Case 1:21-cv-01321-JEB Document 6 Filed 07/30/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRANDON POPE, )
2440 Astron Drive )
Colorado Springs, CO 80906 )
)
Plaintiff, )
v. ) Case No. 1:21-cv-01321-JEB
)
THE OFFICE OF )
CONGRESSMAN DOUG LAMBORN, )
Rayburn House Office Building, 2371 )
Washington, D.C. 20515 )
)
Defendant. )
____________________________________)

ANSWER

Defendant, the Office of Congressman Doug Lamborn (“Office” or “Defendant”), through

undersigned counsel, hereby submits its Answer to the Complaint filed in this civil action by

Plaintiff Brandon Pope (“Plaintiff”) and states as follows:

AS TO PLAINTIFF’S SUMMARY PARAGRAPHS

As to Plaintiff’s first introductory paragraph: Defendant admits that Plaintiff has filed the

instant Complaint. Defendant denies the remaining allegations in Plaintiff’s first introductory

paragraph.

As to Plaintiff’s second introductory paragraph: Defendant admits it had questions at

various points during 2020 as to the efficacy of the changing COVID-19 safety precautions that

were discussed by House Leadership. Defendant admits that Congressman Lamborn and some

members of staff contracted COVID-19 in the fall of 2020. Defendant denies the remaining

allegations in Plaintiff’s second introductory paragraph.

As to Plaintiff’s third introductory paragraph: Defendant admits that in October 2020,

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some staff in the D.C. office tested positive for COVID-19. Defendant further admits it

followed safety protocols by temporarily closing its D.C. office and instructing all D.C.

employees to work from home, asking the District Office in Colorado Springs to handle phone

coverage as a result of the closure. Defendant admits that Chief of Staff Dale Anderson

reminded staff to maintain the confidentiality of internal office matters, including any private

health information of staffers that may have been disclosed to others in the office, which the

Defendant understands is required by federal law. Defendant admits that as part of the phones

being covered by the District office, Mr. Anderson instructed District staff to forward calls and

inquiries to relevant staffers, acknowledging that it would be inappropriate to disclose any

employee’s personal medical circumstances to the general public. Defendant denies the

remaining allegations in Plaintiff’s third introductory paragraph.

As to Plaintiff’s fourth introductory paragraph: Defendant denies the allegations in

Plaintiff’s fourth introductory paragraph.

As to Plaintiff’s fifth introductory paragraph: Defendant admits that Plaintiff’s

employment with the Office ended on December 7, 2020, when he resigned in lieu of

termination. Defendant denies the remaining allegations in Plaintiff’s fifth introductory

paragraph.

Answering further, during his employment with the Office, Plaintiff never raised any

concern regarding the office’s COVID-19 protocols and, in fact, regularly expressed his

opposition to COVID-19 safety measures, including expressing his views against wearing

masks and socially distancing. The Office advised staff on how to take reasonable safety

measures to protect against exposure to COVID-19 and accommodated individual requests for

additional protective measures, while also attempting to remain available to constituents who

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needed the Office’s essential services. By remaining open and available, many constituents,

and even people outside the district, were helped immensely by the office at a difficult time in

their lives. Plaintiff’s employment ended when he resigned in lieu of termination. The basis

for the termination of Plaintiff’s employment was Plaintiff’s own failure and unwillingness to

meet the office’s legitimate expectations. Defendant denies it retaliated against Plaintiff.

JURISDICTION 1

1. Defendant admits that this Court has jurisdiction under the Congressional Accountability

Act. The remaining allegations in paragraph 1 state legal conclusions to which no response is

required. To the extent a response is required, Defendant denies the remaining allegations in

paragraph 1.

2. Paragraph 2 states a legal conclusion to which no response is required. To the extent that

a response is required, Defendant admits that Plaintiff purports to describe the nature of this

action and that he purports to assert claims based on the statutes cited.

3. Defendant denies the allegations in paragraph 3.

4. Whether Plaintiff is a “covered employee” pursuant to the Congressional Accountability

Act is a legal conclusion to which no response is required. Defendant denies the remaining

allegations in paragraph 4.

5. Defendant admits the allegations in paragraph 5.

6. Paragraph 6 states a legal conclusion to which no response is required. To the extent a

response is required, Defendant admits it is an “employing office” pursuant to the Congressional

Accountability Act.

1
Defendant’s section headings in this Answer mirror those in Plaintiff’s Complaint and are not
intended to admit any allegation.
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7. Paragraph 7 states a legal conclusion to which no response is required. To the extent a

response is required, the language of the Congressional Accountability Act speaks for itself.

8. Paragraph 8 states a legal conclusion to which no response is required. To the extent a

response is required, the language of the Congressional Accountability Act speaks for itself.

