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Andrew E. Bradshaw, Plaintiff v. Office of the Architect of

April 20, 2012

ANDREW E. BRADSHAW, PLAINTIFF,
v.
OFFICE OF THE ARCHITECT OF THE CAPITOL, DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Andrew E. Bradshaw filed a 24-count Complaint alleging that the defendant Office of the Architect of the Capitol, his former employer, violated the Congressional Accountability Act ("CAA"), 2 U.S.C. § 1301, et. seq. as well as prohibitions against employment discrimination and retaliatory employment practices through interference with plaintiff's application for disability retirement, constructive discharge of the plaintiff from his employment, and creation of a hostile work environment. See Complaint ("Compl."), ECF No. 1, ¶¶ 1, 2, 3. Pending before the Court is the defendant's Motion to Dismiss. ECF No. 4. The defendant seeks to dismiss 18 counts of the plaintiff's Complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction, due to the plaintiff's failure to seek counseling within 180 days after the alleged violation, or his knowledge of the alleged violation, as required by 2 U.S.C. § 1402(a). The defendant also seeks to dismiss 12 counts of the Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or in the alternative, summary judgment. For the reasons explained below, this Court dismisses 12 counts of the plaintiff's Complaint under Rule 12(b)(1) (Counts 1, 2, 3, 7, 9, 10, 11, 15, 17, 18, 19, and 23), and the remaining 12 counts of the Complaint under Rule 12(b)(6) (Counts 4, 5, 6, 8, 12, 13, 14, 16, 20, 21, 22, and 24). Since the Court dismisses all 24 counts of the plaintiff's Complaint, the plaintiff's case is dismissed.

I.FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff is a former employee in the Labor Division of the Office of the Architect of the Capitol. Compl. ¶ 9. He asserts that he is an AFSCME Local 626 dues-paying union member and is considered a "covered employee." Id. ¶ 4. The plaintiff was employed in the Labor Division from May 5, 2003 until 2008 when he was separated from employment pursuant to a Settlement Agreement with the defendant. Id. ¶¶ 9, 44, 45. The plaintiff notes that throughout his employment with the defendant, the defendant knew of "[p]laintiff's physical impairments of the major life activities of eating, sleeping, walking, seeing and concentrating pursuant to the qualified ADA [Americans with Disabilities Act] disabilities of diabetes, sleep apnea, hypertension, chronic knee problems, morbid obesity, depression, seeing, and substance abuse." Id. ¶ 13. According to the plaintiff, defendant "regarded the [p]laintiff as disabled" throughout his employment because of the aforementioned physical limitations. Id. ¶ 14.

In 2007, the plaintiff's supervisor proposed that the plaintiff be removed from his employment because of the plaintiff's "failure to follow leave procedures, absences without authorized leave . . . , inappropriate behavior, sleeping during duty hours, disappearance during duty hours and failure to follow the direct order of a supervisor." Id. ¶ 22; see also Plaintiff's/Applicant's Statement of Disability, ECF No. 4-4, at 5, question 6 ("As a result of my sleep apnea and alcoholism, I had difficulty staying awake, being on time and attending my job regularly which impacted my ability to perform duties with other staff members, and affected my work relationship with my supervisors."); id. at 5, question 5 ("My sleep apnea has affected my ability to remain awake and alert on the job and as a result, I was prevented from operating forklifts and other machinery"); id. ("My knee problem also reduced my mobility which made it difficult for me to perform tasks that required a great deal of walking or physical exertion.").

This lawsuit concerns the plaintiff's application for disability retirement benefits following his separation from employment. After the plaintiff submitted his application for disability retirement benefits on December 31, 2008, he was initially denied benefits on January 25, 2010. The plaintiff was ultimately awarded disability retirement benefits as of February 10, 2011. Nevertheless, he initiated this lawsuit on March 14, 2011, claiming that the January 25, 2010 letter from the Office of Personnel Management ("OPM") denying his disability retirement application provided the plaintiff notice that the defendant had engaged in unlawful discriminatory and retaliatory employment practices, which resulted in the initial delay or denial of his disability retirement benefits and had the effect of "depriv[ing] the Plaintiff of equal employment opportunities, terms, conditions and benefits of employment and otherwise adversely affect[ing] his status as an employee." Compl. ¶ 215. The plaintiff also claims that he was "terminated" from his employment improperly, which resulted in delaying his last compensation from his employer and the wrongful termination of his health benefits and insurance in February, 2009. See Declaration of Andrew E. Bradshaw ("Bradshaw Decl."), ECF No. 8-1, ¶¶ 92-96. This meant that, for a two year period, from February 2009 through February 2011, the plaintiff had "no medical insurance or benefits to cover treatment of the now exacerbated diagnosed medical conditions." Id. ¶ 96. The plaintiff brought this suit seeking $600,000.00 in "compensatory damages and damages consistent with the [CAA]," as well as attorneys' fees, to be made "whole for all earnings and benefits he would have received but for Defendant's unlawful and prohibited discriminatory and retaliatory employment practices," see Compl. at 46-47 (Prayer for Relief, at ¶¶ 3-5).

