Ham v. Ayers

229 F.Supp.3d 32

Donald Kay HAM, Plaintiff,

v.Stephen T. AYERS, In His Official Capacity, Architect of the Capitol, et al., Defendants.

Case No. 15–cv–1390 (RMC)

United States District Court, District of Columbia.

Signed January 10, 2017

Raouf Muhammad Abdullah, Raouf M. Abdullah & Associates, LLC, Upper Marlboro, MD, for Plaintiff.

Johnny Hillary Walker, III, April Denise Seabrook, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

ROSEMARY M. COLLYER, United States District Judge

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. 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 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 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 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 , 220 F.Supp.3d 81, 90, 2016 WL 7115956, at *5 (D.D.C. 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).

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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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,...