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Welsh v. Hagler

United States District Court, D. Columbia.

March 18, 2015

JEMMIE L. WELSH, Plaintiff,
ROBIN HAGLER et al., Defendants

For Jemmie L. Welsh, Plaintiff: OlaDipo A. Akin-Deko, LEAD ATTORNEY, AKIN-DEKO PROFESSIONAL SERVICES FIRM PLLC, Alexandria, VA USA.

For Robin Hagler, Smithsonian Institution, Peter Mroczkewicz, Individually and in his official capacity as deputy director of office of protection services, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.


TANYA S. CHUTKAN, United States District Judge.

Plaintiff Jemmie Welch[1] sued the Smithsonian and two of its employees for failure to reasonably accommodate his diabetes. Before the Court is Defendants' motion to dismiss. Because Welch failed to exhaust his administrative remedies or initiate the administrative process, the motion to dismiss is granted.


The Complaint alleges the following facts, which will be assumed to be true for purposes of the motion to dismiss. Plaintiff has been a security officer for the Smithsonian Institution since October 2008. (Compl. ¶ 5). Welch was diagnosed with diabetes in February 2010, and notified his manager. ( Id.). After suffering some type of adverse action related to his medical condition in June 2010, Welch contacted Carol Gover, the accommodations coordinator for the Smithsonian Office of Equal Employment and Minority Affairs (" OEEMA" ), to complain about his work conditions and request a reasonable accommodation. He received an approved reasonable accommodation in December 2010. ( Id.).

Shortly after Welch received his approved accommodation, the Smithsonian transferred him to a different location (the " Pennsy Drive unit" in the " Suitland Zone" ). ( Id. ¶ 6). After the transfer, Welch alleges he suffered five separate violations of his accommodation, four of which occurred under the supervision of Defendant Sgt. Robin Hagler. Welch claims that he filed complaints regarding each alleged violation, although it is unclear where and with whom these complaints were filed. ( Id.). As a result of these incidents, Welch filed the instant Complaint on January 31, 2014 against Hagler, Peter Mroczkewicz (the deputy director of the Office of Protective Service (" OPS" )), and the Smithsonian Institution (collectively, the " Defendants" ),[2] alleging violations of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq. Welch also appears to bring a variety of other common law claims, although they all arise out of Defendants' alleged interference with his reasonable accommodation. ( Id. ¶ 7).


In evaluating a motion to dismiss under Rule 12(b)(1), the Court must " assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972, 364 U.S.App.D.C. 326 (D.C. Cir. 2005)). 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 plaintiff's legal conclusions.'" Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)).

Under Rule 12(b)(1), the court " is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241, 251 U.S.App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992)).


a. Reasonable Accommodation

As a threshold matter, Defendants argue that Welch's claims are improper because they are brought solely pursuant to the ADA, which does not apply to federal employees. Defendants assert that Welch should have brought his disability claims under Section 501 of the Rehabilitation Act, which provides a cause of action for federal employees to challenge disability discrimination. See 29 U.S.C. § 791(b). The Court finds that because " [c]ourts must construe pro se filings liberally," [3]Richardson v. United States, 193 F.3d 545, 548, 338 U.S.App.D.C. 265 (D.C. Cir. 1999), because Welch would likely be granted leave to amend the Complaint, and because the Defendants will not be prejudiced by reading the ...

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