2012, this court granted Ms. 

Howard’s Petition for Permission to Appeal, In re Howard, 

2012 U.S. App. LEXIS 7593 (D.C. Cir. Apr. 13, 2012). We 

have jurisdiction over Ms. Howard’s appeal and the OCAO’s 

cross-appeal pursuant to 28 U.S.C. § 1292(b). 

Both sides agree that the disputed adverse actions – Ms. 

Howard’s alleged demotion and termination – are not 

legislative acts. Hence, there is no jurisdictional bar to this 

action. The question in this case is whether Ms. Howard’s

claims are precluded or limited by the evidentiary, 

testimonial, or non-disclosure privileges that emanate from 

the Speech or Debate Clause. See Fields, 459 F.3d at 14 

(explaining that even “[w]hen the Clause does not preclude 

suit altogether, it still protect[s] Members from inquiry into 

legislative acts or the motivation for actual performance of 

legislative acts” (quotations and citation omitted)).

It is clear that, based on the parties’ submissions to the 

District Court, Ms. Howard’s demotion claim is not 

precluded. Daniel Beard, who was the Chief Administrative 

Officer (“CAO”), submitted an affidavit (“Beard Affidavit”) 

to the District Court stating three reasons to support Ms. 

Howard’s demotion. As we explain below, it is undisputed 

that the first two reasons and part of the third reason do not 

implicate the Speech or Debate Clause. The remaining reason 

is that Ms. Howard communicated to the Committee on 

Appropriations information that reflected her own preferences 

regarding the House budget rather than the views of the CAO. 

An attempt to quarrel with this allegation might well create a 
5

Speech or Debate Clause problem, but Ms. Howard stipulates 

that she communicated her personal views. Her only claim is 

that this is not what motivated her alleged demotion. In other 

words, Ms. Howard contends that she must “be afforded a fair 

opportunity to show that [the OCAO’s] stated reason [for her 

involuntary transfer] was in fact pretext.” McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 804 (1973). The District Court 

correctly held that “[i]f, under Fields, Howard’s transfer was 

not a legislative act, and if Howard can prove that the 

[O]CAO’s justification for her transfer was not the real reason 

behind it – without probing whether, how, or why she actually 

communicated with committee staff regarding the budget and 

the appropriations bill – then the Speech or Debate Clause 

should present no bar to her claim.” Howard, 793 F. Supp. 2d 

at 307.

Likewise, Ms. Howard’s termination claim is not 

precluded. The Beard Affidavit asserts that Ms. Howard was 

terminated because she refused to complete a task she was 

assigned. Ms. Howard concedes that she did not complete the 

task, but says that the reason was that she did not have the 

necessary computer, data access, or staff support. There is an 

obvious credibility dispute between the parties. However, 

whether Ms. Howard had the resources and support needed to 

complete the task to which she was assigned concerns nonlegislative matters and, thus, does not implicate the Speech or 

Debate Clause.

In sum, based on the record before us, we hold that the

Speech or Debate Clause does not require the dismissal of this 

action. Ms. Howard may proceed with her all of her claims 

under the CAA, subject to the applicable strictures of the 

Speech or Debate Clause. Accordingly, we affirm in part and 

reverse in part the judgment of District Court and remand the 

case for further proceedings consistent with this opinion.
6

I. BACKGROUND

A. Facts

Pursuant to House Rule II(4)(a), the CAO “shall have 

operational and financial responsibility for functions as 

assigned by the Committee on House Administration.” In 

addition, pursuant to House Rule II(4)(b), the CAO is, inter 

alia, responsible for providing semiannual financial and 

operational reports to the Committee on House 

Administration. The OCAO avers that the CAO supports the 

House Committees on Appropriations and House 

Administration by providing budget figures, financial 

analyses, and financial projections. See Beard Aff. ¶ 6, 

reprinted in Joint Appendix (“J.A.”) 93. Of particular 

relevance to this case, the CAO is responsible for the 

Government Contributions Account (the “Account”), “which 

encompasses the employer-paid portion of [various 

employment taxes and benefits for all House employees, and]

is one of the largest line items in the annual legislative branch 

appropriations bill.” Id. ¶ 9, reprinted in J.A. 95. The parties 

agree that the OCAO engages in legislative activities, 

including many concerning the Account, but that not all of its 

activities are legislative. The parties also agree that Daniel 

Beard was the CAO at all times relevant in this case.

LaTaunya Howard avers that she received the highest or 

second-highest overall rating in her performance evaluations

when she served as Deputy Budget Director and Acting 

Budget Director. In 2006, she was promoted to the position of 

“Budget Director” – also known as “Director of the Budget 

Management Directorate” – after a Caucasian male was 

offered and declined the position. Ms. Howard alleges that 

she continued to receive high performance ratings throughout 

her tenure at the OCAO, although she disputed an 

“unjustifiably lower” evaluation on her last pre-termination 

evaluation. Pl.’s First Am. Compl. ¶ 29, reprinted in J.A. 14.
7

The OCAO asserts that, as Budget Director, Ms. Howard 

had major legislative responsibilities, including: preparing a 

budget for the House of Representatives for upcoming fiscal 

years; working cooperatively with other non-OCAO offices in 

the House, including the Committees on Appropriations and 

House Administration, leadership offices, and others; and 

communicating budget information to the CAO, the 

Committees on Appropriations and House Administration,

and other employees of the OCAO. Beard Aff. ¶ 8, reprinted 

in J.A. 94.

The parties differ in their explanations as to the reasons 

for Ms. Howard’s involuntary transfer. Ms. Howard alleges 

that, in January 2009, she was informed that the CAO was 

reorganizing the OCAO. Most relevantly, the CAO abolished 

the Budget Management Directorate (and the position of 

“Budget Director”) and gave Ms. Howard the new title of 

Senior Advisor, reporting to Deputy CAO Ali Qureshi. She 

further alleges that she was told the position of Budget 

Director was being eliminated and that she would shift her 

focus to “analytical work for CAO programs” and would no 

longer have managerial responsibilities. Pl.’s First Am. 

