The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff LaTaunya Howard brings this action against the Office of the Chief Administrative Officer ("CAO") of the U.S. House of Representatives,*fn1 alleging that the CAO violated the Congressional Accountability Act of 1995 (the "Accountability Act"), 2 U.S.C. § 1301 et seq., by demoting and then firing her on the basis of her race and in retaliation for engaging in protected activity. Before the Court is the CAO's motion to dismiss three counts of Howard's complaint [#16]. The CAO's motion, which argues that Howard cannot prove her claims without inquiring into matters protected by the Speech or Debate Clause of the Constitution, raises weighty questions regarding the interaction of that provision with the Accountability Act itself. Upon consideration of the motion, the opposition thereto, the record of this case, and the hearing held before the Court on January 21, 2011, the Court concludes that the motion must be granted in part and denied in part.
A. The Congressional Accountability Act of 1995
The Accountability Act extends to certain legislative branch employees the protections of a number of federal remedial statutes, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See 2 U.S.C. § 1311(a)(1) (prohibiting "discrimination based on . . . race, color, religion, sex, or national origin, within the meaning of section 703 of the Civil Rights Act of 1964"). The Accountability Act also includes an anti-retaliation provision that prohibits intimidation, reprisal, or discrimination against a covered employee because that employee has opposed or reported any practice made unlawful by the Act. 2 U.S.C. § 1317(a). The Act applies to, inter alia, any employee of the House of Representatives or the Senate. See id. § 1301(3)(A),
(B). The Act waives sovereign immunity for claims brought thereunder, Fields v. Office of Eddie Bernice Johnson, U.S. Congress, 459 F.3d 1, 8 (D.C. Cir. 2006) (en banc), but expressly withholds waiver of "the privileges of any Senator or Member of the House of Representatives under article I, section 6, clause 1," 2 U.S.C. § 1413, better known as the Speech or Debate Clause. This statutory framework has been in place throughout the events that constitute the subject matter of this litigation.
The CAO oversees the daily operations and infrastructure of the House. As part of these responsibilities, the CAO helps the House Committees on Appropriations and House Administration prepare the annual appropriations bill that funds the operations of the legislative branch. Howard, an African-American woman, was hired by the CAO as Deputy Budget Director in April of 2003. Am. Compl. ¶ 3. From December of 2004 through early 2005, Maureen Longstaff, the Budget Director, took maternity leave, during which time Howard served as Acting Budget Director, receiving a temporary salary increase. Am. Compl. ¶ 6. In December of 2005, Longstaff announced her intention to resign the following June, prompting a search for a new Budget Director. Am. Compl. ¶¶ 12--13.
Howard applied and was interviewed for the Budget Director position. She was among three candidates, and the only internal candidate, to be rated as highly qualified for the position. Am. Compl. ¶ 14. While Howard was on leave following surgery, however, the position was offered to a Caucasian male candidate. He declined, and the search was reopened. Am. Compl. ¶¶ 15--16. Howard then met with the director of human resources to express concern that she might have been passed over because of her medical leave absence. In June of 2006, Howard was offered and accepted the Budget Director position. Am. Compl. ¶ 19. Upon becoming Budget Director, Howard also began to assume some of the responsibilities of the Budget Officer, a related but separate position. Am. Compl. ¶ 21.
In February of 2007, Dan Beard was appointed as the new CAO, and commenced a reorganization of the office. Am. Compl. ¶ 23. The next month, Howard was informed that the Budget Officer title was being abolished, but that she was still expected to perform the Budget Officer tasks she had previously taken on. Am. Compl. ¶ 24. Howard became concerned that other employees were not subject to similar requests, and expressed her concerns to a co-worker. The CAO Administrative Counsel commenced an investigation, which, Howard asserts, concluded that a round of raises conducted in June of 2007 had resulted in a racial pay disparity. Howard avers that she was told that she would, as a result, receive a promotion to a higher grade and six months' worth of back pay. Am. Compl. ¶¶ 25--26. In November of 2007, Howard received a performance evaluation from Deputy Associate Administrator Kathy Purdue that Howard felt was in certain respects "unjustifiably lower" than the previous year's evaluation. She complained, prompting an investigation, the resolution of which was to have Howard stop reporting to Purdue as of February 2008. Am. Compl. ¶¶ 29--30.
In January of 2009, Howard attended a meeting regarding the CAO's budget organization. She was told that a decision had been made to "do away with" the Budget Director title, and that she would become a Senior Advisor to Deputy CAO Ali Qureshi. Am. Compl. ¶ 35. After the change, she was told, her focus would shift from budget matters to analytical work, she would no longer have managerial responsibilities, and her pay would not change. Am. Compl. ¶ 36. Howard later discovered that she was one of three Senior Advisors to Qureshi, the other two of whom were Caucasian males who each earned $22,000 more than she did. Am. Compl. ¶ 47.
