Ham v. Ayers

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

Civil Case No. 15-1390 (RMC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 14, 2019

MEMORANDUM OPINION

Donald Kay Ham worked for the Architect of the Capitol as a sheet metal mechanic from 1991 to 2015. Mr. Ham now sues his former employer, alleging that he suffered a hostile work environment in violation of the Americans with Disabilities Act, made applicable to the Congress by the Congressional Accountability Act. The parties cross move for summary judgment, arguing over whether Mr. Ham's complaint of a hostile work environment was legally sufficient for the case he now wants to present.

On July 23, 2013, Mr. Ham filed a request for counseling with the Congressional Office of Compliance complaining of "harassment—hostile work environment" arising out of a single incident on July 17, 2013. In this Court, he has identified additional incidents contributing to the alleged hostile work environment that all occurred after July 2013, but which were never raised in counseling or mediation before the Congressional Office of Compliance.

The Court finds that Mr. Ham's initial complaint of a hostile work environment was infirm because it was based on a single disagreement with his supervisor. Without a viable complaint of a continuous, severe, and pervasive hostile environment as of July 23, the later incidents of which Mr. Ham complains were not administratively exhausted and the Court is without jurisdiction to hear his case.

I. FACTS

The facts have been previously discussed in two prior opinions by this Court, see Ham v. Ayers, 229 F. Supp. 3d 32, 34-36 (D.D.C. 2017) (Ham I); Ham v. Ayers, 318 F. Supp. 3d 296, 298-99 (D.D.C. 2018) (Ham II), and only those facts necessary to the current issue are recited.

Plaintiff Donald Kay Ham worked as a sheet metal mechanic for the Architect of the Capitol (AOC), a congressional office, between 1991 and 2015. See Def.'s Statement of Undisputed Material Facts (AOC SOF) [Dkt. 53] ¶¶ 1, 17. 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. § 12101 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, Def.'s Renewed Mot. for Summ. J., Depo. of Donald Kay Ham (Ham Depo.) [Dkt. 53-1] at 69-70; and 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 First Mot. for Summ. J., WOHA Employee Certification [Dkt. 44-5] at 1.

Under the CAA, an employee of Congress must first seek counseling on any Equal Employment Opportunity (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 theCongressional 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. The Counseling Request due to a hostile work environment identified a single incident on July 17, 2013, in which his supervisor refused to allow him to take a break and "threatened" him. See id. at 2 (alleging that Mr. Cole engaged in "harassment—hostile work environment—Mr. Cole would not allow me to take a break; Mr. Cole threatened me"). 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 groundsthat Mr. Ham had failed to complete the administrative processes of the CAA; this Court granted the motion on January 10, 2017. See Ham I, 229 F. Supp. 3d 32.

Following discovery, both parties moved for summary judgment and the Court denied both motions without prejudice, asking the parties to re-brief and focus on the question of whether Mr. Ham's hostile work environment was exhausted. See Ham II, 318 F. Supp. 3d 296. Both parties' renewed motions for summary judgment are now ripe.¹

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 designatespecific 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 the 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. See 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. 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 thatplaintiff's claim of retaliation must be dismissed for failure to exhaust her administrative remedies.").

C. Hostile Work Environment

The Americans with Disabilities Act 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). The CAA extended the ADA to the AOC. See 2 U.S.C. § 1311(a)(3). The D.C. Circuit has not yet addressed the question of whether a hostile work environment claim is available under the ADA, but the Court, like others before it, will not answer that question to determine the legitimacy of the underlying hostile work environment claim. See Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 236 (D.C. Cir. 2018) (noting that the defendant "did not raise whether a hostile-work-environment claim is available under the ADA, a question that this Court has not yet decided and that we do not reach here"); cf. Lanman v. Johnson Cty., 393 F.3d 1151, 1155-56 (10th Cir. 2004) (joining three other...