Compl. ¶¶ 35-36, reprinted in J.A. 15. The OCAO’s Answer 

admits that Howard was told that the budget directorate was 

being abolished. Answer ¶ 35, reprinted in J.A. 38. Ms. 

Howard further avers that she was told that her reassignment 

was not “the result of performance issues.” Decl. of LaTaunya 

Howard ¶ 2, reprinted in J.A. 157.

By contrast, the Beard Affidavit avers that three factors 

led to Ms. Howard’s transfer: 

(a) “Ms. Howard lacked the interpersonal skills to 

be an effective manager”; 

(b) Ms. Howard “had analytical skills that were 

useful to the [OCAO]”; and 
8

(c) “Ms. Howard made it difficult for [the CAO] to 

effectively support the legislative activities of 

the Committees on Appropriations and House 

Administration by not sharing information with 

other employees of the [OCAO] who assisted 

[the CAO] on budget matters, by not listening to 

other employees of the [OCAO] who assisted 

[the CAO] on budget matters, and by 

communicating to the Committee on 

Appropriations and others information that 

reflected her own budgetary preferences and 

views rather than the views of the CAO.” 

Beard Aff. ¶ 13, reprinted in J.A. 97-98.

The OCAO asserts that following her involuntary transfer 

to Senior Advisor, Ms. Howard was responsible for 

implementing and analyzing various House policies and 

programs and for carrying out other duties as assigned by the 

CAO, including an assignment concerning the Government 

Contributions Account. See id. ¶ 12, reprinted in J.A. 96-97.

The parties’ contentions regarding the Account

assignment diverge. Ms. Howard alleges that on February 13, 

2009, the Deputy CAO asked her to work with a colleague “to 

set up the projection file for the [Account].” Pl.’s First Am. 

Compl. ¶ 38, reprinted in J.A. 16. In its Answer, the OCAO 

confirmed this. Answer ¶ 38, reprinted in J.A. 39. Ms. 

Howard avers that her colleague was uncooperative and 

refused to help her complete the assignment. See Pl.’s First 

Am. Compl. ¶ 43, reprinted in J.A. 16. Ms. Howard also 

avers that she did not have access to the database necessary to 

complete her task. Id. ¶ 57, reprinted in J.A. 18-19. She

further alleges that she repeatedly attempted to speak with the 

Deputy CAO about her difficulties in getting her colleague to 

work with her and her inability to gain access to the electronic 

files she needed to complete the assignment. Id. ¶¶ 43-60, 
9

reprinted in J.A. 16-19. Ms. Howard alleges that she was 

terminated for insubordination based on her failure to 

complete this assignment, despite her efforts to do so. Id.

¶ 64, reprinted in J.A. 20.

The Beard Affidavit describes Howard’s 2009 

assignment involving the Account differently, calling it a 

“one-time, catch-up assignment that resulted from the fact 

that the Account had not been analyzed and reconciled for 

several months, i.e., during a period when Ms. Howard, as 

Budget Director, was responsible for that work.” Beard Aff. 

¶ 12, reprinted in J.A. 97. The OCAO and the Committees on 

Appropriations and House Administration needed this 

analysis and reconciliation completed to prepare for March 

2009 budget hearings. See id. The Beard Affidavit states that, 

“[b]etween January and April 2009, Mr. Qureshi repeatedly 

instructed Ms. Howard to complete the work on the . . . 

Account which he had assigned to her and, throughout this 

period, Ms. Howard repeatedly refused.” Id. ¶ 14, reprinted in 

J.A. 98. The Beard Affidavit further asserts that “Ms. Howard 

had the necessary computer and data access to enable her to 

complete this task.” Id. 

On April 14, 2009, the OCAO terminated Ms. Howard 

“because she had repeatedly refused to analyze and reconcile the 

. . . Account as . . . [she had been] repeatedly instructed.” Id.

B. The Decision Below

As noted above, the District Court allowed Ms. Howard’s 

demotion claim to proceed in a limited manner, holding that 

Howard may seek to show that her communications with 

the [House committees] did not prompt her transfer by 

showing that such an explanation is contradicted by [the 

OCAO’s] other representations or not reflected in her 

performance evaluations or other documentation. But she 
10

may not attempt to show that those communications 

never took place or that they were other than as [the 

OCAO] described them. Nor may she in any other way 

probe the nature, extent or substance of those exchanges. 

This will likely make it more difficult to prove pretext, 

but that is the result that the Constitution requires.

Howard, 793 F. Supp. 2d at 308. 

At the same time, the District Court dismissed Howard’s 

termination and retaliation claims, accepting the Beard 

Affidavit’s account of the events surrounding Howard’s 

discharge and concluding that 

dismissal of Howard’s termination claims reflects . . . 

that the Clause protects internal legislative branch 

communications regarding specific legislative activities 

that are themselves within the scope of the Clause.

Id. at 311. Because the District Court found that Howard 

could not prove that she was not insubordinate without 

delving into protected legislative activities, it dismissed her 

termination and retaliation claims. Id. at 308-11.

II. ANALYSIS

A. Standard of Review

Because this case comes to us on an appeal from a 

motion to dismiss, we review the District Court decision de 

novo. This is true regardless of whether the OCAO’s motion 

is characterized as one to dismiss for lack of jurisdiction 

under Rule 12(b)(1), FED. R. CIV. P. 12(b)(1), Herbert v. Nat’l 

Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992), or as one to 

dismiss for failure to state a cause of action under Rule 

12(b)(6), FED. R. CIV. P. 12(b)(6), Atherton v. D.C. Office of 

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).
11

B. The Speech or Debate Clause 

In furtherance of separation of powers, the Framers

sought to “provide some practical security for each [branch of 

government], against the invasion of the others.” THE 

FEDERALIST NO. 48 (James Madison). The Speech or Debate

Clause serves “to insure that the legislative function the 

Constitution allocates to Congress may be performed 

independently” without subjecting the legislature to 

“accountability before a possibly hostile judiciary.” Eastland 

v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975). The 

Supreme Court has, “[w]ithout exception . . . read the Speech 

or Debate Clause broadly.” Id. at 501. Indeed, the Court has 

held that the protections of the Clause apply “not only to a 

Member but also to his aides insofar as the conduct of the 

latter would be a protected legislative act if performed by the 

Member himself.” Gravel v. United States, 408 U.S. 606, 618 

(1972). 

