229 F. Supp. 3d 32
D.D.C.2017Background
- Donald Kay Ham worked for the Architect of the Capitol (AOC) from 1991 until he resigned July 31, 2015; he alleges disability (lung problems) and discrimination under the Congressional Accountability Act (CAA) and ADA.
- From the 1990s through 2013, AOC-contracted clinicians documented lung issues and advised respirator use; AOC consistently rated Ham highly but did not provide a powered respirator until later.
- Key incidents: a February 2013 medical report (stating Ham was “qualified” to use a respirator); a February–July 2013 sequence of demotion/performance discipline; Ham filed a Formal Request for Counseling on July 23, 2013 and engaged in mediation ending June 2014.
- Ham requested accommodations in fall 2013 (powered respirator, knee brace); AOC provided only a knee brace and did not grant the respirator; Ham resigned in July 2015 and sued in August 2015 alleging disability discrimination (Count I), constructive discharge (Count II), hostile work environment (Count III), and retaliation (Count IV).
- AOC moved to dismiss Counts I, II, and IV for lack of jurisdiction, arguing Ham failed to exhaust administrative remedies required by the CAA for those claims; the court considered whether pre-suit counseling/mediation covered each asserted claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I (disability discrimination for denial of reasonable accommodation) is exhausted | Ham contends a Feb 2013 doctor’s report and later events put AOC on notice and constitute a timely basis for the claim | AOC argues Ham did not request an accommodation before filing for counseling; the Feb 2013 report did not request a powered respirator or sufficiently notify AOC | Dismissed for lack of jurisdiction — Ham did not allege a timely request/notice for the specific accommodation before counseling/mediation |
| Whether Count II (constructive discharge) is exhausted | Ham argues events predating his July 2013 counseling compelled his 2015 resignation, so exhaustion of earlier matters covers it | AOC contends Ham’s constructive-discharge claim accrued only at resignation in 2015 and was never submitted to counseling/mediation after accrual | Dismissed for lack of jurisdiction — claim accrued at resignation and Ham did not pursue post-resignation counseling/mediation |
| Whether Count IV (retaliation for requesting accommodation/engaging in counseling) is exhausted | Ham asserts retaliation stemmed from earlier protected activity (including the Feb 2013 report and later accommodation requests) | AOC maintains the only protected activities before counseling were limited, and Ham did not seek counseling/mediation for retaliatory acts that occurred after initial counseling | Dismissed for lack of jurisdiction — Ham failed to seek required counseling/mediation for alleged retaliatory actions occurring after the initial process |
| Jurisdictional effect of CAA exhaustion requirement | Ham argues some events fall within counseling period or provided notice so claims should proceed | AOC relies on CAA’s mandatory counseling/mediation prerequisites and the court’s lack of jurisdiction absent exhaustion | Court enforces CAA’s jurisdictional exhaustion rule; Counts I, II, and IV dismissed; AOC must answer remaining Count III within 21 days |
Key Cases Cited
- Kentucky v. Graham, 473 U.S. 159 (treating official-capacity suits as suits against the entity)
- Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82 (D.D.C.) (completion of counseling/mediation required for each claim under the CAA)
- Blackmon-Malloy v. U.S. Capitol Police Board, 575 F.3d 699 (D.C. Cir.) (CAA three-step process is jurisdictional)
- Flemmings v. Howard University, 198 F.3d 857 (D.C. Cir.) (employee bears burden to request accommodation)
- Green v. Brennan, 136 S. Ct. 1769 (Supreme Court) (constructive-discharge claim accrues only upon resignation)