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

                                 MEMORANDUM OPINION

               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]




                                                1
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



1
 Citations to Defendants’ Motion for Summary Judgment are to the electronic case filing (ECF)
page number.

                                                 2
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



                                                 3
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.




                                                 4
                                     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 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

                                                   5
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. 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.”).

        C. Hostile Work Environment

                Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment

Opportunity Act of 1972 (Title VII), prohibits status-based discrimination in federal workplaces.

42 U.S.C. § 2000e-16. The CAA extended Title VII to the AOC. See 2 U.S.C. § 1302(a)(2).

Title VII generally prohibits an employer from taking any “personnel action[]” based on an

employee’s race, color, religion, sex, or national origin. See id. § 2000e-16(a). The statute not

only protects employees from discrete discriminatory acts, but also protects them from a hostile

work environment, that is, a workplace permeated by discriminatory harassment based on an

employee’s protected status (race, color, religion, etc.). To establish a hostile work environment,



                                                    6
an employee must allege facts sufficient to demonstrate that the harassment is “sufficiently

severe or pervasive to alter the conditions of the victim’s employment”:

               A plaintiff pleading a hostile work environment claim must show
               that he was exposed to “‘discriminatory intimidation, ridicule, and
               insult’ that is ‘sufficiently severe or pervasive to alter the conditions
               of the victim’s employment and create an abusive working
               environment.’” To assess a claim of hostile work environment, the
               court considers “the frequency of the discriminatory conduct; its
               severity; whether it is physically threatening or humiliating, or a
               mere offensive utterance; and whether it unreasonably interferes
               with an employee’s work performance.”

Durant v. District of Columbia Gov’t, 875 F.3d 685, 700 (D.C. Cir. 2017) (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) and Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

65, 67 (1986)) (internal citations omitted). There is no bright-line test for a hostile work

environment, and a plaintiff need not show psychological harm or any specific adverse

employment outcome. See Harris, 510 U.S. at 23. “To determine whether a hostile work

environment exists, the court looks to the totality of the circumstances, including the frequency

of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an

employee’s work performance.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)

(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, (1998)).

                                          III. ANALYSIS

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

construed. See 2 U.S.C. § 1408(a); Lane v. Pena, 518 U.S. 187, 192 (1996) (waiver of sovereign

immunity will be strictly construed). 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). Neither Mr. Ham, nor the

AOC, indicates that counseling and mediation occurred on Mr. Ham’s claim of a hostile work

environment claim due to his disabilities.

                                                  7
               However, 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. See

Counseling 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, as relevant,

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 September 11, 2013. See Mediation Request. On or about June 12,

2014, the Office of Compliance notified him that mediation had ended without resolution. 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). “‘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 702-03 (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. Neither party addresses the exhaustion requirement in their motion for summary

judgment but the Court is obligated to ensure itself of its jurisdiction.




                                                  8
               When a court must determine the timeliness of events, it is, of course, helpful for

the parties to provide dates, not all of which are included in the record here. Mr. Ham was first

placed on a three-month PIP on November 9, 2011 for work deficiencies. After Mr. Ham was

informed that he had failed the PIP, he sought reconsideration by the Superintendent, Senate

Office Buildings. The Superintendent agreed that Mr. Ham had failed the PIP but extended it for

another 90 days because Mr. Ham had worked for the AOC for more than 21 years. Mr. Ham’s

supervisor concluded that he had failed the second PIP as well, on February 13, 2013, and Mr.

Ham again sought reconsideration. On July 1, 2013, the Superintendent agreed that Mr. Ham

had failed the second PIP and that a demotion was appropriate. Mr. Ham sought EEO

counseling on July 22, 2013.

               Overlooking the two PIPs altogether, Mr. Ham recites only the dates relevant to

his demotion. See Pl.’s Mot. at 6-7. He adds, without specificity, that “[f]rom February 2013,

until the approximate date of his retirement [in 2015], Plaintiff was subjected to unwarranted

criticism of the quality and the quantity of his work by his supervisors.” Id. at 9. He also alleges

that he “was subjected to increased criticism and writeups after he filed his formal request for

counseling with OOC [the Office of Compliance].” Id. Further, he complains that he suffered

“when he was asked to grind metal . . . without a powered dust mask.” Id. at 9-10 (indicating

Mr. Ham suffered from “emotional distress,” “physical pain,” and “mental anguish”).

