                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
__________________________________
                                         )
DONALD KAY HAM,                          )
                                         )
                 Plaintiff,              )
                                         )
      v.                                 )   Case No. 15-cv-1390 (RMC)
                                         )
STEPHEN T. AYERS, In His Official        )
Capacity, Architect of the               )
Capitol, et al.,                         )
                                         )
                 Defendants.             )
____________________________________ )

                                            OPINION

               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.



1
  Although the Complaint names Stephen T. Ayers, who is the Architect of the Capitol, Mr.
Ayers is only sued in his official capacity. The agency, the AOC, is substituted in his place. See
                                                 1
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




Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity.”).
2
  The Congressional Accountability Act applies thirteen civil rights, labor, and workplace safety
and health laws to the United States Congress and its Legislative Branch agencies; one such
Legislative Branch agency is the AOC. One of the thirteen statutes is the Americans with
Disabilities Act. See Mot. [Dkt. 13-1] at 1 n.2.

                                                2
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

                                                 3
               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


3
  The Court has jurisdiction pursuant to the Congressional Accountability Act of 1995. See 2
U.S.C. § 1404, 1408(a) (providing a civil right to sue in the district of employment or the District
of Columbia). Mr. Ham was employed in the District of Columbia. Venue is proper under 28
U.S.C. § 1391 because the AOC is located in the District of Columbia, Mr. Ham was employed
in the District of Columbia, and the alleged events took place in the District of Columbia.

                                                 4
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, No. 14-758, 2016 WL 7115956, at *5 (D.D.C. Dec. 6, 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).




                                                   5
       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 (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, 73 (D.D.C. 2006).

A court may consider materials outside the pleadings to determine its jurisdiction. Settles v. U.S.

Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Coal. for Underground Expansion v.

Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). A court has “broad discretion to consider relevant

and competent evidence” to resolve factual issues raised by a Rule 12(b)(1) motion. Finca Santa

Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B

Charles Wright & Arthur Miller, Fed. Prac. & Pro., Civil § 1350 (3d ed. 2004)); see also

Macharia v. United States, 238 F. Supp. 2d 13, 20 (D.D.C. 2002), aff’d, 334 F.3d 61 (2003) (in
                                                  6
reviewing a factual challenge to the truthfulness of the allegations in a complaint, a court may

examine testimony and affidavits). In these circumstances, consideration of documents outside

the pleadings does not convert the motion to dismiss into one for summary judgment. Al-Owhali

v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).

               When a plaintiff sues the United States, or one of its agencies or departments, the

complaint must allege facts that show that sovereign immunity has been waived. See Lane v.

Pena, 518 U.S. 187, 192 (1996) (waiver of sovereign immunity will be strictly construed).

                                         III. ANALYSIS

               The CAA waives congressional immunity from suit and is, therefore, strictly

construed. See 2 U.S.C. § 1408(a); Lane, 518 U.S. at 192. Its terms, acknowledged by Mr.

Ham, require an employee to obtain counseling on any charge of wrongdoing covered by the

CAA and then to mediate any remaining dispute before instituting litigation. 2 U.S.C. § 1408(a).

AOC contends that Mr. Ham never completed this administrative process for Counts I, II, and IV

and, therefore, the Court is without jurisdiction to consider those allegations. Mr. Ham

strenuously disagrees.

               Certain things are uncontested. Mr. Ham filed a Formal Request for Counseling

with the Office of Compliance, dated July 22, 2013 and filed July 23, 2013. Opp’n, Ex. 3 [Dkt.

16-3] (Formal Request). He complained of discrimination based on his race, African-American;

his disability, Asthma; his color, Black; and his age, 59 years old. Id. at 1. Specifically, Mr.

Ham complained that on February 13, 2013, he received an “unfair evaluation [and] demotion,”

for which he sought “[r]elief from harassment [and] reinstatement to former position.” Id. at 2.

He also complained that on July 17, 2013, he was subjected to “[h]arassment – hostile work

environment,” for which he requested “fair treatment.” Id. After counseling, Mr. Ham requested

mediation with the Office of Compliance and the latter assigned a mediator from its staff on
                                                 7
September 11, 2013. Opp’n, Ex. 2 [Dkt. 16-2] (Notice of Invocation of Mediation). On or about

June 12, 2014, the Office of Compliance notified him that mediation had ended. Mr. Ham filed

this suit on August 26, 2015.

