HAM v. AYERS et al

Filing 23

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 1/10/2017. (DAS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
DONALD KAY HAM,
)
)
Plaintiff,
)
)
v.
)
Case No. 15-cv-1390 (RMC)
)
STEPHEN T. AYERS, In His Official
)
Capacity, Architect of the
)
Capitol, et al.,
)
)
Defendants.
)
____________________________________ )
OPINION
Donald Kay Ham worked for the Architect of the Capitol, Senate Office
Buildings Division, as a sheet metal mechanic until, fearing discharge, he resigned on July 31,
2015. In this lawsuit, he alleges that the Architect of the Capitol discriminated against him in
violation of the Congressional Accountability Act and the Americans with Disabilities Act. The
Architect of the Capitol has filed a motion to dismiss Counts I, II, and IV of Mr. Ham’s
complaint for failure to exhaust his administrative remedies as to those allegations. Mr. Ham
opposes. Because these pre-litigation steps must be completed or the Court is without
jurisdiction to hear a case, the Motion to Dismiss Counts I, II, and IV will be granted. The
Defendant will be ordered to file its Answer within 21 days of the issuance of this Opinion.
I. FACTS
Mr. Ham is a 61-year-old African American who was employed by the Architect
of the Capitol (AOC)1 for approximately 22 years, from November 1, 1991 until July 31, 2015.

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Although the Complaint names Stephen T. Ayers, who is the Architect of the Capitol, Mr.
Ayers is only sued in his official capacity. The agency, the AOC, is substituted in his place. See
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There is no dispute that in this position, he was a covered employee under the Congressional
Accountability Act (CAA), 2 U.S.C. §§ 1301-1438.2 He also alleges that he is an individual with
a disability within the meaning of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§ 12111 et seq., which the CAA applies to Congress and its agencies.
Mr. Ham alleges that he was an experienced sheet metal mechanic and in
excellent health when he joined AOC. However, “[f]rom the beginning of his employment with
AOC, Plaintiff was exposed to loud noises, particulate-laden air, dust, and he was required to
carry heavy loads.” Compl. [Dkt. 1] ¶ 33. Mr. Ham further alleges that starting in 1994 and
frequently thereafter, health professionals contracted by AOC reported to AOC that he had lung
problems that required him to have a powered respirator to supply air to his damaged lungs. See
id. ¶¶ 37-40, 42-49, 51-53, and 55-56. During this period (from 1994 through August 2012),
AOC refused and/or failed to purchase a powered respirator for Mr. Ham; it also consistently
awarded him high performance ratings.
On August 2, 2012, Mr. Ham was instructed to clean out a HEPA vacuum cleaner
“by blowing out clogged dust into a garage that was enclosed by plastic drapes.” Id. ¶ 62. HEPA
stands for high-efficiency particulate air; the vacuum cleaner was equipped with a HEPA filter
and had been used to “vacuum fine particles of blown insulation that had fallen from the
ceiling.” Id. ¶ 63. Due to the intake of dust from the vacuum cleaner, Mr. Ham became dizzy