A.Plaintiff's Separation from Employment

On November 9, 2007, Herbert Francis, General Foreman of the Labor Division of the U.S. Capitol Buildings, "proposed the removal of the Plaintiff from his employment . . . for failure to follow leave procedures, absences without authorized leave (AWOL), inappropriate behavior, sleeping during duty hours, disappearance during duty hours and failure to follow the direct order of a supervisor." Id. ¶ 22. The plaintiff states that he "timely submitted a response" to the proposal to remove him from employment. Id. ¶ 23. On February 13, 2008, Carlos Elias, Superintendent of the U.S. Capitol Buildings, "concurred" in the proposal to remove the plaintiff from employment. Id. ¶ 24. The plaintiff requested "a due process hearing pursuant to Chapter 752" of the Architect of the Capitol Personnel Manual, id. ¶¶ 22, 25, which was scheduled for May 8, 2008.*fn1

On the date of the hearing, the parties entered into a Settlement Agreement "in lieu of a formal hearing." Id. ¶ 27. The Settlement Agreement provided for the "irrevocable resignation of the [p]laintiff," see id. ¶ 28, and included, inter alia, the following terms:*fn2

* "Mr. Bradshaw will work with the Employee Benefits and Services Branch, HRMD, to submit an application for disability retirement by May 23, 2008, with a permissible 'grace period' of 7 days in the event of any delay obtaining medical documents."

* "Mr. Bradshaw will be carried in a paid administrative leave status until August 8, 2008."

* "Mr. Bradshaw will be carried in a LWOP [Leave without Pay] status after using his own leave accruals for up to six (6) months or on the date a decision is received from the Office of Personnel Management (OPM) concerning his disability retirement application, whichever comes first."

* "Mr. Bradshaw hereby submits his irrevocable resignation effective at the end of the LWOP period or on the date a decision is received from OPM concerning his disability retirement application, whichever comes first (*This flexibility is provided based on the understanding that OPM is presently backlogged at 6-8 months)."

* "Mr. Bradshaw will not return to the Capitol Building work site for any reason after today."

* "In the event of Mr. Bradshaw's breach of this agreement, this agreement will be void and the termination action will be effective immediately without a right to a case review by a Hearing Officer, or a formal hearing before a Hearing Officer, including any grievances under the Collective Bargaining Agreement as of July 10, 2007, and a permanent record of the discipline action shall be placed in his Official Personnel Folder (OPF)."

* "By signature of this agreement, AFSCME Local 626, and Andrew Bradshaw withdraw and forgo all actions that could be filed against the AOC or its officials regarding the proposed termination, including any grievances under the Collective Bargaining Agreement of July 10, 2007."

* "Successful completion of this agreement constitutes that no more than Mr. Bradshaw's resignation will be included in his Official Personnel File (OPF)."

On June 20, 2008, Stephen Ayers, the then Acting Director of the Capitol, informed the plaintiff in a letter that the Security Agreement "as presented and agreed to by all signatories during the formal hearing held on May 8, 2008, shall be effected as written." Compl. ¶ 44.

B. Plaintiff's Disability Retirement Application and Appeals

Although the Settlement Agreement stipulated that the plaintiff would submit his disability retirement application by May 23, 2008, with a seven day grace period to account for delays in obtaining medical records, his mother, June Henderson, acting on the plaintiff's behalf, did not submit his application until December 31, 2008. Id. ¶ 47; Bradshaw Decl. ¶¶ 49-51.*fn3

The application was not complete when the plaintiff submitted it, however, because his supervisor (Supervisor James Barber) had not yet provided the required "Supervisor's Statement." The plaintiff alleges that he had "made timely and numerous requests for the statement of Plaintiff's second line supervisor James Barber to be submitted with his application for disability retirement," see Compl. ¶ 46; Pl.'s Decl. ¶¶ 41-42, but to no avail.

