HAM v. AYERS et al

Filing 51

MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 8/1/2018. (DAS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
DONALD KAY HAM,
)
)
Plaintiff,
)
)
v.
)
Civil Case No. 15-1390 (RMC)
)
STEPHEN T. AYERS, In His Official
)
Capacity, Architect of the
)
Capitol, et al.,
)
)
Defendants.
)
____________________________________ )
MEMORANDUM OPINION
Since 1995, Congress has allowed its staff to sue for violations of equal
employment opportunity (EEO) rights as long as the employee completes certain pre-litigation
administrative steps. Donald Kay Ham alleges that he suffered a discriminatory hostile work
environment due to disabilities when he worked for the Architect of the Capitol. Both parties
move for summary judgment but neither addresses the facts needed to determine whether Mr.
Ham timely and adequately complained of a hostile work environment due to disabilities. Both
motions will be denied without prejudice and further briefing will be ordered.
I. FACTS
Only those facts necessary to the current issues are recited. Plaintiff Donald Kay
Ham is a 64 year old African American who worked as a sheet metal mechanic for the Architect
of the Capitol (AOC), a congressional office, between 1991 and 2015. See Mem. of P. & A. in
Opp’n to Defs.’ Mot. for Summ. J. and in Supp. of Pl.’s Mot. for Summ. J. (Pl.’s Mot.) [Dkt. 43]

1

at 2; Defs.’ Mot. for Summ. J. (Defs.’ Mot.) [Dkt. 41] at 4.1 Mr. Ham alleges that he is an
individual with a disability as defined by the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. § 12111 et seq., which applied to his job with the AOC through the Congressional
Accountability Act (CAA), 2 U.S.C. § 1301 et seq. Mr. Ham asserts that his supervisors knew
that he suffered from various physical ailments that affected his work: he testified that he
notified AOC that he suffered from sleep apnea when he first began working there in 1991,
although he never sought an accommodation for it, see Ex. 1, Defs.’ Mot, Depo. of Donald Kay
Ham (Ham Depo.) [Dkt. 41-1] at 69-70; after a May 2007 examination by Washington
Occupational Health Associates, Inc. (WOHA), Mr. Ham received a certificate indicating that his
lung functions were abnormal, see Ex. 4, Pl.’s Mot., WOHA Employee Certification [Dkt. 44-5]
at 1; primarily in 1994 but also multiple times thereafter, physical examinations conducted for
the AOC concluded that he would do better with a powered air respirator, see Pls.’ Mot. at 3-6;
on one occasion in August 2012, Mr. Ham was overcome by dust and had to be taken to hospital,
see id. at 6; and, most recently, on February 4, 2015 Washington Occupational Health Associates
found that Mr. Ham was “qualified to use a respirator.” See Ex. 5, Pl.’s Mot., Medical
Monitoring Examination Employer Notification [Dkt. 44-6] at 3.
Mr. Ham was placed on a Performance Improvement Plan (PIP) on November 9,
2011 for a 90-day period to improve identified work flaws. See Ex. A, Ham Depo., November 9,
2011 Performance Improvement Plan (Nov. 2011 PIP) [Dkt. 41-2] at 1. On January 24, 2012,
the PIP was extended to February 2, 2012, to allow his new supervisor more time to observe Mr.
Ham’s performance. See Ex. 2, Defs.’ Mot., January 24, 2012 Letter Extending Performance

1

Citations to Defendants’ Motion for Summary Judgment are to the electronic case filing (ECF)
page number.
2

