Kabakova v. Office of Architect of Capitol, Civil Action No. 19-1276 (BAH)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtChief Judge Beryl A. Howell
Docket NumberCivil Action No. 19-1276 (BAH)
Decision Date14 April 2020


Civil Action No. 19-1276 (BAH)


April 14, 2020

Chief Judge Beryl A. Howell


The plaintiff, Irina Kabakova, brings this action against her former employer, the Office of the Architect of the Capitol ("AOC"), under the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301, et seq., alleging discrimination and retaliation based on sex, national origin, disability, and whistleblowing, see First Amended Compl. ("FAC"), ECF No. 17. Under the version of the CAA applicable to the plaintiff's claims, exhaustion of administrative remedies is a jurisdictional prerequisite to filing an action in federal court. See Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 705 (D.C. Cir. 2009) ("Congress intended counseling and mediation to be jurisdictional requirements."). The defendant has moved to dismiss the amended complaint, under Federal Rule of Civil Procedure 12(b)(1), based on this jurisdictional requirement and, under Rule 12(b)6), for failure to state a claim upon which relief can be granted. See Def.'s Mot. to Dismiss Amended Compl. ("Def.'s Mot."), ECF No. 21. For the reasons explained below, the defendant's motion is granted.


During and after plaintiff's four years of employment with defendant, she initiated no fewer than five, sometimes overlapping administrative complaints, and was herself the subject of

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a fraud investigation by the AOC Office of Inspector General ("OIG"), all of which presents a tangle to tease out the various threads of her claims. These administrative matters and their factual underpinnings, as alleged in the plaintiff's complaint, are described below, followed by review of the procedural history of this suit.

A. Factual Allegations

Plaintiff began working at AOC in July 2014. FAC ¶ 9. In the two-year period relevant to this suit — March 2016 to her termination on April 14, 2018 — she was a Safety and Occupational Health Manager. Id. Her duties included "visiting . . . sites and buildings at the Capitol" to "conduct[] safety inspections and investigations." Id. According to the complaint, before March 2016, plaintiff "had no issues working under . . . supervisors Chrissy Widener or Ken Eads, receiving outstanding ratings, outstanding performance awards, special contribution awards, and quality step increases." Id. ¶ 10.

John Kelly became plaintiff's supervisor in March 2016. Id. ¶ 11. Immediately, the complaint alleges, the plaintiff "began experiencing gender, national origin, and age discrimination" from Kelly. Id. ¶ 11. The plaintiff, who was born in current-day Ukraine, was 49 years-old at the time. Id. ¶ 7. Kelly allegedly "[o]n more than one occasion, told Kabakova that she needed 'to work to deserve it,'" that she needed to "earn it back," that he would "not give her an outstanding evaluation even if she perform[ed] outstandingly," that "she needed to work harder." Id. ¶ 12. As support for the gender discrimination claim, the complaint alleges that Kelly "on one occasion" made comments like this "with his hand on Kabakova's knee." Id. ¶ 13. On other unspecified occasions, Kelly allegedly touched the plaintiff's hair and hugged her. Id. ¶¶ 13, 15. In addition, Kelly allegedly stated that the plaintiff was "not 'the same breed'" as another female employee, who had been characterized by a fourth party as "very flirtatious." Id. ¶ 18-19. Finally, the complaint alleges: "Shortly after Kelly began" supervising

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the plaintiff, "he promoted the only male employee under his supervision and gave him several awards despite his underperformance." Id. ¶ 23.

Regarding national origin discrimination, plaintiff alleges that "[o]n multiple occasions, Kelly mocked Kabakova's accent, telling her he could not understand her." Id. ¶ 20. Additionally, "[i]n late 2016, or January or February 2017, Kelly accused Kabakova of copying secret security documents because of her national origin." Id. ¶ 81.

Lastly, regarding age discrimination, plaintiff alleges that "[s]hortly after Kelly began, he requested that subordinates provide him their resumes. After reviewing Kabakova's resume, Kelly told Kabakova that because of her age and experience, she did not need additional training." Id. ¶ 21.

Between March and December 2016, Kelly allegedly attempted to lower plaintiff's rating on her previous year's performance review, id. ¶ 25, pushed plaintiff to cancel her telework agreement, id. ¶¶ 29-37, and denied funds for plaintiff to attend a training, id. ¶ 38, 41. Kelly also allegedly denied plaintiff approval to attend another training in March 2017. Id. ¶ 109

On December 20, 2016, plaintiff "asked Kelly to allow" her time off "from work to file an [Equal Employment Opportunity ("EEO")] complaint" alleging that he was discriminating against her based on sex, id. ¶ 61, but the complaint does not indicate his response or whether the plaintiff was given the time off. "On December 21, 2016, the plaintiff initiated EEO contact, and met with EEO Counselor Ed Lopez regarding her claims," id. ¶ 62, of "sexual harassment, discrimination, and the existence of a hostile workplace," id. ¶ 56. By February 15, 2017, the EEO investigation was complete and EEO reported to plaintiff in a meeting "that no discrimination was found." Id. ¶ 84. That same day, Lopez allegedly "told Kabakova that Kelly

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had interfered with the [EEO] investigation." Id. ¶ 86. Upon hearing this, plaintiff tried to withdraw her complaint, id. ¶ 91, but EEO "sent a memo of decision," id. ¶ 92.