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity.”).
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The Congressional Accountability Act applies thirteen civil rights, labor, and workplace safety
and health laws to the United States Congress and its Legislative Branch agencies; one such
Legislative Branch agency is the AOC. One of the thirteen statutes is the Americans with
Disabilities Act. See Mot. [Dkt. 13-1] at 1 n.2.
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and partially asphyxiated and was transported by ambulance to Howard University Hospital,
where he spent a day recovering.
Plaintiff alleges that one of the AOC-contracted health care professionals notified
AOC in February 2013 that Mr. Ham “had severe obstruction in his lung capacity.” Id. ¶ 70. On
or about February 13, 2013, Lewis W. Cole, assistant Supervisor of the Sheet Metal Branch,
AOC, notified Mr. Ham that he was being demoted from a mechanic to a helper position because
of substandard performance. Mr. Ham rebutted Mr. Cole’s notice, but on or about July 1, 2013,
Takas P. Tzamaras, Superintendent of the Senate Office Buildings, sent a letter to Mr. Ham in
which he told Mr. Ham that he would be demoted for performance deficiencies.
Mr. Ham additionally alleges that “[f]rom February 2013, until the approximate
date of his retirement, [he] was subjected to unwarranted criticism of the quality and the quantity
of his work” (as a Helper) and written up for alleged flaws in his work. Id. ¶ 94. He also
suffered from working around grinding metal pieces and in dusty environments without
protection for his lungs.
On or about July 23, 2013, Mr. Ham filed a Formal Request for Counseling with
the Congressional Office of Compliance. Thereafter, the parties engaged in unsuccessful
administrative mediation. In the fall of 2013, he sought an accommodation for his disabling lung
capacities (through use of a powered air-purifying respirator) and knee. AOC provided only a
brace for his knee. Despite advice from their own contract health professionals in late 2013 and
spring 2014 that Mr. Ham needed a powered air-purifying respirator, AOC did not provide one.
Mr. Ham filed this lawsuit on August 26, 2015. His Complaint contains four
counts:
Count 1 alleges disability discrimination, for which he seeks
$300,000 in compensatory damages, backpay, medical benefits, and
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attorney fees and costs. Mr. Ham further seeks an award of punitive
damages of $1,000,000 and an injunction to prevent AOC from
depriving other employees with disabilities of their rights to a
reasonable accommodation.
Count II alleges that Mr. Ham was constructively discharged in
violation of the ADA, for which he separately seeks the same
monetary and equitable relief.
Count III alleges that AOC created a hostile work environment for
Mr. Ham by continuous, unwarranted, accusations which caused
him to become ill and fear that he would be discharged, in violation
of the Congressional Accountability Act, for which he seeks the
same monetary and equitable relief.
Count IV alleges that AOC retaliated against Mr. Ham after he
requested a reasonable accommodation and, even more, after he
began counseling and mediation with OOC. He seeks the same
monetary and equitable relief.
Compl. ¶¶ 105-151. AOC moved to dismiss Counts I, II, and IV. Mot. Mr. Ham opposed,
Opp’n [Dkt. 16], and AOC replied. Reply [Dkt. 21]. The motion to dismiss in part is ripe for
decision.3
II. LEGAL STANDARD
A. Congressional Accountability Act (CAA), 2 U.S.C. § 1301 et seq.
The Congressional Accountability Act extended the protections of thirteen civil
rights, labor, and workplace safety and health laws to Congress and Legislative Branch agencies,
including the AOC. See 2 U.S.C. §§ 1301(5), 1302(a). An employee covered under the CAA
may commence a civil action “only to seek redress for a violation for which the employee has
completed counseling and mediation.” 2 U.S.C. § 1408(a); see also Gordon v. Office of the

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The Court has jurisdiction pursuant to the Congressional Accountability Act of 1995. See 2
U.S.C. § 1404, 1408(a) (providing a civil right to sue in the district of employment or the District
of Columbia). Mr. Ham was employed in the District of Columbia. Venue is proper under 28
U.S.C. § 1391 because the AOC is located in the District of Columbia, Mr. Ham was employed
in the District of Columbia, and the alleged events took place in the District of Columbia.
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Architect of the Capitol, 750 F. Supp. 2d 82, 89-90 (D.D.C. 2010). An employee must make a
request for counseling within 180 days of an alleged violation. 2 U.S.C. § 1402(a). Therefore,
before an employee may file a claim he must (1) make a request for counseling within 180 days
of the alleged violation and (2) complete counseling and mediation for each violation. See
Gordon, 750 F. Supp. 2d at 92-93 (“This Court has also held that the completion of counseling
and mediation for one set of violations does not give the court jurisdiction over related claims of
retaliation that occurred after counseling had commenced; the administrative remedies must be
exhausted for each claim.”); Halcomb v. Office of the Senate Sergeant-At-Arms, 209 F. Supp. 2d
175, 177-79 (D.D.C. 2002) (“Because the language of the CAA provision at issue in this case
clearly confers jurisdiction to this Court only if plaintiff has satisfied the administrative
prerequisites to filing suit, the Court holds that plaintiff’s claim of retaliation must be dismissed
for failure to exhaust her administrative remedies.”).
B. Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
The ADA prohibits discrimination against “a qualified individual on the basis of
disability in regard to . . . the hiring, advancement, or discharge of employees . . . and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a); see also Owens-Hart v.
Howard University, No. 14-758, 2016 WL 7115956, at *5 (D.D.C. Dec. 6, 2016). A claim for
discrimination under the ADA must allege that: (1) the plaintiff had a disability within the
meaning of the statute, (2) the employer had notice of the disability, (3) “with reasonable
accommodation [the employee] could perform the essential functions of [the] job”; and (4) “the
employer refused to make such accommodations.” Floyd v. Lee, 968 F. Supp. 2d 308, 315-16
(D.D.C. 2013).