Improvement Plan (Jan. 2012 Letter) [Dkt. 41-4] at 1. On March 30, 2012, Mr. Ham was
informed by his direct supervisor that he had failed the PIP and would be demoted to sheet metal
mechanic’s helper. See Ex. 3, Defs.’ Mot., March 30, 2012 Letter to Mr. Ham from Mr. Cole
(March 2012 Letter) [Dkt. 41-5] at 1. Mr. Ham appealed this decision to the Superintendent,
Senate Office Buildings, who agreed that Mr. Ham had failed the PIP but extended it for another
90 days; the Superintendent decided that Mr. Ham, as a long-time employee of 20-odd years,
should not suffer a demotion without more time to prove himself. See Ex. 6, Defs.’ Mot., July 1,
2013 Letter to Mr. Ham from Takis P. Tzamaras (July 2013 Letter) [Dkt. 41-8] at 1. On
February 13, 2013, Mr. Ham’s supervisor again concluded that Mr. Ham had failed to
demonstrate an acceptable level of performance and again decided to demote Mr. Ham. See Ex.
5, Defs.’ Mot., February 13, 2013 Letter to Mr. Ham from Mr. Cole (Feb. 2013 Letter) [Dkt. 417] at 1-2. Mr. Ham again appealed this decision to the Superintendent on March 4, 2013 but, by
decision dated July 1, 2013, the Superintendent agreed that Mr. Ham had failed his second PIP
and he was demoted. See July 2013 Letter at 1.
Under the Congressional Accountability Act, an employee of Congress must first
seek counseling on any EEO complaint; failing a satisfactory resolution, the employee must seek
mediation of his complaint(s); only then, after these steps are completed, can an employee bring
suit. On July 23, 2013, Mr. Ham filed a Formal Request for Counseling with the Congressional
Office of Compliance. See Ex. 3, Pl.’s Opp’n to Mot. to Dismiss, Formal Request for
Counseling (Counseling Request) [Dkt. 16-3] at 1. His Counseling Request identified the
following complaints: discrimination due to race, color, age, and disability, unfair evaluation,
demotion, and “harassment—hostile work environment.” Id. at 1-2. On or about September 11,
2013, Mr. Ham requested mediation. See Ex. 2, Pl.’s Opp’n to Mot. to Dismiss, Notice of

3

Invocation of Mediation (Mediation Request) [Dkt. 16-2] at 1. The Mediation Request did not
specify the issues Mr. Ham sought to mediate, but instead recounted the issues on which Mr.
Ham had requested counseling in July 2013. See id. (“Mr. Ham formally requested counseling
on July 23, 2013, alleging denial of reasonable accommodation, unfair evaluation, demotion,
unfair terms and conditions, disparate treatment, and harassment because of race, age, color,
disability, and retaliation, in violation of sections 201 and 207 of the Congressional
Accountability Act.”) (emphasis added).
Mr. Ham retired in July 2015, allegedly due to the harassment by his supervisors.
See Ham Depo. at 75. He filed the instant Complaint on August 26, 2015 against Stephen T.
Ayers, in his official capacity as the Architect of the Capitol. See Compl. [Dkt. 1]. Mr. Ham
brought four counts against the AOC: (1) Discrimination Due to Disability; (2) Constructive
Discharge Due to Violation of the ADA; (3) Hostile Work Environment; and (4) Retaliation. See
id. ¶¶ 105-51. On May 17, 2016, the AOC moved to dismiss counts I, II, and IV on the grounds
that Mr. Ham had failed to complete the administrative processes of the Congressional
Accountability Act; this Court granted the motion on January 10, 2017. See Memorandum
Opinion [Dkt. 23].
Following discovery, the AOC moved for summary judgment on Count III a year
later. See Defs.’ Mot. Mr. Ham opposed and filed a cross motion for summary judgment, see
Pl.’s Mot., and the AOC filed a combined reply and opposition. See Defs.’ Mem. of Law in
Opp’n to Pl.’s Mot. for Summ. J. and in Further Supp. of Defs.’ Mot. for Summ. J. (Defs.’
Reply) [Dkt. 49]. The motions are ripe for review.

4

II. LEGAL STANDARD
A. Motion for Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is sufficient admissible evidence such that a reasonable jury could return a
verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The party moving for summary judgment bears the initial responsibility of
identifying portions of the record which demonstrate the absence of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ. P.
56(c)(1)(A) (providing that the movant may cite to “depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials”). In response, the non-moving party must similarly designate
specific facts in the record that reveal a genuine issue for trial. See Celotex, 477 U.S. at 324. On
a motion for summary judgment, a court must analyze all facts and inferences in the light most
favorable to the non-moving party. See Anderson, 477 U.S. at 255. However, to the extent the
non-moving party relies on conclusory assertions offered without evidentiary support, such
assertions do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675
(D.C. Cir. 1999).
B. Congressional Accountability Act
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
5