After the December 2016 EEO investigation, Kelly allegedly "retaliated against Kabakova" by "ask[ing] Kabakova to do obscure and menial tasks" and by "isolat[ing] Kabakova from her team members and coworkers." Id. ¶¶ 72-73, 76.

"In late March 2017," according to the complaint, plaintiff and Kelly began clashing over safety after "Kabakova told Kelly that he was violating several safety policies and . . . standard operating procedures." Id. ¶ 101. Then, "[o]n April 5, 2017, Kelly claimed he was unaware that safety inspection or upkeep [were] part of Kabakova's responsibilities, telling her [that] he would consider whether to cooperate with her inspections" in the future. Id. ¶ 99. "As Kabakova continued to perform her safety inspection duties," the complaint adds, "Kelly refused to cooperate, a refusal that willfully violated safety requirements." Id. ¶ 100.

On April 13, 2017, plaintiff, while performing an inspection, "slipped down a flight of stairs and hit her head, resulting in a traumatic brain injury and multiple orthopedic injuries." Id. ¶ 122. The plaintiff has not returned to work since then. Id. ¶ 125.

The week after the fall, AOC filed a claim on the plaintiff's behalf with the Department of Labor ("DOL") Office of Workers' Compensation Program ("OWCP"). Id. ¶ 129. While OWCP was processing the claim, in May 2017, Kelly allegedly "forced" plaintiff "to take annual and sick leave" and "denied her leave without pay requests." Id. ¶ 132. Then, in early June, AOC told OWCP "that it was challenging Kabakova's claim," a decision the complaint alleges was made "on Kelly's recommendation." Id. ¶ 133. Kelly, the complaint says, believed there were "significant . . . unusual circumstances surrounding the incident." Id. ¶ 130. On August 3, 2017, OWCP denied the claim, and plaintiff appealed. Id. ¶¶ 134-35. The appeal was

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successful, and OWCP ultimately "approved Kabakova's workers compensation claim" on December 7, 2017. Id. ¶ 158.

While her appeal was pending, Kelly allegedly removed plaintiff from the team's email list, id. ¶ 137, deleted plaintiff's files about occupational health and safety from the shared computer drive, id. ¶ 138, and "place[d] Kabakova on AWOL status," id. ¶ 139. Also while the appeal was pending, in November 2017, Kelly initiated a complaint with the OIG "alleging that Kabakova submitted a fraudulent workers compensation claim, that she submitted false forms for wage loss," and that she otherwise violated AOC policy by not returning to work after her injury. Id. ¶ 141. An OIG report concluded "based on preponderance of the evidence, the employee committed [Federal Employees' Compensation Act] fraud when they fabricated an injury and made false statements by submitting a claim for compensation." Id. ¶ 143 (quoting OIG Report Number I-2018-01). "The employee also violated AOC policies when they were absent from work without supervisory approval and did not cooperate with the AOC OIG during the investigation." Id. (quoting OIG Report Number I-2018-01).

According to the complaint, OIG continued to investigate the plaintiff into the summer of 2018, issuing another statement on August 8, 2018. Id. ¶ 194. That statement, however, was about a separate complaint plaintiff made that "an AOC manager" was "abusing their authority." 2018-0013-INVI-P: Architect of the Capitol (AOC) Employee Responsibilities; Government Ethics; and Standards of Conduct: Substantiated.1 These allegations "were not substantiated" by OIG. Id. The complaint alleges that all of OIG's findings were false. See FAC ¶ 148, 202, 204.

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Finally, the complaint alleges that "[o]n April 14, 2018, plaintiff was terminated because, according to AOC, she had not fully recovered from her injury in April 2017 and did not return to work." Id. ¶ 176.

B. Administrative Matters

As the administrative basis for the instant claims, the complaint references three administrative matters 18-AC-53, 18-AC-63, and 19-AC-04. See FAC ¶¶ 186, 206, 208. The defendant's motion to dismiss identifies two additional, relevant administrative matters initiated by the plaintiff: 18-AC-34 and 19-AC-26. See Def.'s Mem. Supp. Mot. to Dismiss at 7 ("Def.'s Mem."), ECF No. 21. All five of these administrative matters are described to aid in evaluating whether the instant claims satisfy the jurisdictional...

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