The Clause protects legislators from liability for all 

activities within the “sphere of legitimate legislative activity,”

Eastland, 421 U.S. at 503, including all activities that are

an integral part of the deliberative and communicative 

processes by which Members participate in committee 

and House proceedings with respect to the consideration 

and passage or rejection of proposed legislation or with 

respect to other matters which the Constitution places 

within the jurisdiction of either House.

Gravel, 408 U.S. at 625. “Legislative activity” is broadly

construed, encompassing not only anything “generally done in 

a session of the House by one of its members in relation to the 

business before it,” id. at 624 (quotations and citation

omitted), but also “conduct at committee hearings, 

preparation of committee reports, authorization of committee 

publications and their internal distribution, and issuance of 
12

subpoenas concerning a subject on which legislation could be

had.” McSurely v. McClellan, 553 F.2d 1277, 1284-85 (D.C. 

Cir. 1976) (quotations and citations omitted); see also, e.g., 

id. at 1296-97 (“[T]he subsequent use of . . . documents by the 

committee staff in the course of official business is privileged 

legislative activity.”). The Clause also protects staff members’

preparations for legislative activities. See, e.g., Gravel, 408 

U.S. at 628-29.

As a general matter, the Speech or Debate Clause affords 

three distinct protections: (a) an immunity from “a civil or 

criminal judgment against a Member because [of] conduct 

[that] is within the sphere of legitimate legislative activity,”

Doe v. McMillan, 412 U.S. 306, 312 (1973) (quotations and 

citation omitted); (b) an evidentiary privilege, which, in 

relevant part, bars a party in a civil suit from “[r]evealing 

information as to a legislative act” for use against a protected 

party, United States v. Helstoski, 442 U.S. 477, 490 (1979); 

and (c) a testimonial and non-disclosure privilege that 

prevents a protected party from being compelled to answer 

questions about legislative activity or produce legislative 

materials, see, e.g., United States v. Rayburn House Office 

Bldg., 497 F.3d 654, 659-60 (D.C. Cir. 2007). 

B. The Fields Plurality Opinion Framework: Applying

the Speech or Debate Clause in Employment Cases 

In 1995 Congress enacted the CAA, 2 U.S.C. § 1301 et 

seq., which extends to certain legislative branch employees 

the protections of a number of remedial labor and 

employment statutes, including Title VII of the Civil Rights 

Act of 1964. See id. § 1302(a)(2); 42 U.S.C. § 2000e et seq.

Among other protections, the CAA bars discrimination based 

on race, 2 U.S.C. § 1311(a)(1), and includes an anti-retaliation 

provision, 2 U.S.C. § 1317(a). The statute applies to any 

employee of the House of Representatives, but explicitly 

declines to waive any protections afforded by the Speech or 
13

Debate Clause. See id. §§ 1301(3)(A), 1413; see also Fields, 

459 F.3d at 8 (CAA does not waive immunity or privileges 

afforded by the Speech or Debate Clause). 

In Fields, the court, sitting en banc, offered a framework

for determining when the Speech or Debate Clause requires 

dismissal of suits brought under the CAA. Unfortunately, the 

disposition in Fields includes no clear majority opinion. The 

plurality opinion authored by Judge Randolph, who was 

joined by then-Chief Judge Ginsburg, Judge Henderson, and 

Judge Tatel, states that “a Member’s personal office may be 

liable under the [CAA] for misconduct provided that the 

plaintiff can prove his case without inquiring into legislative 

acts or the motivation for legislative acts.” 459 F.3d at 17

(quotations and citation omitted). The opinion by Judge 

Rogers concurs in part, but expresses the view that the court 

should have left “open the question of how the Clause may 

limit evidence offered by parties in CAA litigation and 

whether the role of the Member’s personal office as the 

defendant under the CAA affects the application of the 

Clause.” Id. at 18 (Rogers, J., concurring in part and in the 

judgment). The opinion by Judge Brown, who was joined by

Judge Sentelle and Judge Griffith, concurs in the judgment, 

but expresses a relatively narrow view of the Speech or 

Debate Clause. Id. at 21-33. (Brown, J., concurring in the 

judgment).

Judge Tatel’s separate concurring opinion aptly explains 

the principal differences between Judge Randolph’s plurality 

opinion and Judge Brown’s concurring opinion:

Judge Randolph’s opinion for the court holds that 

because neither of the cases before [the court in Fields] 

rests on legislative acts, we have no basis for dismissing 

them. Judge Randolph then points out that the Speech or 

Debate Clause may preclude some evidence, that in 

many employment cases it may preclude the very 
14

evidence upon which plaintiffs seek to rely, and that if it 

does, the suit may not proceed. [Judge Brown’s]

concurrence focuses on whether the defendant functions 

as a Member’s alter ego, arguing that wide variations in 

Speech or Debate Clause protection hinge on the answer 

to that question. 

Id. at 18-19 (Tatel, J., concurring). Although there are four 

different opinions in Fields, none would embrace a result 

different from the judgment that we reach in this case. Our 

discussion of Fields focuses on Judge Randolph’s plurality 

opinion because, at least in the context of this case, it reflects 

the broadest view of the Speech or Debate Clause.

As noted in the Fields plurality opinion, there are two 

bases for the application of the Speech or Debate Clause to 

congressional employment actions. First, some employment 

decisions themselves constitute legislative acts and are 

therefore immune from suit under the Clause. Id. at 9-10

(plurality opinion). The parties in this case agree that neither 

Ms. Howard’s demotion nor her termination were themselves 

legislative acts.