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
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 court complaint he must (1) make a request for counseling within
180 days of the alleged violation and (2) complete counseling and mediation for each alleged
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-atArms, 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.”).
C. Hostile Work Environment
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972 (Title VII), prohibits status-based discrimination in federal workplaces.
42 U.S.C. § 2000e-16. The CAA extended Title VII to the AOC. See 2 U.S.C. § 1302(a)(2).
Title VII generally prohibits an employer from taking any “personnel action[]” based on an
employee’s race, color, religion, sex, or national origin. See id. § 2000e-16(a). The statute not
only protects employees from discrete discriminatory acts, but also protects them from a hostile
work environment, that is, a workplace permeated by discriminatory harassment based on an
employee’s protected status (race, color, religion, etc.). To establish a hostile work environment,

6

an employee must allege facts sufficient to demonstrate that the harassment is “sufficiently
severe or pervasive to alter the conditions of the victim’s employment”:
A plaintiff pleading a hostile work environment claim must show
that he was exposed to “‘discriminatory intimidation, ridicule, and
insult’ that is ‘sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.’” To assess a claim of hostile work environment, the
court considers “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.”
Durant v. District of Columbia Gov’t, 875 F.3d 685, 700 (D.C. Cir. 2017) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) and Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
65, 67 (1986)) (internal citations omitted). There is no bright-line test for a hostile work
environment, and a plaintiff need not show psychological harm or any specific adverse
employment outcome. See Harris, 510 U.S. at 23. “To determine whether a hostile work
environment exists, the court looks to the totality of the circumstances, including the frequency
of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an
employee’s work performance.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, (1998)).
III. ANALYSIS
The CAA waives congressional immunity from suit and is, therefore, strictly
construed. See 2 U.S.C. § 1408(a); Lane v. Pena, 518 U.S. 187, 192 (1996) (waiver of sovereign
immunity will be strictly construed). 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). Neither Mr. Ham, nor the
AOC, indicates that counseling and mediation occurred on Mr. Ham’s claim of a hostile work
environment claim due to his disabilities.
7

However, 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. See
Counseling 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, as relevant,
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 September 11, 2013. See Mediation Request. On or about June 12,
2014, the Office of Compliance notified him that mediation had ended without resolution. 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). “‘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 702-03 (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. Neither party addresses the exhaustion requirement in their motion for summary
judgment but the Court is obligated to ensure itself of its jurisdiction.

8

When a court must determine the timeliness of events, it is, of course, helpful for
the parties to provide dates, not all of which are included in the record here. Mr. Ham was first
placed on a three-month PIP on November 9, 2011 for work deficiencies. After Mr. Ham was
informed that he had failed the PIP, he sought reconsideration by the Superintendent, Senate
Office Buildings. The Superintendent agreed that Mr. Ham had failed the PIP but extended it for
another 90 days because Mr. Ham had worked for the AOC for more than 21 years. Mr. Ham’s
supervisor concluded that he had failed the second PIP as well, on February 13, 2013, and Mr.
Ham again sought reconsideration. On July 1, 2013, the Superintendent agreed that Mr. Ham
had failed the second PIP and that a demotion was appropriate. Mr. Ham sought EEO
counseling on July 22, 2013.
Overlooking the two PIPs altogether, Mr. Ham recites only the dates relevant to
his demotion. See Pl.’s Mot. at 6-7. He adds, without specificity, that “[f]rom February 2013,
until the approximate date of his retirement [in 2015], Plaintiff was subjected to unwarranted
criticism of the quality and the quantity of his work by his supervisors.” Id. at 9. He also alleges
that he “was subjected to increased criticism and writeups after he filed his formal request for
counseling with OOC [the Office of Compliance].” Id. Further, he complains that he suffered
“when he was asked to grind metal . . . without a powered dust mask.” Id. at 9-10 (indicating
Mr. Ham suffered from “emotional distress,” “physical pain,” and “mental anguish”).
Mr. Ham’s argument in support of his hostile work environment claim begins
with an introductory sentence: “[t]he following incidents occurred after July 2013, when
Plaintiff filed his request for counseling.” Id. at 17. Thereafter, he identifies a variety of
incidents allegedly designed to “make [P]laintiff’s life on the job unbearable”: his supervisors
assigned new tasks on the PIP; failed to allow a medically-warranted forced-air respirator for his

