Aides Could Still Face Civil Suits Despite CAA
A federal judge ruled recently that the Congressional Accountability Act does not shield individual staffers from having civil lawsuits brought against them for “conspiracy” to violate another employee’s constitutionally guaranteed rights.
The issue arose in a case brought in 2002 against House Sergeant-at-Arms Bill Livingood by a 22-year employee of the Office of Garages and Parking Security. Standley Brady, who is black, alleged he “has been the target of ongoing discriminatory practices based on his race, and retaliation as a result of his speaking out against certain unlawful employment practices.”
Judge Richard Leon dismissed most of the complaint in late March — Brady’s allegations of a hostile work environment are still in litigation in U.S. District Court for the District of Columbia — but left open the possibility that if the court “found that the plaintiff had sufficiently plead facts demonstrating a private conspiracy to violate his constitutionally guaranteed rights, motivated by racial or class-based animus,” the court would have “adequate basis” to consider such a claim.
Legal experts indicated that, to their knowledge, the CAA has not been ruled on in this context before.
Even after the judge dismissed the conspiracy claim against the seven individual defendants employed by the House, the general counsel’s office, which represents lawmakers and staff in court, asked Leon to reconsider the basis for his decision. House General Counsel Geraldine Gennet asserted that the landmark 1995 statute “explicitly requires that discrimination in employment claims be asserted only against ‘employing offices,’” in this case the office of the Sergeant-at-Arms.
The CAA, the first plank in the so-called “Contract With America,” applied 11 federal workplace, anti-discrimination and civil rights laws to the legislative branch for the first time.
“The only waiver of sovereign immunity as to employment claims in the legislative branch is the CAA,” the general counsel’s office continued, adding that waiver must be “strictly construed” in favor of the government. The brief went on to assert that “discrimination in employment claims may not be recast as equal protection constitutional claims,” and that the seven employees were acting in their official capacities, thus blocking Brady from attempting to “constitutionalize” the same complaints he made first as CAA allegations.
Leon disagreed in a ruling in late April, citing the Supreme Court’s 1971 determination that federal courts have jurisdiction for claims brought for “purely private conspiracies in violation of constitutionally guaranteed rights, provided that there is ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.’”
The judge also left open the possibility that Brady could amend his complaint to have the court reconsider the dismissed allegations, which were originally thrown out on procedural grounds.
The seven House staffers named in the complaint are: Livingood; Deputy Sergeant-at-Arms Kerri Hanley; Donald Kellaher, director of police services; Jeanne Mershon, assistant director of the House garages; Patrick Lanigan, former director of the House garages; and Barbara Sullivan and Anthony Griffith, parking security staffers.
In his complaint, Brady alleges that Hanley told him there had been investigations into his conduct based on comments from a private focus group “consisting of selected white employees” who indicated that he was not an effective supervisor (he was later demoted from that temporary position). Additionally, Brady claims he was told that two white female employees had alleged he had sexually harassed them, but he was denied access to the evidence against him and subsequently told by Hanley and Kellaher that a missionary trip he took to South Africa indicated he was “running away from his guilt.”
Brady maintains that despite holding a law degree and having received “numerous” letters of commendation from various Members and staffers, he was repeatedly denied opportunities for advancement because of his race and retaliated against for inquiring about “a pattern of discrimination against African Americans” by the Sergeant-at-Arms.
The House Employment Counsel’s office, which represents the Sergeant-at-Arms in employment cases, does not comment on pending litigation. Brady’s attorney could not be reached for comment.