Second, the Fields plurality opinion states that “[w]hen 

the [immunity component of the] Clause does not preclude 

suit altogether,” the evidentiary, testimonial, and nondisclosure privileges “still protect[] Members from inquiry 

into legislative acts or the motivation for actual performance 

of legislative acts.” Id. at 14 (quotations, citations, and 

alterations omitted). In “many cases,” the Fields plurality 

opinion notes, it may be impossible to explore the reasons for 

the challenged employment action without discussing 

legislative acts and this may lead to the dismissal of CAA 

claims. Id. at 15-16; see also id. at 20 (Tatel, J., concurring) 

(non-disclosure protection under Clause could “preclude[] 

litigation” of some CAA claims). The question in this case is 

whether Ms. Howard can pursue her claims under the CAA 
15

without inquiring into legislative acts or the motivation for 

legislative acts.

In many employment discrimination cases, proof of 

“pretext” will be crucial to the success of the claimant’s case. 

See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248, 256 (1981); McDonnell Douglas, 411 U.S. at 804. Once

a plaintiff has made out a prima facie case of discrimination 

and the employer has offered a nondiscriminatory explanation 

for its actions, the plaintiff must “demonstrate that the 

proffered reason was not the true reason for the employment 

decision.” Burdine, 450 U.S. at 256. In order to show that an 

employer’s stated reason for a contested action was in fact a

pretext for proscribed discrimination, an employee may need 

to adduce evidence regarding the employer’s work practices. 

In the context of cases arising under the CAA, this may 

require a complaining employee to seek evidence that 

implicates legislative matters, something that the Speech or 

Debate Clause may preclude. 

The Fields plurality opinion addresses the challenges 

faced by a complaining party who seeks to prove pretext in 

support of a charge of discrimination under the CAA:

Suppose a plaintiff sues . . . claiming her discharge 

violated the [CAA]. Suppose further that she is able to 

make out a prima facie case of discrimination . . . . If the 

employing office produces evidence – by affidavit, for 

example – that the personnel decision was made because 

of the plaintiff’s poor performance of conduct that is an 

integral part of “the due functioning of the [legislative] 

process,” . . . then for the plaintiff to carry her burden of 

persuasion, she must “demonstrate that the proffered 

reason was not the true reason for the employment 

decision” . . . . In many cases, the plaintiff would be 

unable to do so without “draw[ing] in question” the 

legislative activities and the motivations for those 
16

activities asserted by the affiant – matters into which the 

Speech or Debate Clause prohibits judicial inquiry. . . .

Fields, 459 F.3d at 15-16 (citations omitted). The Fields

plurality opinion explains that, in order to invoke the Speech 

or Debate Clause in such cases, 

the employing office should include with [its] evidence 

an affidavit from an individual eligible to invoke the 

Speech or Debate Clause recounting facts sufficient to 

show that the challenged personnel decision was taken 

because of the plaintiff’s performance of conduct 

protected by the Speech or Debate Clause. . . . The 

affidavit must indicate into what “legislative activity” or 

into what matter integral to the due functioning of the 

legislative process the plaintiff’s suit necessarily will 

inquire.

With that submission, the district court must then 

determine whether the asserted activity is in fact 

protected by the Speech or Debate Clause. If it is, the 

action most likely must be dismissed . . . . We need not 

decide today whether a case in which the plaintiff uses 

evidence unrelated to legislative acts – such as . . . 

evidence that at the time of discharge the [employer] 

offered a different reason for the employment action 

from the one alleged in the affidavit – to demonstrate that 

the defendant’s legislative explanation is pretext requires 

more questioning of the defendant’s legislative motives 

than the Speech or Debate Clause allows. We merely 

note that a plaintiff who seeks to prevail by quarreling 

with the defendant’s statements about activity protected 

by the Speech or Debate Clause must fail.

Id. at 16-17.
17

It is noteworthy that the Fields plurality opinion does not 

suggest that the District Court must accept as true all

allegations contained in an affidavit from an individual 

eligible to invoke the Speech or Debate Clause; rather it 

instructs the District Court to determine whether the conduct 

that forms the basis of the plaintiff-employee’s suit is, in fact, 

protected by the Clause. 

Importantly, nothing in the Fields plurality opinion

prevents an employee who is pursuing an action under the 

CAA from having “a fair opportunity to show that [the 

employer’s] stated reason [for the disputed adverse action] 

was in fact pretext.” McDonnell Douglas, 411 U.S. at 804. 

Given the strictures of the Speech or Debate Clause, a “fair 

opportunity” means that the complaining party may pursue 

her claim to the fullest, so long as she can prove her case 

“without inquiring into legislative acts or the motivation for 

legislative acts.” Fields, 459 F.3d at 17 (quotations and 

citation omitted).

If the lawsuit does not inquire into legislative motives or 

question conduct part of or integral to the legislative 

process, or if the district court determines that the 

asserted activity is not in fact part of or integral to the 

legislative process, then the case can go forward.

Id. at 16. 

The OCAO suggests that an employee should be

precluded from seeking to prove pretext once an individual 

who is eligible to invoke the Speech or Debate Clause has 

submitted an affidavit that offers a nondiscriminatory 

explanation for the contested employment action. Nothing in 

Fields or in any decision issued by the Supreme Court 

supports this view of the Speech or Debate Clause. Indeed,

the only reasonable reading of the applicable precedent 

indicates that a plaintiff-employee may pursue her claims 
18

even after her employer has filed a Fields affidavit, provided 

that she does not contest her employer’s conduct of protected 

legislative activities and that she prove her allegations of 

pretext using evidence that does not implicate protected 

legislative matters.

In United States v. Brewster, for example, the Supreme 

Court allowed prosecution of a former Senator who accepted 

a bribe in exchange for legislative action. See 408 U.S. 501, 

525-29 (1972). The Court explained that the act of taking the 

bribe was not legislative in nature, as the government could 

prove bribery without inquiring into whether the Senator had 

actually done the legislative deed the bribe was intended to 

induce. See id. The Court concluded that “[t]he only 

reasonable reading of the Clause, consistent with its history 

and purpose, is that it does not prohibit inquiry into activities 

that are casually or incidentally related to legislative affairs 

but not a part of the legislative process itself.” Id. at 528.

Fields says nothing to the contrary.