               Mr. Ham’s argument in support of his hostile work environment claim begins

with an introductory sentence: “[t]he following incidents occurred after July 2013, when

Plaintiff filed his request for counseling.” Id. at 17. Thereafter, he identifies a variety of

incidents allegedly designed to “make [P]laintiff’s life on the job unbearable”: his supervisors

assigned new tasks on the PIP; failed to allow a medically-warranted forced-air respirator for his



                                                  9
use; required Mr. Ham to grind metal in closed spaces; awakened Mr. Ham during safety

meetings by loud bangs on the table (alleged to be “violent and unhealthy tactics to wake up

Plaintiff”); contacted Mr. Ham during breaks to ask questions; and confined co-workers to the

shop for their work breaks due to Plaintiff. Id. Not only does Mr. Ham fail to include dates or

timeframes for the hostile acts alleged after July 2013, but he also fails to argue why these acts

present a valid hostile work environment claim under the CAA without a request for counseling

and mediation after July 2013.

               Since Mr. Ham never returned for counseling on these allegedly harassing

incidents, Defendant might claim an easy victory. However, it is not quite so simple, because the

Court must consider whether any post-July 2013 hostile acts might be a continuation of an earlier

hostile work environment complaint that was included in the counseling and mediation requested

by Mr. Ham in July 2013.

               Neither party mentions the salient fact that Mr. Ham’s request for counseling

complained of “[h]arassment—hostile work environment” due to a specific incident on July 17,

2013. See Counseling Request at 2. Mr. Ham described the problem as “Mr. Cole would not

allow me to take a break; Mr. Cole threatened.” Id. He asked for “fair treatment” as a remedy.

Id. This single incident was the only example he provided of a hostile work environment in the

180 days before Mr. Ham sought counseling. In legal parlance, a hostile work environment is a

term of art meaning actions that are “sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Vinson, 477 U.S. at 67

(internal quotations omitted). A single incident of hostility is rarely sufficient to qualify. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims

are different in kind from discrete acts. Their very nature involves repeated conduct. . . . [A]



                                                 10
single act of harassment may not be actionable on its own.”). “Because [acts of harassment] may

not all occur within the filing period, the Supreme Court has held ‘provided that an act

contributing to the claim occurs within the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of determining liability.’” Vickers v.

Powell, 493 F.3d 186, 198 (D.C. Cir. 2007) (quoting Nat’l R.R. Passenger Corp., 536 U.S. at

117). The question becomes whether Mr. Ham’s layman’s use of the term “hostile work

environment” in his request for counseling is sufficient to satisfy the requirements of the CAA

and allow consideration of the post-July 2013 events. Neither party addresses this issue.

               The statute requires both counseling and mediation before a lawsuit. See 2 U.S.C.

§ 1408(a). It is also not clear that Mr. Ham’s complaint of a single-incident hostile work

environment was part of the required mediation. The formal Notice of Invocation of Mediation

from the Office of Compliance stated: “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 . . . ,” without identifying any relevant incidents on which such claims were based.

Mediation Request at 1. Whether the professionals in the OOC used the term “harassment” to

reference a claim of a “hostile work environment” is not clear and the parties have offered no

comment or analysis.

               The Court is not here to discover arguments neither party mentioned or addressed

but it does need to have jurisdiction to decide anything. In this instance, the Court is reluctant to

decide the viability of Mr. Ham’s simple, but perhaps timely, allegation of a hostile work

environment without notice to, and argument from, the parties.




                                                 11
                                       IV. CONCLUSION

               For the reasons discussed above, the cross motions for summary judgment will be

denied without prejudice and the parties will be directed to brief the following questions:2

               1. Did Mr. Ham’s request for counseling due to “harassment—
                  hostile work environment” based on a single incident adequately
                  raise a hostile work environment claim?

               2. Was Mr. Ham’s hostile work environment claim a part of the
                  requested mediation, i.e., has Mr. Ham fully exhausted his
                  hostile work environment claim under the CAA?

               3. If so, does that inclusion of a hostile work environment claim in
                  July 2013 allow the Court to consider events that occurred after
                  July 2013 as part of Mr. Ham’s hostile work environment claim?
                  In other words, are all of the “hostile” events alleged by Mr.
                  Ham, both before and after July 2013, part of the same hostile
                  work environment claim and, therefore, exhausted?

A memorializing Order accompanies this Memorandum Opinion.



Date: August 1, 2018                                                 /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




2
  The parties are also directed to include dates or timeframes and citations to the record for every
factual assertion made in their briefs.

                                                 12
