UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZUHAIR MAHMOUD,

Plaintiff, v. Civil Action No. 20-1935 (JEB) LIBRARY OF CONGRESS, et al.,

Defendants.

MEMORANDUM OPINION

Pro se Plaintiff Zuhair Mahmoud is a blind information-technology specialist working at

the U.S. Library of Congress. His suit alleges that the Library violated the Rehabilitation Act by

both refusing him reasonable accommodations related to the adoption of new software platforms

that functioned poorly for those without sight and then retaliating against him. In now moving

for partial dismissal, the Government contends that Mahmoud failed to exhaust his

administrative remedies for certain claims. As the Court agrees, it will grant the Motion and

prune this suit back considerably.

I. Background

Assuming the facts in the Complaint are true, as it must at this stage, the Court begins

with some fundamentals. Mahmoud brought this action against the Library, Librarian Carla

Hayden, and Chief Information Officer Bernard Barton. He has worked at the Library’s Office

of the Chief Information Officer (CIO) since 2010, and he uses a screen reader to access his

computer. See ECF No. 1 (Compl.), ¶ 1. “In 2015, the Library of Congress purchased and

installed a collaboration and sharing platform from a company called Atlassian . . . consisting of

two applications . . . which are not compatible with his screen-reader software.” Id., ¶ 2.

1 Plaintiff subsequently made requests for reasonable accommodations over the years, but they

were all refused. Id., ¶ 4. “In what appears to be a retaliation against plaintiff for not supporting

the organization’s adoption of the Atlassian platform[,] . . . defendants took away plaintiff’s

responsibilities, assigned him to a team in a different building without the necessary tools to

work with his colleagues and left him with very little meaningful work.” Id., ¶ 5. He was

subsequently reassigned to different teams in 2018 and 2020, and he “was deliberately excluded

from team meetings, team training and relevant discussions about Accessability [sic] at the

Library.” Id., ¶ 48. “Plaintiff contends that this [was] due to his outspokenness about the

inaccessibility of the Atlassian platform and his repeated requests for reasonable

accommodations.” Id.

While Mahmoud never delineated specific counts in his Complaint, he explained in a

section entitled “Summary of Violations” that he was relying on the Rehabilitation Act and

alleging that “[t]he Library failed to provide plaintiff with reasonable accommodations on at

least three occasions: in 2016 when the platform was initially installed, in 2018 when he was

reassigned to the QA team, and in 2020 when he was assigned to the UX And Design Team.” Id.

at 13 & ¶ 54. He also alleges that “[s]idelining plaintiff, taking away his duties, disinviting him

from team meetings and excluding him from participating in discussions within his area of

expertise is a direct retaliation for his outspokenness about the inaccessibility of the Atlassian

platform.” Id., ¶ 56.

Defendants now move to dismiss all claims except those related to the 2020 reassignment

for failure to exhaust administrative remedies.

2 II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of proving

that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of

Wildlife,

(1992). A court also has an “affirmative obligation to ensure that it

is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of

Police v. Ashcroft,

(D.D.C. 2001). For this reason, “‘the [p]laintiff’s

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’

than in resolving a 12(b)(6) motion for failure to state a claim.”

at 13–14 (quoting 5A

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)

(alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the

Court “may consider materials outside the pleadings in deciding whether to grant a motion to

dismiss for lack of jurisdiction.” Jerome Stevens Pharm. v. FDA,

(D.C.

Cir. 2005); see also Venetian Casino Resort, LLC v. EEOC,

(D.C. Cir. 2005).

III. Analysis

As Mahmoud asserts claims under the Rehabilitation Act for both failure to provide a

reasonable accommodation and for retaliation, the Court considers each separately.

A. Reasonable Accommodations

In alleging that the Library refused to accommodate him, Plaintiff specifically cites to

three dates: 2016, 2018, and 2020. See Compl., ¶ 54. Defendants now seek dismissal of any

claim related to the first two largely on exhaustion grounds. As a preliminary issue, they

correctly note that Mahmoud cannot even bring a Rehabilitation Act claim against them for any

2016 event because only in 2018 did Congress include Library employees among those who

could sue under that statute. See ECF No. 7 (Def. MTD) (citing Congressional Accountability

3 Act’s amendment in March 2018 to cover Rehabilitation Act claims brought by Library

employees). As Plaintiff is pro se, however, the Court will assume that he meant to sue for that

event under the related Americans with Disabilities Act, which the Government acknowledges

did apply to the Library in 2016. See Haines v. Kerner,

, 520–21 (1972) (where

action brought by pro se plaintiff, court must construe his filings liberally and hold complaint to

“less stringent standards than formal pleadings drafted by lawyers”).