C. The OCAO’s “Jurisdictional” Challenge

Before the District Court, the OCAO filed a motion 

asserting that Ms. Howard’s complaint should be dismissed 

pursuant to Rule 12(b)(1) for lack of subject matter 

jurisdiction. The OCAO has renewed this contention on 

appeal. The arguments offered by the OCAO are misguided. 

“The Speech or Debate Clause operates as a jurisdictional 

bar when the actions upon which [a plaintiff seeks] to 

predicate liability [are] legislative acts.” Fields, 459 F.3d at 

13 (quotations, citation and alterations omitted). As noted 

above, the parties in this case agree that the disputed adverse 

actions – Ms. Howard’s alleged demotion and termination –

are not legislative acts. Therefore, there is no jurisdictional 

bar to this action. Accordingly, we will construe OCAO’s 

motion as one to dismiss pursuant to Rule 12(b)(6) for failure 
19

to state a claim. See, e.g., Fraternal Order of Police Dep’t of 

Corr. Labor Comm. v. Williams, 375 F.3d 1141, 1143-44 

(D.C. Cir. 2004) (construing a Rule 12(b)(1) motion as one 

arising under 12(b)(6) where the court had jurisdiction to 

consider the case).

The OCAO’s jurisdiction argument relies on its 

contention that “when you marry the non-disclosure privilege 

. . . with the likelihood that many of these complaints are 

going to have to be dismissed at this early stage, in effect 

what you’re talking about is another form of immunity.” Tr. 

of Oral Arg. at 32. In other words, the OCAO seeks to have 

this court create a new basis for immunity under the Speech 

or Debate Clause. We decline the invitation. See Brewster, 

408 U.S. at 528 (explaining that because “[t]he Speech or 

Debate Clause does not prohibit inquiry into illegal conduct 

simply because it has some nexus to legislative functions,” a 

defendant “could not . . . obtain[] immunity from prosecution 

by asserting that the matter being inquired into was related to 

the motivation for his [legislative actions]”).

The OCAO has advanced no credible argument to 

support the dismissal of Ms. Howard’s complaint under Rule 

12(b)(6). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face. A claim has facial 

plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations 

omitted). Ms. Howard’s complaint easily satisfies this 

standard. The OCAO seems to think it is entitled to a 

dismissal because Ms. Howard may face difficulties in

proving her case without delving into protected legislative 

activities. See Br. of OCAO at 50-56. This is not a basis for 

dismissal of a case under Rule 12(b)(6). A court must 
20

“assess[] the legal feasibility of the complaint, but [may] not 

weigh the evidence that might be offered to support it.” 

Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 

155 (2d Cir. 2006).

Under applicable law, to get to trial, a plaintiff like Ms. 

Howard must “produce[] sufficient evidence that, when taken 

together, could lead a reasonable jury to conclude that the 

[employer’s] proffered reason [for an adverse employment 

action] was pretext for racial discrimination.” Evans v. 

Sebelius, No. 11-5120, 2013 WL 2122072, at *3 (D.C. Cir. 

May 17, 2013). Ms. Howard may not be able to meet this 

standard because of the strictures of the Speech or Debate 

Clause – which will bar her from inquiring into legislative 

motives or question conduct part of or integral to the 

legislative process – but this remains to be seen as the case 

proceeds.

D. Ms. Howard’s Demotion Claim

For the reasons indicated below, we find that the District 

Court had no basis under Rule 12(b)(1) or Rule 12(b)(6) to 

dismiss Ms. Howard’s claim that her involuntary transfer was 

a demotion based on her race or to grant judgment in favor of 

the OCAO on this issue. We agree with the District Court that 

Ms. Howard will be able to pursue this claim without probing 

protected legislative activities. Because the District Court 

allowed this claim to proceed, we affirm its decision and deny 

OCAO’s cross-appeal.

Ms. Howard alleges that at the time of her demotion, she 

was told that “a decision was made to ‘do away with’ the 

Budget Director title,” Pl.’s First. Am. Compl. ¶ 35, reprinted 

in J.A. 15, and Appellee’s Answer confirms this account. 

Answer ¶ 35, reprinted in J.A. 38. Ms. Howard further alleges 

that when she asked directly, she was told that her forced 

transfer was not the result of performance issues. Decl. of 
21

LaTaunya Howard ¶ 2, reprinted in J.A. 157. The OCAO 

does not dispute this assertion.

The Beard Affidavit submitted by the OCAO offers three 

completely different reasons for Ms. Howard’s forced 

transfer. The first justification in the Beard Affidavit states 

that “Ms. Howard lacked the interpersonal skills to be an 

effective manager.” Beard Aff. ¶ 13, reprinted in J.A. 97. The 

second justification states that Ms. Howard “had analytical 

skills that were useful to the [OCAO].” Id. The parties agree 

that Ms. Howard’s analytical and managerial abilities do not 

implicate protected legislative matters. See Tr. of Oral Arg. at 

60-61 (OCAO conceding that these justifications are nonlegislative).

The third asserted justification in the Beard Affidavit 

includes three parts. It states that Ms. Howard was 

involuntarily transferred because she “made it difficult for 

[the CAO] to effectively support the legislative activities of 

the Committees on Appropriations and House Administration

• by not sharing information with other employees of 

the [OCAO] who assisted [the CAO] on budget 

matters, 

• by not listening to other employees of the [OCAO]

who assisted [the CAO] on budget matters, and 

• by communicating to the Committee on 

Appropriations and others information that reflected 

her own budgetary preferences and views rather than 

the views of the CAO.”

Beard Aff. ¶ 13, reprinted in J.A. 97-98. Ms. Howard 

concedes that when she pursues her case before the District 

Court, she will be barred by the Speech or Debate Clause 

from disputing the accuracy of the OCAO’s assertion that she 
22

advanced her own budgetary views rather than those of the 

CAO. Were she to do this, she would be “quarreling with [the 

CAO’s] statements about activity protected by the Speech or 

Debate Clause,” which the Fields plurality opinion explicitly 

prohibits. 459 F.3d at 17.