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C. Motion to Dismiss – Fed. R. Civ. P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move to dismiss a
complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). No action of the parties can confer subject matter jurisdiction on a federal court
because subject matter jurisdiction is both a statutory requirement and an Article III requirement.
Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming
subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr
v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (noting that federal courts are courts of limited jurisdiction and
“[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction”) (internal citations omitted).
When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1),
a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that
can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004).
Nevertheless, “the Court need not accept factual inferences drawn by plaintiffs if those
inferences are not supported by facts alleged in the complaint, nor must the Court accept
plaintiffs’ legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).
A court may consider materials outside the pleadings to determine its jurisdiction. Settles v. U.S.
Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Coal. for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). A court has “broad discretion to consider relevant
and competent evidence” to resolve factual issues raised by a Rule 12(b)(1) motion. Finca Santa
Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B
Charles Wright & Arthur Miller, Fed. Prac. & Pro., Civil § 1350 (3d ed. 2004)); see also
Macharia v. United States, 238 F. Supp. 2d 13, 20 (D.D.C. 2002), aff’d, 334 F.3d 61 (2003) (in
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reviewing a factual challenge to the truthfulness of the allegations in a complaint, a court may
examine testimony and affidavits). In these circumstances, consideration of documents outside
the pleadings does not convert the motion to dismiss into one for summary judgment. Al-Owhali
v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).
When a plaintiff sues the United States, or one of its agencies or departments, the
complaint must allege facts that show that sovereign immunity has been waived. See Lane v.
Pena, 518 U.S. 187, 192 (1996) (waiver of sovereign immunity will be strictly construed).
III. ANALYSIS
The CAA waives congressional immunity from suit and is, therefore, strictly
construed. See 2 U.S.C. § 1408(a); Lane, 518 U.S. at 192. Its terms, acknowledged by Mr.
Ham, require an employee to obtain counseling on any charge of wrongdoing covered by the
CAA and then to mediate any remaining dispute before instituting litigation. 2 U.S.C. § 1408(a).
AOC contends that Mr. Ham never completed this administrative process for Counts I, II, and IV
and, therefore, the Court is without jurisdiction to consider those allegations. Mr. Ham
strenuously disagrees.
Certain things are uncontested. Mr. Ham filed a Formal Request for Counseling
with the Office of Compliance, dated July 22, 2013 and filed July 23, 2013. Opp’n, Ex. 3 [Dkt.
16-3] (Formal Request). He complained of discrimination based on his race, African-American;
his disability, Asthma; his color, Black; and his age, 59 years old. Id. at 1. Specifically, Mr.
Ham complained that on February 13, 2013, he received an “unfair evaluation [and] demotion,”
for which he sought “[r]elief from harassment [and] reinstatement to former position.” Id. at 2.
He also complained that on July 17, 2013, he was subjected to “[h]arassment – hostile work
environment,” for which he requested “fair treatment.” Id. After counseling, Mr. Ham requested
mediation with the Office of Compliance and the latter assigned a mediator from its staff on
