Free Answer to Complaint - District Court of Colorado - Colorado

Case 1:01-cv-00799-PSF-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:01-cv-00799-CAB-MEH RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

ANSWER TO AMENDED COMPLAINT The Office of Senator Ben Nighthorse Campbell, for its answer to the Amended Complaint in the above-captioned matter, states as follows: 1. In response to paragraph 1 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell admits only that at the time of the filing of the Amended Complaint, Rita Bastien ("Plaintiff" or "Ms. Bastien") was a 62-year old female. The Office of Senator Ben Nighthorse Campbell is without knowledge or information sufficient to allow it to admit or deny the allegation that Ms. Bastien is Hispanic. 2. In response to paragraph 2 of the Amended Complaint, the Office of Ben Nighthorse Campbell states as follows. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 2 of the Amended Complaint except admits that Plaintiff (i) was employed by the Office of Senator Ben Nighthorse Campbell in the following positions during the periods of time stated: Senate Aide in Englewood, Colorado from July 7, 1994, to September

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5, 2000, except for three months in 1997 when she was the Scheduler in the Washington, D.C. office; and District Director in Colorado Springs, Colorado from September 6, 2000, to April 10, 2001; and (ii) was terminated on April 10, 2001. 3. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 3 of the Amended Complaint. 4. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 4 of the Amended Complaint. 5. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 5 of the Amended Complaint except admits that Plaintiff was notified on September 5, 2000, that her work title would be changed to District Director and her work station would be changed to Colorado Springs, Colorado, effective September 6, 2000. 6. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 6 of the Amended Complaint except admits that Plaintiff's employment with the Office was terminated on April 10, 2001. 7. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 7 of the Amended Complaint. 8. For its answer to paragraph 8 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell incorporates paragraphs 1-7 of this Answer as if set forth here at length. 9. In response to paragraph 9 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell states that it is without knowledge or information sufficient to allow it to admit or to deny the allegation that Plaintiff is a resident of Denver, Colorado. 2

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10. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 10 of the Amended Complaint except admits the following. The Office of Senator Ben Nighthorse Campbell was an independent office of the United States Senate during the period of Senator Campbell's term of office as a U.S. Senator. The Office of Senator Ben Nighthorse Campbell ceased to exist on January 3, 2005. During its existence, the Office of Senator Ben Nighthorse Campbell operated out of several physical office locations, including offices in the State of Colorado. 11. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 11 of the Amended Complaint. 12. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraphs 12 and 13 of the Amended Complaint except admits that Plaintiff engaged in counseling under 2 U.S.C. § 1402 and mediation under 2 U.S.C. § 1403. 13. In response to paragraph 14 of the Amended Complaint, the Office of Ben Nighthorse Campbell states as follows. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 14 of the Amended Complaint except admits that Plaintiff was employed by the Office of Senator Ben Nighthorse Campbell in the following positions during the periods of time stated: Senate Aide in Englewood, Colorado, from July 7, 1994, to September 5, 2000, except for three months in 1997 when she was the Scheduler in the Washington, D.C. office; and District Director in Colorado Springs, Colorado, from September 6, 2000, to April 10, 2001. 14. The Office of Senator Ben Nighthorse Campbell is without knowledge or 3

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information sufficient to allow it to admit or to deny the allegations of paragraph 15 of the Amended Complaint. 15. The Office of Senator Ben Nighthorse Campbell is without knowledge or information sufficient to allow it to admit or to deny the allegations of paragraph 16 of the Amended Complaint. 16. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 17 of the Amended Complaint. 17. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 18 of the Amended Complaint. 18. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 19 of the Amended Complaint except admits that Senator Campbell informed Plaintiff that her transfer to the Colorado Springs office in September 2000 was in keeping with his policy of cross training and rotation. 19. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 20 of the Amended Complaint. 20. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 21 of the Amended Complaint. 21. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 22 of the Amended Complaint. 22. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 23 of the Amended Complaint. 4

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23. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 24 of the Amended Complaint except admits that when Plaintiff was a Senate Aide in the Englewood office of the Office of Senator Ben Nighthorse Campbell, her job duties included handling constituent casework that focused on immigration issues. 24. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 25 of the Amended Complaint except admits that (i) simultaneously with Plaintiff's transfer to the Colorado Springs office of the Office of Senator Ben Nighthorse Campbell, Catherine Lawton was transferred to the Englewood office of the Office of Senator Ben Nighthorse Campbell; and (ii) that Ms. Lawton is younger than Plaintiff. 25. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 26 of the Amended Complaint. 26. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 27 of the Amended Complaint. 27. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 28 of the Amended Complaint. 28. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 29 of the Amended Complaint. By way of further answer, the Office of Senator Ben Nighthorse Campbell states that it gave Dave Devendorf the option to transfer to the Denver office or to leave the employment of the Office altogether. 29. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 30 of the Amended Complaint. 5