               The “three-step process” under the CAA is jurisdictional, which means that it

must be completed or a federal court has no jurisdiction to hear the case. Blackmon-Malloy v.

U.S. Capitol Police Board, 575 F.3d 699, 701 (D.C. Cir. 2009). To complete these steps, and

thereby exhaust a claim under the CAA fully, an employee must (1) request counseling within

six months of a discriminatory act, (2) request and complete mediation, and only then, (3)

commence a civil action. See id. at 705-06. “‘A civil action may be commenced by a covered

employee only to seek redress for a violation for which the employee has completed counseling

and mediation.’” Id. at 705 (quoting 2 U.S.C. § 1408(a)). Section 1410 of the CAA emphasizes

this point: “Except as expressly authorized by sections 1407, 1408, and 1409 of this title, the

compliance or noncompliance with the provisions of this chapter and any action taken pursuant

to this chapter shall not be subject to judicial review.” 2 U.S.C. § 1410.

               Mr. Ham’s arguments must be evaluated within this context of clear statutory

directions that govern and limit Congress’s waiver of sovereign immunity.

       A. Count I (Disability Discrimination)

               Count I alleges disability discrimination after Mr. Ham requested a reasonable

accommodation for his lung problems. Mr. Ham describes his worsening lung problems over the

years and the resulting doctors’ reports to AOC, which indicated that his lungs were

deteriorating. For purposes of meeting his obligation to have been denied an accommodation

within six months of his request for counseling, he relies on a February 6, 2013 report to AOC

from Washington Occupational Health Associates that he “qualified” to use a respirator. Opp’n,

Ex. 1 [Dkt. 16-1] (Feb. 2013 Doctor’s Report). Mr. Ham argues that the Feb. 2013 Doctor’s
                                                 8
Report “notified AOC that Mr. Ham had severe obstruction in his lung capacity” and qualifies as

a notice of a need for an accommodation which was ignored. Opp’n at 2.

               “An underlying assumption of any reasonable accommodation claim is that the

plaintiff-employee has requested an accommodation which the defendant-employer has denied.”

Flemmings v. Howard University, 198 F.3d 857, 861 (D.C. Cir. 1999); see also Woodruff v.

LaHood, 777 F. Supp. 2d 33, 40 (D.D.C. 2011) (finding the burden lies with the employee to

make a request for accommodation). The law does not specify any formalities or specific format

for a request for an accommodation, but “the employer must be alerted to the condition and the

need for accommodation.” Thompson v. Rice, 422 F. Supp. 2d 158, 176 (D.D.C. 2006).

However, if an employer has a set of procedures for requesting accommodations, a failure to

comply with the designated process might preclude suit by the employee. See Edwards v. EPA,

456 F. Supp. 2d 72, 102-03 (D.D.C. 2006).

               The Court does not read the cited Feb. 2013 Doctor’s Report as notice that Mr.

Ham suffered a severe obstruction to his lung capacity or that Mr. Ham required an

accommodation to perform his job. The report only stated that Mr. Ham was “qualified” to use a

“respirator,” not that his lungs were badly congested or that he needed a powered respirator.

Feb. 2013 Doctor’s Report. Without evidence of a timely request or notice to AOC that Mr.

Ham needed an accommodation for his failing lungs,4 Mr. Ham has failed to allege that AOC

denied him a reasonable accommodation prior to his request for counseling. To be clear, the

only request for an accommodation alleged in the Complaint was in Fall 2013, after Mr. Ham’s



4
  The Court has not seen and does not decide whether any earlier report from a health care
professional gave AOC sufficient information that it could be deemed notice of Mr. Ham’s need
for an accommodation. Earlier reports are irrelevant if the Feb. 2013 Doctor’s Report does not
qualify as a timely request or notice.

                                                9
2013 requests for counseling and mediation. See Compl. ¶¶ 78-80. But when this request was

not granted, Mr. Ham failed to seek counseling and mediation again. Count I must be dismissed

because the Court is without jurisdiction.