In February, Qureshi asked Howard to work with Budget Analyst Elizabeth Nuti, a Caucasian female, on the Government Contributions account. Howard avers that, rather than cooperate, Nuti asked Howard to perform the task in her stead. Howard appealed to Qureshi for clarification regarding her responsibilities, and attempted to meet with both him and Nuti, but was repeatedly rebuffed. Am. Compl. ¶¶ 38--40, 43--46. In mid-March, after further efforts by Howard to ascertain her role in the Government Contributions project, Qureshi asked her to complete the necessary tasks by March 20. Am. Compl. ¶¶ 49--50. Howard continued to attempt to meet with Qureshi, and eventually expressed concerns regarding her interactions with him to a human resources representative. Am. Compl. ¶¶ 51--53.
Howard and Qureshi eventually met in late March. Howard avers that Qureshi was unable to explain why he was opposed to meeting with Howard and Nuti to go over the assignment. Am. Compl. ¶¶ 55--56. Shortly thereafter, Qureshi, and later Nuti, represented to Howard that she would have the computer access necessary to complete her tasks. She found, however, that she did not, and informed both Qureshi and Nuti of that fact. She also emailed a set of suggestions to Nuti. Am. Compl. ¶¶ 58--61. In early April, however, Qureshi emailed Howard to threaten disciplinary action if she did not perform the suggestions that she had previously made to Nuti. Am. Compl. ¶¶ 62. A week later, he inquired whether she had done so; she responded that she was still unable to access the necessary files on the office computers. One week after that, Howard's employment was terminated.
Howard subsequently completed the counseling and mediation process required by the Act, see Am. Compl. Ex. A (End of Mediation Notice, June 18, 2009), and commenced this action, alleging 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.
The CAO now moves for dismissal of Howard's claims regarding her transfer and termination under Federal Rule of Civil Procedure 12(b)(1).*fn2 The CAO presents a single basis for this motion: that Howard cannot succeed in a suit based on these claims without straying into territory protected by the Speech or Debate Clause of the Constitution. Because this argument presents complex and novel questions of law, some doctrinal background is necessary.
A. The Speech or Debate Clause
Article I, section 6 of the Constitution provides that "Senators and Representatives shall . . . for any speech or debate in either House . . . not be questioned in any other place." U.S. CONST., art. I, § 6. This provision, known as the Speech or Debate Clause, serves to protect important separation-of-powers principles by shielding legislators from "intimidation by the executive and accountability before a possibly hostile judiciary." United States v. Johnson, 383 U.S. 169, 181 (1966). With this purpose in mind, the Supreme Court has applied the Clause beyond its literal terms, holding that it precludes judicial inquiry into acts 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 v. United States, 408 U.S. 606, 625 (1972). The Court has likewise applied the Clause's protections to parties other than senators and representatives themselves, extending it to congressional aides and committees. See Gravel, 408 U.S. at 616--22.
The Supreme Court has been careful, however, not to "extend the [Clause's] privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process." United States v. Brewster, 408 U.S. 501, 516 (1972). Thus, the Clause "'does not prohibit 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.'" Fields v. Office of Eddie Bernice Johnson, U.S. Congress, 459 F.3d 1, 10 (D.C. Cir. 2006) (en banc) (quoting Brewster, 408 U.S. at 514, 528) (internal citations omitted).
As Speech or Debate Clause doctrine has evolved, it has resulted in three distinct protections: (1) immunity from civil or criminal liability for "conduct . . . within the 'sphere of legitimate legislative activity,'" Doe v. McMillan, 412 U.S. 306, 312 (1973) (quoting Gravel, 408 U.S. at 624); (2) an evidentiary privilege barring the introduction of evidence of legislative acts against a protected party, see United States. v. Helstoski, 442 U.S. 477, 487--90 (1979); and (3) a testimonial and non-disclosure privilege that prevents a protected party from being compelled to answer questions about legislative activity or produce written legislative materials. See United States v. Rayburn House Office Bldg., Room 2113, Wash., D.C. 20515, 497 F.3d 654, 659--60 (D.C. Cir. 2007) (citing Gravel, 408 U.S. at 616; Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995)).
2. The Speech or Debate Clause and Employment Suits
The D.C. Circuit first addressed the role of the Speech or Debate Clause in legislative branch employment actions in Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984). The Walker court held that the Clause did not bar a gender discrimination suit, brought under the Equal Protection Clause, by the manager of the House restaurant system. The court explained that because the plaintiff performed only auxiliary, non-legislative services, ...