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30. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 31 of the Amended Complaint. 31. The Office of Senator Ben Nighthorse Campbell admits the factual allegations of paragraph 32 of the Amended Complaint except that the Office of Senator Ben Nighthorse Campbell is without knowledge or information sufficient to allow it to admit or deny the allegation that Mr. Doyle lives in Berthoud. 32. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 33 of the Amended Complaint except admits that Catherine Lawton held the position of District Director in Colorado Springs for the Office of Senator Ben Nighthorse Campbell in 1999. 33. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 34 of the Amended Complaint. 34. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 35 of the Amended Complaint except admits that Senator Campbell stated that the rotation to District Director was a career advancement which provided an opportunity for increased salary based on performance. 35. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 36 of the Amended Complaint. 36. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraphs 37 and 38 of the Amended Complaint. 37. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 39 of the Amended Complaint. 6

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38. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 40 of the Amended Complaint. 39. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 41 of the Amended Complaint. 40. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 42 of the Amended Complaint. 41. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 43 of the Amended Complaint. 42. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 44 of the Amended Complaint. 43. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 45 of the Amended Complaint. 44. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 46 of the Amended Complaint. 45. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 47 of the Amended Complaint. 46. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 48 of the Amended Complaint. 47. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 49 of the Amended Complaint except admits that Senator Campbell did suggest public transportation as an alternative means of commuting to the Colorado Springs office and 7

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reminded Plaintiff that a public transportation subsidy was available to her. 48. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 50 of the Amended Complaint. 49. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 51 of the Amended Complaint. 50. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 52 of the Amended Complaint. 51. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 53 of the Amended Compliant except admits that Plaintiff was reprimanded in February 2001 for ignoring proper Office procedures and a previous admonition for similar conduct when she sent Office-related correspondence to Senator Campbell's home. 52. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 54 of the Amended Complaint except admits that Plaintiff was notified on March 30, 2001, that the State Director rather than Plaintiff would staff Senator Campbell at a Town Meeting in Colorado Springs. In further response to paragraph 54 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell states that when Plaintiff was informed of the staffing change, she attempted to remove important information from the Senator's briefing book for the Town Meeting event. 53. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 55 of the Amended Complaint. 54. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 8

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56 of the Amended Complaint. 55. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 57 of the Amended Complaint. 56. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 58 of the Amended Complaint. 57. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 59 of the Amended Complaint. 58. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 60 of the Amended Complaint. 59. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 61 of the Amended Complaint. 60. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 62 of the Amended Complaint. 61. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 63 of the Amended Complaint. 62. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 64 of the Amended Complaint. 63. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 65 of the Amended Complaint. 64. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 66 of the Amended Complaint. 9

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65. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 67 of the Amended Complaint. 66. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 68 of the Amended Complaint. 67. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 69 of the Amended Complaint. 68. For its answer to paragraph 70 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell incorporates paragraphs 1-67 of this Answer as if set forth here at length. 69. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 71 of the Amended Complaint. 70. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 72 of the Amended Complaint. 71. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 73 of the Amended Complaint. 72. For its answer to paragraph 74 of the Amended Complaint, the Office of Senator Ben Nighthorse Campbell incorporates paragraphs 1-71 of this Answer as if set forth here at length. 73. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 75 of the Amended Complaint. 74. The Office of Senator Ben Nighthorse Campbell denies the allegations of paragraph 76 of the Amended Complaint. 75. The Office of Senator Ben Nighthorse Campbell denies the allegations set forth 10

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under Plaintiff's prayer for relief, including, but not limited to, subparagraphs lettered A-F, except the Office of Senator Ben Nighthorse Campbell admits that Plaintiff requests the relief set forth in her prayer for relief, and the Office of Senator Ben Nighthorse Campbell expressly denies that Plaintiff is entitled to any of the relief requested or any other relief. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Lack of Subject Matter Jurisdiction) 76. The Office of Senator Ben Nighthorse Campbell has absolute immunity under the Speech or Debate Clause of the U.S. Constitution (U.S. Const., art. I, § 6, cl. 1), and the Office of Senator Ben Nighthorse Campbell has not, and does not, waive that immunity. Rather, the Office of Senator Ben Nighthorse Campbell expressly preserves its Speech or Debate immunity. SECOND AFFIRMATIVE DEFENSE (Lack of Subject Matter Jurisdiction) 77. To the extent Plaintiff asserts in this action any claim for which she failed timely to file a request for counseling or a request for mediation and/or any claim that was not raised in her request for mediation, such claims are barred due to a failure to exhaust administrative remedies. See 2 U.S.C. §§ 1401, 1402, 1403, 1404 and 1408. THIRD AFFIRMATIVE DEFENSE (Lack of Subject Matter Jurisdiction) 78. To the extent Plaintiff alleges that the Office of Senator Ben Nighthorse Campbell committed illegal acts other than those prohibited by the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301-1438, the Court lacks jurisdiction over her claims. 11

