In a key case, Bastien v. Office of Sen. Campbell, 2006 WL 1756043 (10th Cir. 2006), the U.S. Court of Appeals recently held that the office of former Sen. Ben Nighthorse Campbell could not immediately appeal the denial of its motion to dismiss in a case brought by a former staffer who complained of discrimination and retaliation. The court held that immediate review of the district court’s decision was not appropriate, and therefore, the case must continue at the trial court. This case is important because it shows that even senators aren’t immune from complaints regarding discriminatory conduct in the workplace.
Rita Bastien, 62, was employed as a aide in that Senate office until she was terminated in April 2001. On September 5, 2000, Bastien was transferred from the Senator’s Englewood, Colorado office to his office in Colorado Springs, Colorado, where she served as a district director until her termination. Shortly after that, she filed suit under the Congressional Accountability Act (CAA), a law which extends the protections of 11 workplace statutes, including the Age Discrimination in Employment Act, to congressional employees. The CAA also prohibits retaliation against congressional employees who exercise their rights under the CAA. Bastien’s suit alleged that she had been subjected to discrimination based on her age, and that she also suffered retaliation for making complaints of discrimination.
Initially, the U.S. District Court for Colorado dismissed her suit claiming that the Senator was immune from this discrimination suit under the Speech or Debate clause of the U.S. Constitution. As its rationale, the court held a “majority of Plaintiff’s job functions” were related to the legislative process, and therefore, the Senator’s decision to terminate the plaintiff was protected because it was “directly related to the due functions of the legislative process.” The 10th Circuit disagreed and reversed the district court’s decision, thus reinstating the plaintiff’s suit.
Shortly after reinstating the plaintiff’s lawsuit, the Senator’s term expired. The Office then moved once more to dismiss her complaint, this time arguing that the suit was moot because Campbell no longer was a senator. The district court denied the Office’s motion to dismiss and held that the suit could continue because Congress was the party to the lawsuit, not former Senator Campbell.
In another attempt to defeat Bastien’s suit, the Office filed an interlocutory appeal to the 10th Circuit. Normally, a party must wait until the trial has concluded to file an appeal; however, the Office filed an interlocutory appeal, which permits a party to immediately appeal a ruling while the case is still before the judge. The Office argued that acceptance of the appeal was required because it involved a “separation of powers” issue which should be determined by a higher court.
The 10th Circuit disagreed, once more refusing to accept the interlocutory appeal. The court explained that the issues did not involve immunity or separation of powers, but instead held that the issue was whether the plaintiff’s case became moot when Campbell left office. The court found that an interlocutory review was not appropriate, and ordered the appeal to be dismissed, and for the case to continue.
The Congressional Accountability Act was passed to protect congressional employees and, in this case, the 10th Circuit upheld these protections. Therefore, while the Constitution gives senators immunity related to their remarks while on the Senate floor, it cannot be used to protect members of Congress from complaints regarding discriminatory conduct.
This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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