9. Defendant admits that portions of the Occupational Safety and Health Act apply to

Congressional employers under the Congressional Accountability Act. To the extent Plaintiff

endeavors to interpret the specific requirements of the Occupational Safety and Health Act, those

interpretations constitute legal conclusions to which no response is required. To the extent a

response is required, Defendant denies the remaining allegations in paragraph 9.

10. Paragraph 10 states a legal conclusion to which no response is required. To the extent a

response is required, the language of the Congressional Accountability Act speaks for itself.

11. Paragraph 11 states legal conclusions to which no response is required. To the extent a

response is required, the Office of Congressional Workplace Rights records speak for themselves.

AS TO “BACKGROUND FACTS”

Pursuant to Federal Rule of Civil Procedure 12(f)(1), the Court may strike Plaintiff’s

“Background Facts” from the pleading as “impertinent.” Plaintiff’s inclusion of the heading

below, “Facts Pertinent to Retaliation Claim” demonstrates that the inclusion of “scandalous”

“Background Facts” (paragraphs 12 through 23) was done for no purpose other than to harass or

embarrass Defendant, to increase the newsworthy nature of this Complaint, and/or to possibly

create political repercussions. These paragraphs fail to include any allegations relevant to the

sole claim of retaliation in this Complaint, and therefore are, by their own characterization,

impertinent. Accordingly, the Court may strike those paragraphs “on its own.” See FRCP

12(f)(1).

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Nevertheless, Defendant answers these paragraphs as follows:

12. Defendant admits the allegations in paragraph 12.

13. The language of House Rule XXIII speaks for itself and therefore no response is required.

14. Defendant denies the allegations in paragraph 14.

15. Defendant admits that Representative Lamborn allowed his son to stay in his office

temporarily. Defendant denies the remaining allegations in paragraph 15.

16. Defendant denies the allegations in paragraph 16.

17. Defendant denies the allegations in paragraph 17, and its subparagraphs.

18. Defendant is without sufficient information to admit or deny beliefs of unnamed staffers or

the veracity of rumors shared by unnamed staffers. To the extent a response is required,

Defendant denies the allegations in paragraph 18.

19. Defendant denies the allegations in paragraph 19.

20. Defendant denies the allegations in paragraph 20.

21. Defendant denies the allegations in paragraph 21.

22. Defendant denies the allegations in paragraph 22.

23. Defendant denies the allegations in paragraph 23.

AS TO “FACTS PERTINENT TO RETALIATION CLAIM” 2

24. Defendant is without sufficient information to admit or deny the veracity of the allegation

regarding Plaintiff’s military service.

25. Defendant admits the allegations in paragraph 25.

26. Defendant admits that in March 2020, Plaintiff played a role in preparing the first draft of

2
As stated previously, Defendant agrees with the implication in Plaintiff’s heading that the
preceding paragraphs in the “Background Facts” section are not pertinent to Plaintiff’s retaliation
claim.
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the Office’s COVID-19 procedures after Chief of Staff Dale Anderson held a staff meeting

where Anderson outlined those procedures. Defendant admits that in March 2020, constituents

were no longer allowed in the District Office, and that at that time, there was no mask

requirement. Defendant is without sufficient information to admit or deny statements made to

the former District Director by Plaintiff. Defendant denies the remaining allegations in

paragraph 26.

27. Defendant is without sufficient information to admit or deny Plaintiff’s allegations

relating to individual conversations he may or may not have had with “Female Colleague 1” or

“Male Colleague 1.” Defendant denies any remaining allegations in paragraph 27.

28. Defendant denies the allegations in paragraph 28.

29. Defendant denies the allegations in paragraph 29.

30. Defendant denies the allegations in paragraph 30.

31. Defendant admits that staff were deemed “essential.” Defendant denies the remaining

allegations in paragraph 31.

32. Defendant admits the allegations in paragraph 32.

33. Defendant is without sufficient information to admit or deny the identity of “Female

Colleague 1.” Nevertheless, Defendant admits that in the spring of 2020, it promptly

accommodated a staffer in response to the staffer’s health-related concerns as expressed to

Chief of Staff Anderson. Defendant denies the remaining allegations in paragraph 33.

34. Defendant denies the allegations in paragraph 34.

35. Defendant admits the allegations in paragraph 35.

36. Defendant admits that all D.C. staff were invited to attend a viewing party on the night of

the primary election. Defendant admits that personal preferences with respect to masks and

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social distancing were honored as in all other circumstances. Defendant denies the remaining

allegations in paragraph 36.