Nonetheless, Ms. Howard surely may offer evidence that 

does not inquire into legislative acts or the motivation for 

legislative acts in order to demonstrate that the OCAO’s 

alleged reasons for her demotion are pretextual. For example, 

Ms. Howard may seek to prove pretext by showing that the 

reasons that the OCAO offered when she was demoted – that 

her position was being eliminated and that there were no 

underlying performance deficiencies – differ from the reasons 

that CAO asserts in the Beard Affidavit. See, e.g., Geleta v. 

Gray, 645 F.3d 408, 413 (D.C. Cir. 2011) (noting that 

“shifting and inconsistent justifications are probative of 

pretext” (quotation and citation omitted)); Czekalski v. Peters, 

475 F.3d 360, 367 (D.C. Cir. 2007) (an employee may pursue 

her discrimination claim where she “proffered evidence from 

which a jury could have concluded that each of the”

contemporaneous reasons her employer gave “was false, and 

that [the employer’s] subsequent clarifications represented 

nothing more than back-pedaling” such that “a jury could 

have concluded that the employer’s stated reason was 

pretextual” (quotation and citation omitted)). By the same 

token, the OCAO may be able to show that its 

contemporaneous explanations for Ms. Howard’s alleged 

demotion can be reconciled with the assertions made in the 

Beard Affidavit. These are matters to be addressed by the 

District Court in the first instance. The main point here is that 

the Speech or Debate Clause does not preclude Ms. Howard 

from pursuing her charge of race discrimination based on her 

alleged demotion.
23

E. Howard’s Termination and Retaliation Claims

For the reasons indicated below, we find that the District 

Court had no basis under Rule 12(b)(1) or Rule 12(b)(6) to 

dismiss Ms. Howard’s claims that her termination from the 

OCAO was motivated by her race and by retaliatory animus 

or to grant judgment in favor of the OCAO on these issues. 

Ms. Howard will be able to pursue these claims without

probing protected legislative activities. Because the District 

Court dismissed these claims, we reverse its decision, grant 

Ms. Howard’s appeal, and remand the case to allow these 

claims to proceed.

Ms. Howard avers that she was terminated for her failure 

to complete an assignment she describes as “set[ting] up the 

projection file for the [Account].” Pl.’s First. Am. Compl. 

¶ 38, reprinted in J.A. 16. She alleges that she was not given 

“access to the [necessary] database,” id. at ¶ 57, reprinted in 

J.A. 18-19, to complete the task, and that the OCAO

employee with whom she was supposed to work was 

uncooperative and prevented her from completing the 

assignment. See id. at ¶¶ 38-64, reprinted in J.A. 16-20. Ms. 

Howard thus alleges that she was set up to fail and that her 

April 2009 discharge “was improperly based upon race.” Id. 

at ¶ 66, reprinted in J.A. 20.

The Beard Affidavit takes issue with Ms. Howard’s 

account of the events leading to her discharge. The affidavit 

states that:

Between January and April 2009, Mr. Qureshi 

repeatedly instructed Ms. Howard to complete the work 

on the Government Contributions Account which he had 

assigned to her and, throughout this period, Ms. Howard 

repeatedly refused. Ms. Howard had the necessary 

computer and data access to enable her to complete this 

task. On or about April 14, 2009, Mr. Qureshi, with my 
24

approval, informed Ms. Howard that her employment 

was terminated because she had repeatedly refused to 

analyze and reconcile the Government Contributions 

Account as I, through Mr. Qureshi, had repeatedly 

instructed her to do.

Beard Aff. ¶ 14, reprinted in J.A. 98. 

In sum, the CAO contends that Ms. Howard had access to 

all of the necessary files and resources and was terminated for 

insubordination. Ms. Howard, in turn, asserts that she lacked 

access to the necessary resources and support and was then 

terminated for failures caused by the OCAO. This is a classic 

“he-said-she-said” dispute, calling into question the 

credibility of Ms. Howard, Mr. Beard, and other members of 

the OCAO staff. The dispute has nothing whatsoever to do 

with protected legislative activities.

The Beard Affidavit’s account of the reasons for Ms. 

Howard’s termination certainly does not implicate legislative 

activities. To the contrary, the assertions in the Beard 

Affidavit regarding Ms. Howard’s discharge relate to Ms. 

Howard’s failure to perform an assigned job, not the 

particular duties associated with the job or the justifications 

for the assignment. OCAO asserts that the duties assigned to

Ms. Howard would have involved protected legislative 

activities had she undertaken her assignment. This is 

irrelevant, however, because Ms. Howard has not raised any 

issue about those duties, nor does she propose to probe any 

aspect of the Account assignment or the motives giving rise to 

the assignment. Rather, Ms. Howard claims that she was 

assigned to perform a job and then denied the necessary 

resources and support to complete the work. 

At Oral Argument, the OCAO conceded, as it must, that 

an investigation into activities in proximity to the legislative 

process does not necessarily require a probe into protected 
25

legislative activity. See Tr. of Oral Arg. at 48; see also 

Brewster, 408 U.S. at 528. For example, a file clerk assigned 

to deliver legislative documents from one office to another, 

where all deliveries arrive in sealed envelopes, could be 

terminated for failing to deliver the envelopes as assigned. If 

the dispute surrounding the file clerk’s termination concerned 

instructions given to the clerk, the times of the pick-ups and 

deliveries of his cargo, his attitude, his attire, what he said 

during his delivery route, or his race – and did not concern the 

contents of the envelopes – then any inquiry into the cause of 

his termination could proceed without implicating the Speech 

or Debate Clause. Even though the file clerk’s assigned tasks 

may be seen as importantly related to legislative activities, the 

tasks themselves are not legislative activities that implicate 

the Speech or Debate Clause.

Similarly, a food service worker whose principal 

responsibilities are for food preparation and service, as in 

Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984), may inquire 

into the reasons for his termination without implicating any 

protected legislative activities. The Speech or Debate Clause 

would not bar the worker’s challenge to his termination, even 

if he worked in the House of Representatives’ dining room.

Ms. Howard’s situation is similar to these examples. 