After the plaintiff submitted his application, Chief Vento, Chief of the Employee Benefits and Services Branch of the Human Resources Management Division of the Office of the Architect of the Capitol, advised the plaintiff's mother that the plaintiff's disability retirement application would be submitted to OPM in the first week of January 2009. Compl. ¶ 48. The plaintiff alleges that he and his mother met with Chief Vento in her office in late January or early February to inquire about the status of the application, and Chief Vento assured them "that she had submitted the application." Id. ¶¶ 49-50. The plaintiff and his mother again met with Chief Vento during March 2009 to inquire about the status of his application because he had not yet heard anything. Id. ¶ 51. After speaking with "an unidentified person" on the phone to inquire about the status of the plaintiff's application, Chief Vento told the plaintiff that "the application had been received." Id. ¶ 52.

It was not until April 2009 when the plaintiff and his mother again met with Chief Vento to inquire about the status of the plaintiff's application that Chief Vento informed the plaintiff that his application had been "held up" in the National Finance Center ("NFC") "because the [p]laintiff had not been totally severed from his position due to the agency owing a small check to the [p]laintiff." Id. ¶ 55. Chief Vento explained that "after the agency cut the [p]laintiff a check the NFC would continue to process" his application. Id. ¶ 56. In May 2009, the plaintiff had still not heard anything about the status of his application. At that time, Chief Vento allegedly reiterated that the plaintiff's application was being "held up" until the agency processed a check owed to the plaintiff. Id. ¶ 58. In May 2009, the plaintiff and his mother authorized Chief Vento to speak to the NFC and OPM on his behalf about the status of his application. Id. ¶ 59.

In June or July 2009, the plaintiff and his mother spoke with Margaret Newton, a retirement specialist in the Employee Benefits and Service Branch of the Human Resources Management Division of the Office of the Architect of the Capitol. Id. ¶ 60. Newton allegedly informed the plaintiff at that time that his application had not yet been processed by the NFC, and that the application "was still sitting in the NFC office as they did not know what to do with the application" because the plaintiff was terminated from employment on February 9, 2009 as a "resignation," and "not a disability retirement." Id. ¶¶ 61-62. The plaintiff also states that he learned at that time that "the application was not recorded as being received in the NFC until February 27, 2009, approximately two months subsequent to the time Chief Vento was to [have submitted] the application in early January, 2009." Id. ¶ 63. It was not until July 16, 2009, almost eight months after the plaintiff submitted his application, that OPM received the application. Id. ¶ 64.

Five months later, when it appears that the plaintiff still knew nothing about the status of his application, the plaintiff contacted Congressman Steny Hoyer to request assistance "respecting the processing of his application for disability retirement, the discontinuation of his health benefits and insurance and other benefits 'lost' during the alleged processing of his application for disability retirement." Id. ¶ 65. Following Congressman Hoyer's request to officials in the Office of the Architect of the Capitol, the plaintiff was informed by the OPM, on January 25, 2010, that his application for disability retirement had been denied. Id. ¶¶ 66-67.

The plaintiff alleges that it was in the January 25, 2010 OPM denial letter ("OPM Letter") that he "first learned that James Barber, [p]laintiff's second line supervisor, documented that [p]laintiff had a service deficiency of unacceptable attendance" and that "the medical documents regarding [p]laintiff's restrictions 'did not show that the service deficiency described by [Barber] was as a result of a disabling medical condition that precluded the performance of [plaintiff's] essential duties or medically warranted [plaintiff's] continued absence [from] the workplace." Id. ¶ 68.*fn4

On February 17, 2010, Congressman Hoyer's office provided the plaintiff a February 4, 2010 letter from Stephen Ayers, then Acting Architect of the Capitol, written in response to the Congressman's inquiry. Ayers noted in the letter that the plaintiff's application package "was processed and forwarded to the [NFC] on February 27, 2009." Id. ¶ 70. Ayers also stated that "due to an administrative letter by AOC, Mr . Bradshaw's voluntary resignation was processed before his application for disability retirement was adjudicated by [OPM]." Id. ¶ 71. "[T]his discrepancy," according to Ayers, "caused a delay in processing at NFC. As a result, OPM did not receive Mr. Bradshaw's application from NFC until September 16, 2009." Id. ¶ 72. "[W]hile AOC endeavored to resolve this matter with both NFC and OPM," Ayers stated, "the issues involved precluded the timely handling of Mr. Bradshaw's application." Id. ¶ 73. Ayers also allegedly noted (apparently ...


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