37. Defendant denies the allegations in paragraph 37.

38. Defendant admits it complies with the Americans with Disabilities Act and provided

telework as a reasonable accommodation requested by a staffer. Defendant admits in August or

September 2020, D.C. Office staff were instructed that they were to be in the office when the

House was in session and when Representative Lamborn was present. Defendant is without

sufficient information to admit or deny Plaintiff’s perceptions. Defendant denies the remaining

allegations in paragraph 38.

39. Defendant denies the allegations in paragraph 39.

40. Defendant denies the allegations in paragraph 40.

41. Defendant denies the allegations in paragraph 41.

42. Defendant denies the allegations in paragraph 42.

43. Defendant admits in October 2020, the D.C. Office went to 50% in-office staffing.

Defendant denies the remaining allegations in paragraph 43.

44. Defendant admits that on or about October 5, 2020, Representative Lamborn was in

Colorado for events. Defendant admits that in the car, Representative Lamborn learned that his

Deputy Chief of Staff had tested positive for COVID-19 and that additional D.C. staffers were

symptomatic. Defendant admits that the Congressman spoke to a physician within the Office of

Attending Physician. Defendant denies the remaining allegations in paragraph 44.

45. Defendant denies that Congressman Lamborn made untrue statements to the Office of the

Attending Physician. Defendant denies that Congressman Lamborn was within six feet of his

staff for a period of fifteen minutes or longer during that week in accordance with the guidance

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from the Office of the Attending Physician, and therefore denies the allegation that

Congressman Lamborn was in “close proximity to his staff that week.” Defendant admits the

remaining allegations in paragraph 45.

46. Defendant admits the Office of Attending Physician advised the Congressman that he did

not need to be tested for the coronavirus unless he experienced symptoms. Defendant admits he

attended a campaign event on the evening of October 6, 2020. Defendant denies the remaining

allegations in paragraph 46.

47. Defendant admits Congressman Lamborn spoke with an individual from the Office of

Attending Physician. Defendant denies the remaining allegations in paragraph 47.

48. Defendant is without sufficient information to admit or deny how Plaintiff felt, and what,

if anything, Plaintiff expressed to the former District Director. Defendant denies the remaining

allegations in paragraph 48.

49. Defendant admits the allegations in paragraph 49.

50. Defendant admits that on a conference call on or about October 6, 2020, Chief of Staff

Anderson told district staff that the D.C. office was temporarily closed and D.C. staff would be

teleworking. Defendant admits it reminded staff that the office is required to maintain privacy

of any medical information it receives from staff which the Defendant understands is required

by federal law. Defendant denies the remaining allegations in paragraph 50.

51. Defendant admits Chief of Staff Anderson reminded staff to maintain privacy of any

medical information regarding other staff which the Defendant understands is required by

federal law. Defendant admits Chief of Staff Anderson instructed District Office staff to

forward calls and inquiries to relevant staffers. Defendant denies the remaining allegations in

paragraph 51.

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52. Defendant is without sufficient information to admit or deny the identity of the “top-level

employee in the District Office,” and therefore is unable to sufficiently respond to that person’s

whereabouts on October 6, 2020, or the COVID-19 test results of that employee on October 9,

2020. Defendant denies the remaining allegations in paragraph 52.

53. Defendant denies the allegations in paragraph 53.

54. Defendant denies the allegations in paragraph 54.

55. Defendant is without sufficient information to admit or deny what Plaintiff learned and

when.

56. Defendant is without sufficient information to admit or deny the allegations in paragraph

56.

57. Defendant admits that on or about November 19, 2020, all district staff were directed to

telework. Defendant admits that that 100% telework arrangement ended after Thanksgiving.

The “incidence of COVID-19 infections” in Colorado is a matter of public record to which no

response is required. Defendant denies the remaining allegations in paragraph 57.

58. Defendant admits it decided to terminate Plaintiff’s employment in or around early

December 2020. Defendant denies the remaining allegations in paragraph 58.

59. Defendant admits that on December 7, 2020, Chief of Staff Anderson called Plaintiff from

Washington, D.C., and told Plaintiff that the decision had been made with Representative

Lamborn’s approval to terminate Plaintiff’s employment because of Plaintiff’s lack of

professionalism and abrasiveness toward his colleagues and supervisors as well as his failure to

complete essential job assignments. Defendant denies the remaining allegations in paragraph

59.

60. Defendant admits that Chief of Staff Anderson had previously directed the District

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Director to address Plaintiff’s “lack of professionalism” and “abrasive” demeanor. Defendant

denies the remaining allegations in paragraph 60.