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September 11, 2013. Opp’n, Ex. 2 [Dkt. 16-2] (Notice of Invocation of Mediation). On or about
June 12, 2014, the Office of Compliance notified him that mediation had ended. Mr. Ham filed
this suit on August 26, 2015.
The “three-step process” under the CAA is jurisdictional, which means that it
must be completed or a federal court has no jurisdiction to hear the case. Blackmon-Malloy v.
U.S. Capitol Police Board, 575 F.3d 699, 701 (D.C. Cir. 2009). To complete these steps, and
thereby exhaust a claim under the CAA fully, an employee must (1) request counseling within
six months of a discriminatory act, (2) request and complete mediation, and only then, (3)
commence a civil action. See id. at 705-06. “‘A civil action may be commenced by a covered
employee only to seek redress for a violation for which the employee has completed counseling
and mediation.’” Id. at 705 (quoting 2 U.S.C. § 1408(a)). Section 1410 of the CAA emphasizes
this point: “Except as expressly authorized by sections 1407, 1408, and 1409 of this title, the
compliance or noncompliance with the provisions of this chapter and any action taken pursuant
to this chapter shall not be subject to judicial review.” 2 U.S.C. § 1410.
Mr. Ham’s arguments must be evaluated within this context of clear statutory
directions that govern and limit Congress’s waiver of sovereign immunity.
A. Count I (Disability Discrimination)
Count I alleges disability discrimination after Mr. Ham requested a reasonable
accommodation for his lung problems. Mr. Ham describes his worsening lung problems over the
years and the resulting doctors’ reports to AOC, which indicated that his lungs were
deteriorating. For purposes of meeting his obligation to have been denied an accommodation
within six months of his request for counseling, he relies on a February 6, 2013 report to AOC
from Washington Occupational Health Associates that he “qualified” to use a respirator. Opp’n,
Ex. 1 [Dkt. 16-1] (Feb. 2013 Doctor’s Report). Mr. Ham argues that the Feb. 2013 Doctor’s
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Report “notified AOC that Mr. Ham had severe obstruction in his lung capacity” and qualifies as
a notice of a need for an accommodation which was ignored. Opp’n at 2.
“An underlying assumption of any reasonable accommodation claim is that the
plaintiff-employee has requested an accommodation which the defendant-employer has denied.”
Flemmings v. Howard University, 198 F.3d 857, 861 (D.C. Cir. 1999); see also Woodruff v.
LaHood, 777 F. Supp. 2d 33, 40 (D.D.C. 2011) (finding the burden lies with the employee to
make a request for accommodation). The law does not specify any formalities or specific format
for a request for an accommodation, but “the employer must be alerted to the condition and the
need for accommodation.” Thompson v. Rice, 422 F. Supp. 2d 158, 176 (D.D.C. 2006).
However, if an employer has a set of procedures for requesting accommodations, a failure to
comply with the designated process might preclude suit by the employee. See Edwards v. EPA,
456 F. Supp. 2d 72, 102-03 (D.D.C. 2006).
The Court does not read the cited Feb. 2013 Doctor’s Report as notice that Mr.
Ham suffered a severe obstruction to his lung capacity or that Mr. Ham required an
accommodation to perform his job. The report only stated that Mr. Ham was “qualified” to use a
“respirator,” not that his lungs were badly congested or that he needed a powered respirator.
Feb. 2013 Doctor’s Report. Without evidence of a timely request or notice to AOC that Mr.
Ham needed an accommodation for his failing lungs,4 Mr. Ham has failed to allege that AOC
denied him a reasonable accommodation prior to his request for counseling. To be clear, the
only request for an accommodation alleged in the Complaint was in Fall 2013, after Mr. Ham’s