Yet, even so construing his Complaint, Mahmoud is out of luck given his neglect to

exhaust either his 2016 or 2018 reasonable-accommodations complaint. It is clear that the

Congressional Accountability Act, which permits application of the ADA and Rehabilitation Act

to employees of the Library, see

et seq., requires exhaustion as a prerequisite to

bringing suit under either statute. Blackmon-Malloy v. U.S. Capitol Police Board,

(D.C. Cir. 2009). Under the applicable version of the CAA, such exhaustion is satisfied by

engaging in a three-step administrative process that starts with the Office of Congressional

Workplace Rights. See, e.g., Kabakova v. Office of Architect of Capitol,

, at

*7 (D.D.C. Apr. 14, 2020). This process, furthermore, is a jurisdictional prerequisite.

Blackmon-Malloy,

. Dismissal under Rule 12(b)(1) is thus appropriate.

In his Opposition, Plaintiff spends almost all his time explaining why he has sufficiently

articulated the elements of a Rehabilitation Act claim, see ECF No. 12 (Pl. Opp.) at ECF pp. 6-9,

yet that is not in dispute here. The only rejoinder he musters on exhaustion is to state: “Whereas

Defendants view Plaintiff’s complaint as consisting of 3 discrete events in which he requested

(and was denied) reasonable accommodations, Plaintiff argues that the alleged violations

stemmed from a single event which went on for five years – namely the purchase, installation

and dependence on a system known to be incompatible with his screen reader.”

at ECF p. 5.

4 The difficulty with this position is twofold. First, Defendants’ mere installation of a particular

system is not a violation of the Rehabilitation Act, absent a request for reasonable

accommodations. Second, even if he had alleged that the failure to accommodate had not been

limited to three instances and had somehow continued for five years, he would still not be

excused from exhaustion requirements. This is because a “continuing violation” type of claim --

e.g., a claim for a hostile work environment -- is not available here since any decision not to

accommodate is a discrete act that must be separately exhausted. See Koch v. White,

(D.D.C. 2015) (holding that continuing-violation doctrine did not apply to

failure-to-accommodate claims).

Mahmoud may thus proceed only on his 2020 failure-to-accommodate claim, which he

did exhaust.

B. Retaliation

Plaintiff next alleges that Defendants retaliated against him by, for example, sidelining

him from certain projects and excluding him from team meetings. The first flaw in such an

allegation is that, at least according to the Complaint’s “Summary of Violations,” such retaliation

occurred because of “his outspokenness about the inaccessibility of the Atlassian platform.”

Compl., ¶ 56. Yet, that does not constitute a violation of the Rehabilitation Act; on the contrary,

retaliation thereunder occurs only where it responds to protected activity e.g., filing a complaint

about discrimination or seeking a reasonable accommodation. See Solomon v. Vilsack,

(D.C. Cir. 2014) (holding that seeking reasonable accommodation qualifies as protected

activity under Rehabilitation Act).

Once again construing the Complaint more liberally, the Court nonetheless notes that

earlier in that pleading, Plaintiff does attribute the retaliation to “his repeated requests for

5 reasonable accommodations.” Compl., ¶ 48. That would be sufficient. This claim, however,

also founders on the shoals of exhaustion. As this Court has previously explained in a retaliation

case, “Federal employees may file a Title VII or Rehabilitation Act action in federal court only

after exhausting their administrative remedies before the relevant federal agency for each

allegedly discriminatory act.” Mahoney v. Donovan,

(D.D.C. 2011). As

with his claim for failure to accommodate, Mahmoud never contends that he exhausted his

administrative remedies for any retaliation claim prior to 2020. That is thus the only one that

survives.

IV. Conclusion

For the foregoing reasons, the Court will grant the Motion and dismiss all claims

unrelated to Plaintiff’s March 18, 2020, administrative complaint. A separate Order consistent

with this Opinion will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 9, 2021

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