9

use; required Mr. Ham to grind metal in closed spaces; awakened Mr. Ham during safety
meetings by loud bangs on the table (alleged to be “violent and unhealthy tactics to wake up
Plaintiff”); contacted Mr. Ham during breaks to ask questions; and confined co-workers to the
shop for their work breaks due to Plaintiff. Id. Not only does Mr. Ham fail to include dates or
timeframes for the hostile acts alleged after July 2013, but he also fails to argue why these acts
present a valid hostile work environment claim under the CAA without a request for counseling
and mediation after July 2013.
Since Mr. Ham never returned for counseling on these allegedly harassing
incidents, Defendant might claim an easy victory. However, it is not quite so simple, because the
Court must consider whether any post-July 2013 hostile acts might be a continuation of an earlier
hostile work environment complaint that was included in the counseling and mediation requested
by Mr. Ham in July 2013.
Neither party mentions the salient fact that Mr. Ham’s request for counseling
complained of “[h]arassment—hostile work environment” due to a specific incident on July 17,
2013. See Counseling Request at 2. Mr. Ham described the problem as “Mr. Cole would not
allow me to take a break; Mr. Cole threatened.” Id. He asked for “fair treatment” as a remedy.
Id. This single incident was the only example he provided of a hostile work environment in the
180 days before Mr. Ham sought counseling. In legal parlance, a hostile work environment is a
term of art meaning actions that are “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Vinson, 477 U.S. at 67
(internal quotations omitted). A single incident of hostility is rarely sufficient to qualify. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims
are different in kind from discrete acts. Their very nature involves repeated conduct. . . . [A]

10

single act of harassment may not be actionable on its own.”). “Because [acts of harassment] may
not all occur within the filing period, the Supreme Court has held ‘provided that an act
contributing to the claim occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining liability.’” Vickers v.
Powell, 493 F.3d 186, 198 (D.C. Cir. 2007) (quoting Nat’l R.R. Passenger Corp., 536 U.S. at
117). The question becomes whether Mr. Ham’s layman’s use of the term “hostile work
environment” in his request for counseling is sufficient to satisfy the requirements of the CAA
and allow consideration of the post-July 2013 events. Neither party addresses this issue.
The statute requires both counseling and mediation before a lawsuit. See 2 U.S.C.
§ 1408(a). It is also not clear that Mr. Ham’s complaint of a single-incident hostile work
environment was part of the required mediation. The formal Notice of Invocation of Mediation
from the Office of Compliance stated: “Mr. Ham formally requested counseling on July 23,
2013, alleging denial of reasonable accommodation, unfair evaluation, demotion, unfair terms
and conditions, disparate treatment, and harassment because of race, age, color, disability, and
retaliation . . . ,” without identifying any relevant incidents on which such claims were based.
Mediation Request at 1. Whether the professionals in the OOC used the term “harassment” to
reference a claim of a “hostile work environment” is not clear and the parties have offered no
comment or analysis.
The Court is not here to discover arguments neither party mentioned or addressed
but it does need to have jurisdiction to decide anything. In this instance, the Court is reluctant to
decide the viability of Mr. Ham’s simple, but perhaps timely, allegation of a hostile work
environment without notice to, and argument from, the parties.

11

IV. CONCLUSION
For the reasons discussed above, the cross motions for summary judgment will be
denied without prejudice and the parties will be directed to brief the following questions:2
1. Did Mr. Ham’s request for counseling due to “harassment—
hostile work environment” based on a single incident adequately
raise a hostile work environment claim?
2. Was Mr. Ham’s hostile work environment claim a part of the
requested mediation, i.e., has Mr. Ham fully exhausted his
hostile work environment claim under the CAA?
3. If so, does that inclusion of a hostile work environment claim in
July 2013 allow the Court to consider events that occurred after
July 2013 as part of Mr. Ham’s hostile work environment claim?
In other words, are all of the “hostile” events alleged by Mr.
Ham, both before and after July 2013, part of the same hostile
work environment claim and, therefore, exhausted?
A memorializing Order accompanies this Memorandum Opinion.

Date: August 1, 2018

/s/
ROSEMARY M. COLLYER
United States District Judge

2

The parties are also directed to include dates or timeframes and citations to the record for every
factual assertion made in their briefs.
12