       B. Count II (Constructive Discharge)

               Mr. Ham resigned from AOC on July 31, 2015, two years after he sought

counseling with the Office of Compliance. He did not bring his claim of constructive discharge

to the Office of Compliance for counseling or mediation. Mr. Ham argues that he exhausted his

constructive-discharge claim because the events that led him to resign took place before he

sought counseling in July 2013.

               A constructive discharge claim relies on proof that an employee’s “working

conditions bec[a]me so intolerable that a reasonable person in the employee’s position would

have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).

The gap in time between Mr. Ham’s 2013 request for counseling and 2015 resignation seriously

undercut the unspoken argument that his working conditions in 2013 continued to be so

intolerable, without remission, that he was compelled to resign in 2015.

               More importantly, having accepted the possibility of liability by waiving its rights

to sovereign immunity, Congress and its agencies are covered by the interpretations given to the

applicable laws by the Judiciary. As relevant here, the Supreme Court has held that a

constructive-discharge claim “accrues only after an employee resigns.” Green v. Brennan, 136

S. Ct. 1769, 1776-77 (2016) (emphasis added); see also Ross v. U.S. Capitol Police, No. 14-

1400, 2016 WL 3659888, at *10 & n.7 (D.D.C. June 30, 2016) (applying Green to a CAA

claim). This Judge agrees with its colleague “that the completion of counseling and mediation

for one set of violations does not give the court jurisdiction over related claims of retaliation that



                                                  10
occurred after counseling had commenced; the administrative remedies must be exhausted for

each claim.” Gordon, 750 F. Supp. 2d at 92-93.

               Because Mr. Ham’s right to complain of a constructive discharge accrued only

after he resigned his job with AOC in July 2015, and he admittedly did not seek separate

counseling or mediation thereafter, he cannot proceed under the CAA to litigate that allegation

here. The Court has no jurisdiction over this claim and Count II must be dismissed.

       C. Count IV (Retaliation)

               Count IV alleges that Mr. Ham suffered from AOC retaliation after he engaged in

protected activities under the CAA/ADA, specifically “requesting a reasonable accommodation”

and beginning “counseling and mediation.” Compl. ¶¶ 146-47. Defendant moves to dismiss

because all such events occurred only after he sought counseling on July 23, 2013, and Mr. Ham

never sought counseling or mediation concerning such retaliatory actions. Mr. Ham protests that

he asked for a powered respirator in February 2013 to accommodate his lung problems and that

AOC retaliated against him for that reason, as well as earlier notices or requests outside the

limitations period of 180 days. See Opp’n at 6.

               As discussed above, the Feb. 2013 Doctor’s Report did not address powered

respirators or Mr. Ham’s need for one; it only stated that he “qualified” to use a respirator

pursuant to a regulation of the Occupational Safety and Health Administration (OSHA). See

Feb. 2013 Doctor’s Report; OSHA, Respiratory Protection, 29 C.F.R. § 1910.134. The Feb.

2013 Doctor’s Report does not constitute a request for an accommodation and did not notify

AOC of Mr. Ham’s lung disability. His participation in that required check was not, therefore,

protected activity that would support a retaliation claim. In fact, the protected activity alleged in

the Complaint are Mr. Ham’s request for counseling in July 2013, request for mediation after

counseling, and request for an accommodation for his lung problems in the fall of 2013. “[T]o
                                                  11
bring a civil action for any retaliatory action that allegedly occurred after her participation in the

counseling or the mediation, the plaintiff should have requested additional counseling and

mediation to address any such actions.” Gordon, 750 F. Supp. 2d at 93. Because Mr. Ham never

requested counseling and mediation after the alleged protected activity, he has not satisfied the

mandatory pre-litigation steps of the CAA. See Blackmon-Malloy, 575 F.3d at 701-02. Count

IV must be dismissed for lack of jurisdiction.

                                        IV. CONCLUSION

               For the reasons discussed above, Defendant’s Motion to Dismiss in part will be

granted. Counts I, II, and IV will be dismissed. Defendant shall file an Answer to the Complaint

within 21 days. A memorializing order accompanies this opinion.



Date: January 10, 2017                                                /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




                                                  12