4

The Court has not seen and does not decide whether any earlier report from a health care
professional gave AOC sufficient information that it could be deemed notice of Mr. Ham’s need
for an accommodation. Earlier reports are irrelevant if the Feb. 2013 Doctor’s Report does not
qualify as a timely request or notice.
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2013 requests for counseling and mediation. See Compl. ¶¶ 78-80. But when this request was
not granted, Mr. Ham failed to seek counseling and mediation again. Count I must be dismissed
because the Court is without jurisdiction.
B. Count II (Constructive Discharge)
Mr. Ham resigned from AOC on July 31, 2015, two years after he sought
counseling with the Office of Compliance. He did not bring his claim of constructive discharge
to the Office of Compliance for counseling or mediation. Mr. Ham argues that he exhausted his
constructive-discharge claim because the events that led him to resign took place before he
sought counseling in July 2013.
A constructive discharge claim relies on proof that an employee’s “working
conditions bec[a]me so intolerable that a reasonable person in the employee’s position would
have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).
The gap in time between Mr. Ham’s 2013 request for counseling and 2015 resignation seriously
undercut the unspoken argument that his working conditions in 2013 continued to be so
intolerable, without remission, that he was compelled to resign in 2015.
More importantly, having accepted the possibility of liability by waiving its rights
to sovereign immunity, Congress and its agencies are covered by the interpretations given to the
applicable laws by the Judiciary. As relevant here, the Supreme Court has held that a
constructive-discharge claim “accrues only after an employee resigns.” Green v. Brennan, 136
S. Ct. 1769, 1776-77 (2016) (emphasis added); see also Ross v. U.S. Capitol Police, No. 141400, 2016 WL 3659888, at *10 & n.7 (D.D.C. June 30, 2016) (applying Green to a CAA
claim). This Judge agrees with its colleague “that the completion of counseling and mediation
for one set of violations does not give the court jurisdiction over related claims of retaliation that

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occurred after counseling had commenced; the administrative remedies must be exhausted for
each claim.” Gordon, 750 F. Supp. 2d at 92-93.
Because Mr. Ham’s right to complain of a constructive discharge accrued only
after he resigned his job with AOC in July 2015, and he admittedly did not seek separate
counseling or mediation thereafter, he cannot proceed under the CAA to litigate that allegation
here. The Court has no jurisdiction over this claim and Count II must be dismissed.
C. Count IV (Retaliation)
Count IV alleges that Mr. Ham suffered from AOC retaliation after he engaged in
protected activities under the CAA/ADA, specifically “requesting a reasonable accommodation”
and beginning “counseling and mediation.” Compl. ¶¶ 146-47. Defendant moves to dismiss
because all such events occurred only after he sought counseling on July 23, 2013, and Mr. Ham
never sought counseling or mediation concerning such retaliatory actions. Mr. Ham protests that
he asked for a powered respirator in February 2013 to accommodate his lung problems and that
AOC retaliated against him for that reason, as well as earlier notices or requests outside the
limitations period of 180 days. See Opp’n at 6.
As discussed above, the Feb. 2013 Doctor’s Report did not address powered
respirators or Mr. Ham’s need for one; it only stated that he “qualified” to use a respirator
pursuant to a regulation of the Occupational Safety and Health Administration (OSHA). See
Feb. 2013 Doctor’s Report; OSHA, Respiratory Protection, 29 C.F.R. § 1910.134. The Feb.
2013 Doctor’s Report does not constitute a request for an accommodation and did not notify
AOC of Mr. Ham’s lung disability. His participation in that required check was not, therefore,
protected activity that would support a retaliation claim. In fact, the protected activity alleged in
the Complaint are Mr. Ham’s request for counseling in July 2013, request for mediation after
counseling, and request for an accommodation for his lung problems in the fall of 2013. “[T]o
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bring a civil action for any retaliatory action that allegedly occurred after her participation in the
counseling or the mediation, the plaintiff should have requested additional counseling and
mediation to address any such actions.” Gordon, 750 F. Supp. 2d at 93. Because Mr. Ham never
requested counseling and mediation after the alleged protected activity, he has not satisfied the
mandatory pre-litigation steps of the CAA. See Blackmon-Malloy, 575 F.3d at 701-02. Count
IV must be dismissed for lack of jurisdiction.
IV. CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss in part will be
granted. Counts I, II, and IV will be dismissed. Defendant shall file an Answer to the Complaint
within 21 days. A memorializing order accompanies this opinion.

Date: January 10, 2017

/s/
ROSEMARY M. COLLYER
United States District Judge

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