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Ham v. Ayers

United States District Court, District of Columbia

August 1, 2018

DONALD KAY HAM, Plaintiff,
STEPHEN T. AYERS, In His Official Capacity, Architect of the Capitol, et al., Defendants.



         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] 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 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. 41-7] 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 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.


         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 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-at-Arms, 209 F.Supp.2d 175, 177-79 (D.D.C. ...

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