Therefore, she may pursue her termination and retaliation 

claims. As the Court noted in Gravel, conduct that is merely 

related to or taken in support of protected legislative activities 

is not itself protected when relief can be afforded “without 

proof of a legislative act or the motives or purposes 

underlying such an act.” 408 U.S. at 621. We find nothing in 

Ms. Howard’s termination and retaliation claims that 

implicate the Speech or Debate Clause. Her allegations 

concern access to resources and staff support. The details of 

her work assignment are not at issue. Therefore, there is little 

doubt that she can be afforded relief on her claims “without 
26

proof of a legislative act or the motives or purposes 

underlying such an act.” Id. The credibility issues that have 

been raised in connection with Ms. Howard’s termination and 

retaliation claims are properly left to the District Court in the 

first instance, as is routinely done in cases involving charges 

of race discrimination in employment.

IV. CONCLUSION

For the reasons discussed above, we affirm the judgment 

of the District Court in part, reverse in part, and remand to 

allow all of Ms. Howard’s claims to proceed.
KAVANAUGH, Circuit Judge, dissenting: Article I’s 

Speech or Debate Clause provides that “for any Speech or 

Debate in either House,” Senators and Representatives “shall 

not be questioned in any other Place.” U.S. CONST. art. I, § 6, 

cl. 1. The Clause is an important element of the 

Constitution’s separation of powers, protecting the 

independence of the Article I Legislature from encroachment 

by the Article II Executive or the Article III Judiciary. The 

Clause’s text, history, and precedent can create significant 

obstacles when a criminal or civil case is brought in an Article 

III federal court against a Member of Congress or 

congressional office.

This case involves a suit under the Congressional 

Accountability Act of 1995. That Act created a cause of 

action for congressional employees who claim unlawful 

discrimination by congressional employing offices. 2 U.S.C. 

§ 1408. An “employing office” includes, among other 

congressional offices, (i) the personal office of a Member of 

the House of Representatives or of a Senator, (ii) a House or 

Senate committee, and (iii) any other office with the authority 

to make personnel decisions about congressional employees. 

Id. § 1301(9).

Under the Act, employees may file complaints with 

Congress’s Office of Compliance and, if successful, may 

obtain all the remedies they could obtain in a federal court 

discrimination suit. Id. §§ 1311(b), 1404(1), 1405(a). 

Importantly, because the Office of Compliance process occurs 

within the Legislative Branch, not in an “other Place,” the 

Speech or Debate Clause does not pose an issue in those 

cases.

The Act alternatively permits an employee to bring a 

discrimination suit in federal district court. Id. §§ 1404(2),
2

1408(a). But in those federal court suits, the Speech or 

Debate Clause applies. Id. § 1413.1

Howard brought her discrimination suit in federal court 

against the congressional Office of the Chief Administrative 

Officer. The question here is how the Speech or Debate 

Clause operates in employment discrimination cases brought 

in federal court against congressional offices. In 

discrimination cases generally, the plaintiff employee alleges 

that a certain employment action occurred because of his or 

her race or sex, for example. The employer responds by 

stating a neutral reason for the employment action. Then, the 

employee tries to prove that the employer’s stated reason was

either not factually true or not the actual basis for the 

decision, and that the decision was based on race or sex. The 

employer meanwhile tries to prove that the stated reason was 

factually true and was the actual basis for the decision, and 

thus that the decision was not based on race or sex. See 

generally Texas Department of Community Affairs v. Burdine, 

450 U.S. 248, 252-56 (1981); Brady v. Office of the Sergeant 

at Arms, 520 F.3d 490, 493-95 (D.C. Cir. 2008).

When employee plaintiffs sue congressional offices in 

federal court, difficulty arises if the employer’s stated reason 

for the employment action in question – for the firing, 

demotion, or the like – is the plaintiff’s performance of 

legislative activity. Difficulty arises in those circumstances

because the Speech or Debate Clause, as construed by the 

Supreme Court, establishes a privilege that as relevant here 

(i) prevents use of evidence of legislative activities against 

Members and (ii) protects Members from being forced to 

 1 The employee’s choice to proceed through Congress’s Office 

of Compliance or in federal court is irrevocable, meaning the 

plaintiff cannot go back if unhappy with the initially chosen forum. 

See 2 U.S.C. § 1404.
3

disclose information about legislative activities. See United 

States v. Helstoski, 442 U.S. 477, 489-90 (1979); Gravel v. 

United States, 408 U.S. 606, 616 (1972).

In Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 

(D.C. Cir. 2006), the en banc Court of eight judges considered

the application of the Speech or Debate Clause to 

discrimination suits brought under the Congressional 

Accountability Act. For four judges, Judge Randolph’s 

opinion concluded that, when the defendant employer states 

that the challenged employment action was based on 

legislative activity protected by the Speech or Debate Clause, 

the case “most likely must be dismissed.” Id. at 16 (plurality 

opinion of Randolph, J.). For three other judges, Judge 

Brown’s opinion likewise stated that, assuming congressional 

offices could assert the protections of the Speech or Debate 

Clause as a majority of the en banc Court had separately held, 

then lawsuits “that will inevitably necessitate an inquiry into” 

protected legislative activity would be barred. Id. at 30 n.3 

(Brown, J., concurring in the judgment). So seven of the 

eight Judges in Fields indicated support for a rule that would 

usually require dismissal in employment discrimination cases 

when the employer’s stated reason for the action involves the 

plaintiff’s performance of legislative activity.

Here, as the parties and the majority opinion accept, we 

should follow Judge Randolph’s Fields opinion. Under that 

opinion, when the employer’s stated reason involves the 

plaintiff’s performance of legislative activity, the plaintiff

may not dispute the factual accuracy of the employer’s stated 

reason. See id. at 16-17 (plurality opinion of Randolph, J.). 

A question left open in Fields was whether the plaintiff could 

nonetheless dispute whether the defendant’s stated reason was 

the actual basis for the defendant’s decision or was just a 
4

pretext for discrimination. See id. This case requires us to 

resolve that open question.

