context: Once we conclude (as we must here) that the employer's asserted reason for the decision involves legislative activity protected by the Speech or Debate Clause, I believe (unlike the majority opinion) that the case must come to an end. I do not see how a plaintiff employee such as Howard can attempt to prove either that she in fact adequately performed her legislative activities or that her performance of legislative activities was not the actual reason for the employment action without forcing the employer to produce evidence that she did not adequately perform her legislative activities and that her poor performance of legislative activities was the actual reason for the employment action. But the Speech or Debate Clause protects the defendant from being forced to produce such evidence of legislative activities.
citation_a.signal: see also
citation_a.identifier: 971 F.2d 1531, 1546
citation_a.parenthetical: permissive inference violated Speech or Debate Clause where it "virtually compelled] Swindall to justify his legislative actions"
citation_a.sentence: See United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C.Cir.1995) (distinguishing voluntary production of protected evidence from production that “is necessary”); see also United States v. Swindall, 971 F.2d 1531, 1546 (11th Cir.1992) (permissive inference violated Speech or Debate Clause where it “virtually compelled] Swindall to justify his legislative actions”).
citation_b.signal: see
citation_b.identifier: 59 F.3d 1291, 1303
citation_b.parenthetical: distinguishing voluntary production of protected evidence from production that "is necessary"
citation_b.sentence: See United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C.Cir.1995) (distinguishing voluntary production of protected evidence from production that “is necessary”); see also United States v. Swindall, 971 F.2d 1531, 1546 (11th Cir.1992) (permissive inference violated Speech or Debate Clause where it “virtually compelled] Swindall to justify his legislative actions”).