United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
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.
is a 61-year-old African American who was employed by the
Architect of the Capitol (AOC) for approximately 22 years, from
November 1, 1991 until July 31, 2015. 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. 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
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.
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 and partially
asphyxiated and was transported by ambulance to Howard
University Hospital, where he spent a day recovering.
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.
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.
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.
filed this lawsuit on August 26, 2015. His Complaint contains
Count I alleges disability discrimination, for which he seeks
$300, 000 in compensatory damages, backpay, medical benefits,
and 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
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 ...