61. Defendant admits Plaintiff’s employment was terminated at or about 6:00pm Central

Time on December 7, 2020. 3

62. Defendant denies the allegations in paragraph 62.

AS TO “COUNT I – RETALIATION”

63. Defendant hereby refers to and incorporates its responses to paragraphs 1-62 of the

Complaint.

64. The allegations in paragraph 64 state legal conclusions to which no response is required.

To the extent any response is necessary, Defendant denies the allegations in paragraph 64 and all

liability.

65. The language of the Congressional Accountability Act speaks for itself and therefore no

response is required.

66. Defendant denies the allegations in paragraph 66 and all liability.

67. Defendant denies the allegations in paragraph 67 and all liability.

68. Defendant denies the allegations in paragraph 68 and any assertion that Plaintiff is entitled

to damages.

69. The allegations in paragraph 69 state legal conclusions to which no response is required.

To the extent any response is necessary, Defendant denies the allegations in paragraph 69 and

any assertion that Plaintiff is entitled to damages.

3
The District Office is located in Mountain Time, not Central Time.
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AS TO PRAYER FOR RELIEF

Answering the unnumbered and untitled paragraph found on pages 15 and 16 of the

Complaint beginning with the word “WHEREFORE” (the prayer for relief), the allegations in

this paragraph assert legal conclusions to which no response is required. To the extent a

response is required, Defendant denies that Plaintiff has any valid claim against Defendant and

denies that Plaintiff sustained any damages on account of any alleged action or alleged omission

of Defendant. Defendant further denies that Plaintiff is entitled to any of the damages or other

relief sought by Plaintiff in this unnumbered and untitled paragraph.

AS TO “JURY DEMAND”

Defendant denies the allegations of Plaintiff’s demand for jury trial, except to admit that

Plaintiff purports to demand a jury trial.

DEFENDANT’S AFFIRMATIVE AND OTHER DEFENSES

By pleading the following affirmative and other defenses pursuant to Rules 8 and 12 of the

Federal Rules of Civil Procedure, Defendant does not concede that each of the matters covered

by the numbered defenses is to be proven by Defendant, and Defendant reserves its position that

Plaintiff retains the burden of proof on all matters necessary to prove the claims asserted in the

Complaint and to establish his alleged damages.

FIRST DEFENSE

The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.

SECOND DEFENSE

Plaintiff cannot establish a prima facie case of reprisal.

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THIRD DEFENSE

Plaintiff’s claims should be dismissed because Defendant’s actions were all based on

legitimate non-retaliatory reasons, and thus were not based on Plaintiff’s alleged protected

activity, or any other unlawful factor.

FOURTH DEFENSE

Plaintiff’s employment relationship with Defendant was at-will and could be terminated at

any time, for any reason not made unlawful by the CAA, or for no reason at all.

FIFTH DEFENSE

Defendant and its employees acted reasonably and in good faith at all material times herein

based on all relevant facts and circumstances known by them at the time they so acted.

Accordingly, Plaintiff is barred from any recovery in this action.

SIXTH DEFENSE

Upon information and belief, Plaintiff may have failed to mitigate his alleged damages.

SEVENTH DEFENSE

Plaintiff’s claims and/or damages are barred, in whole or in part, by the after-acquired

evidence doctrine.

EIGHTH DEFENSE

Some or all of Plaintiff’s claims may be barred by the doctrine of unclean hands.

NINTH DEFENSE

Some or all of Plaintiff’s claims may be barred by the doctrine of estoppel.

TENTH DEFENSE

Some or all of Plaintiff’s claims may be barred by the doctrine of waiver.

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ELEVENTH DEFENSE

Some or all of Plaintiff’s claims may be barred or limited by the Speech or Debate Clause

in Article I, Section 6 of the United States Constitution.

GENERAL DENIAL AND RESERVATION OF RIGHTS

Any and all allegations not heretofore expressly admitted are denied, including, without

limitation, any allegations contained in the preamble, headings, or subheadings of the Complaint.

Defendant reserves the right to present additional affirmative and other defenses and to

supplement or amend its Answer as may be necessary.

Submitted by,

DEFENDANT THE OFFICE OF

CONGRESSMAN DOUG LAMBORN

By:
/s/ Joel J. Borovsky
/s/ Trevor S. Blake
/s/ Ann R. Rogers
Joel J. Borovsky, D.C. Bar #974812
Trevor St. George Blake II, D.C. Bar # 974319
Ann R. Rogers, D.C. Bar # 441622
U.S. House of Representatives
Office of House Employment Counsel
4300 O’Neill House Office Building
Washington, D.C. 20515
(202) 225-7075 `
Joel.Borovsky@mail.house.gov
Trevor.Blake@mail.house.gov
Ann.Rogers@mail.house.gov

Defendant’s Counsel

Date: July 30, 2021

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