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FOURTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) 79. The Amended Complaint fails to state a claim upon which relief can be granted. FIFTH AFFIRMATIVE DEFENSE (Statute of Limitations) 80. To the extent Plaintiff did not file a request for counseling with the Office of Compliance within 180 days of the alleged violation(s) of the CAA, her claim with respect to such alleged violation(s) is barred by the statute of limitations set forth in section 402 of the CAA, 2 U.S.C. § 1402. SIXTH AFFIRMATIVE DEFENSE (Injury Caused by Others) 81. To the extent Plaintiff has suffered any injury or damages, such injury or damages were not caused by the acts or omissions of the Office of Senator Ben Nighthorse Campbell, but by the acts or omissions of Plaintiff or of others. SEVENTH AFFIRMATIVE DEFENSE (Non-discriminatory Reasons) 82. The Office of Senator Ben Nighthorse Campbell's decisions with respect to Plaintiff's employment were based on legitimate, non-discriminatory reasons. EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 83. On information and belief, Plaintiff has failed to mitigate her damages, and to the extent of such failure to mitigate, any damages awarded to Plaintiff should be reduced accordingly.

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NINTH AFFIRMATIVE DEFENSE (Bad Faith) 84. Having brought this action in bad faith, Plaintiff must reimburse the Office of Senator Ben Nighthorse Campbell for its attorneys' fees and costs. TENTH AFFIRMATIVE DEFENSE (Exclusive Statutory Remedy) 85. The exclusive remedy for the claims asserted by Plaintiff is provided by the CAA. To the extent Plaintiff seeks relief that is not available under the CAA, the Court is without jurisdiction to grant the relief requested. ELEVENTH AFFIRMATIVE DEFENSE (Performance of Duties) 86. The Office of Senator Ben Nighthorse Campbell has performed fully any and all contractual, statutory and other duties to Plaintiff, and therefore Plaintiff is estopped to assert any claim or cause of action against the Office of Senator Ben Nighthorse Campbell. TWELFTH AFFIRMATIVE DEFENSE (Frivolous) 87. The allegations and claims asserted in the Amended Complaint have always been and continue to be frivolous. THIRTEENTH AFFIRMATIVE DEFENSE (Estoppel) 88. Any of the conduct of the Office of Senator Ben Nighthorse Campbell that is alleged to be unlawful was taken as a result of conduct by Plaintiff, and Plaintiff therefore is estopped to assert any cause of action against the Office of Senator Ben Nighthorse Campbell.

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FOURTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 89. To the extent Plaintiff has unclean hands, she is barred from equitable relief in this action. FIFTEENTH AFFIRMATIVE DEFENSE (Mixed Motive) 90. Even if the Office of Senator Ben Nighthorse Campbell took adverse action against Plaintiff in part because of an illegitimate motive, which it did not, the Office of Senator Ben Nighthorse Campbell would not be liable under the CAA or would have only limited liability if the Office of Senator Ben Nighthorse Campbell would have taken the same action even in the absence of the illegitimate motive. SIXTEENTH AFFIRMATIVE DEFENSE (Abatement/Mootness) 91. This Court lacks jurisdiction to adjudicate this lawsuit because the Office of Senator Ben Nighthorse Campbell ceased to exist on January 3, 2005, and is no longer an "employing office" subject to suit under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301 1438 (2000). See 2 U.S.C. §§ 1301(9), 1408(b), 1410. SEVENTEENTH AFFIRMATIVE DEFENSE (Separation of Powers/Sovereign Immunity) 92. The Court lacks jurisdiction to adjudicate this lawsuit because the Office of Senator Ben Nighthorse Campbell ceased to exist on January 3, 2005, and Congress has not waived sovereign immunity for CAA suits against non-existent congressional offices or for CAA suits against the Congress. 14

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WHEREFORE, the Office of Senator Ben Nighthorse Campbell prays that Plaintiff take nothing by her Amended Complaint, that the Amended Complaint be dismissed in its entirety, that the Office of Senator Ben Nighthorse Campbell be awarded its attorneys' fees and costs, and that the Court award to the Office of Senator Ben Nighthorse Campbell such other relief as it deems just and proper. Dated: October 10, 2006 Respectfully submitted,

/s/ Jean M. Manning Jean M. Manning Senate Chief Counsel for Employment [email protected] Claudia Kostel Senate Senior Counsel for Employment [email protected] Office of Senate Chief Counsel for Employment P.O. Box 77053 Washington, D.C. 20013 Telephone: (202) 224-5424 Facsimile: (202) 228-2557 Attorneys for Defendant, The Office of Senator Ben Nighthorse Campbell

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of October, 2006, I sent a true and accurate copy of Defendant's Answer to Amended Complaint to the following attorney, through the Electronic Case Filing system.

John Evangelisti, Esq. Karen Larson, Esq. 1120 Lincoln Street, Suite 711 Denver, Colorado 80203 Attorneys for Plaintiff, Rita Bastien /s/ Tonya Dixon Tonya Dixon