Under Fields, all agree that the initial task in a case 

where an employing office has submitted an affidavit 

invoking the Speech or Debate Clause is to determine whether 

the reason asserted by the employer for the employment 

action encompasses legislative activity protected by the 

Speech or Debate Clause. In this case, that inquiry is 

straightforward. The reasons asserted by the defendant Chief 

Administrative Officer for the adverse employment actions 

included Howard’s inadequate performance of legislative 

activity. On the demotion claim, the Chief Administrative 

Officer stated that he transferred Howard in part because

Howard had communicated her personal preferences

regarding the Legislative Branch’s budget to congressional 

committees, rather than communicating the preferences of the 

Office of the Chief Administrative Officer. J.A. 97-98. On 

the termination claim, the Chief Administrative Officer stated 

that he ultimately terminated Howard’s employment because 

Howard had refused to perform budget analysis for use by

those congressional committees. J.A. 98. As this Court has 

previously recognized, a staff member’s activities of this sort 

are legislative activities that fall squarely within the ambit of 

the Speech or Debate Clause. See McSurely v. McClellan, 

553 F.2d 1277, 1284-87 (D.C. Cir. 1976); see also Gravel, 

408 U.S. at 628-29 (Speech or Debate Clause protects 

preparations for committee hearings and internal 

communications related to legislative activity).

Once we conclude (as we must here) that the employer’s 

asserted reason for the decision involves legislative activity 

protected by the Speech or Debate Clause, I believe (unlike 

the majority opinion) that the case must come to an end. I do 

not see how a plaintiff employee such as Howard can attempt
5

to prove either that she in fact adequately performed her 

legislative activities or that her performance of legislative 

activities was not the actual reason for the employment action 

without forcing the employer to produce evidence that she did 

not adequately perform her legislative activities and that her 

poor performance of legislative activities was the actual 

reason for the employment action. But the Speech or Debate 

Clause protects the defendant from being forced to produce

such evidence of legislative activities. See United States v. 

Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir. 1995) 

(distinguishing voluntary production of protected evidence 

from production that “is necessary”); see also United States v. 

Swindall, 971 F.2d 1531, 1546 (11th Cir. 1992) (permissive 

inference violated Speech or Debate Clause where it 

“virtually compel[led] Swindall to justify his legislative 

actions”).

Trying to thread the needle and avoid dismissal of 

Howard’s claims, the majority opinion says that, although a

plaintiff per Fields may not challenge the factual accuracy of 

the employer’s stated reason for the decision, a plaintiff may

still try to show that the employer’s stated reason – namely,

the employee’s poor performance of legislative activities –

was a pretext for discrimination and not the actual reason for 

the employment decision. But that thread-the-needle 

approach simply won’t work to avoid the Speech or Debate 

Clause problem. In response to such evidence and arguments

from the plaintiff, the defendant necessarily will have to prove 

at trial that the plaintiff’s unsatisfactory performance of 

legislative activities was the actual reason for the decision –

that is, was not a pretext. In the real world of trial litigation, 

that in turn will obviously require the defendant to produce 

evidence about the plaintiff’s allegedly shoddy performance 

of those legislative activities. See Burdine, 450 U.S. at 258 

(“[T]he defendant . . . retains an incentive to persuade the trier 
6

of fact that the employment decision was lawful. Thus, the 

defendant normally will attempt to prove the factual basis for 

its explanation.”). But that is precisely what the Speech or 

Debate Clause protects congressional defendants from being 

forced to do – namely, from being forced to produce evidence 

of legislative activities in federal court.

Put simply, the majority opinion’s test is inconsistent 

with Speech or Debate Clause principles because it 

necessarily will require congressional employers to either 

produce evidence of legislative activities or risk liability. 

Under the Constitution’s Speech or Debate Clause, Article I 

congressional employers cannot be put to this kind of choice

by an Article III federal court.

Notably, as we explained in Fields, employees in 

congressional offices who suffer discrimination are not 

without a remedy. Rather, “a plaintiff whose suit cannot 

proceed in federal court by operation of the Speech or Debate 

Clause still may avail himself of the Accountability Act’s 

administrative complaint procedure” through Congress’s 

Office of Compliance. Fields, 459 F.3d at 17. The Speech or 

Debate Clause does not apply there because that process takes 

place within Congress, not in an “other Place.” U.S. CONST.

art. I, § 6, cl. 1. We are informed that numerous congressional 

employees have availed themselves of that Office of 

Compliance process and have obtained remedies.

One final note: The majority opinion’s approach in this 

case not only is inconsistent with the Speech or Debate 

Clause, but also creates a major real-world problem. Under 

the majority opinion’s approach, plaintiffs may be encouraged 

to forgo the Office of Compliance process in Congress and 

may be seduced instead into federal court. Once in federal 

court, however, a plaintiff will find that the suit is seriously 
7

hampered because, as Fields concluded and the majority 

opinion here acknowledges, the plaintiff cannot take issue 

with the employer’s factual assertions about the plaintiff’s 

poor performance of legislative activities. A plaintiff saddled 

with a stipulation that she was really lousy at performing her 

legislative duties is not a plaintiff who is likely to even get to 

trial, much less to win, in a discrimination case. So the 

majority opinion’s promise of a federal court forum in these 

circumstances is a fairly empty promise. And the false hope

offered by the majority opinion will undoubtedly deprive 

discrimination victims who file in federal court of remedies

that they may well have obtained through the Office of 

Compliance process in Congress – where, for example, 

employees could dispute the alleged factual basis for the 

employer’s decision and thereby give themselves a real shot 

at prevailing on their discrimination claims. I would 

encourage counsel for would-be plaintiffs in these kinds of 

cases to carefully consider the difficulty of a federal court suit 

– even under the majority opinion’s approach – before they 

advise clients to irrevocably bypass the Office of Compliance 

option, where they would not face such extraordinary hurdles 

to prevailing.

* * *

Based on the Speech or Debate Clause, I would hold that 

a district court must dismiss a discrimination suit against a 

congressional employing office if the employer’s stated 

reason for the employment decision is the plaintiff’s 

performance of legislative activities. Therefore, I would 

dismiss Howard’s demotion and termination claims. I 

respectfully dissent.