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Porter v. Sebelius

United States District Court, District of Columbia

June 14, 2016

KATHLEEN G. SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendant.



         Pro se plaintiff William Porter ("Plaintiff" or "Porter") brings this action against Kathleen Sebelius in her official capacity as Secretary of the Department of Health and Human Services ("Defendant, " "Employer" or "Secretary").[1] Plaintiff alleges racial discrimination, hostile working environment, failure to grant reasonable accommodations, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; discrimination, failure to provide reasonable accommodation, and hostile work environment in violation of the Federal Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq.; and failure to provide a reasonable accommodation under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.[2]

         This matter is . presently before the Court on Plaintiff's Motion for Summary Judgment filed on June 17, 2014 ("PL's Mot.") [Dkt. No. 95], and Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ("Def.'s Mot.") [Dkt. No. 99] filed on August 28, 28, 2014.

         Upon consideration of the Motions, Oppositions, and Replies, the entire record herein, and for the reasons stated below, Plaintiff's Motion is denied, and Defendant's Motion is granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background

         Porter, an African-American male who states that he suffers from a generalized anxiety disorder, worked as a Program Analyst in the Administration and Finance branch ("A&F") of the Office of Finance, Program, and Analysis in the Office of the Assistant Secretary of Preparedness and Response ("ASPR").Second Am. Compl. ("Compl.") ¶¶ 7, 18 [Dkt. No. 63].

         Porter began his employment at the Department of Health and Human Services ("HHS") in the ASPR in 2007. Def.'s Ex. 1, Porter Dep. at 14 ("Porter Dep.") [Dkt. No. 95]. When the events in question occurred, Porter was working as a GS-14 Program Analyst at the A&F branch of the ASPR. Def.'s Statement of Material Facts (August 28, 2014) at 1 [Dkt. No. 99-4]. His work involved billings for disaster relief provided by the Federal Emergency Management Agency ("FEMA"). Porter Dep. at 17.

         David Dolinsky, Deputy Director of Administration and Finance of ASPR, became Porter's immediate supervisor in August 2009. Id. at 30. Jay Petillo, Director of the Office of Financial Planning and Analysis, was Plaintiff's second level supervisor. Def.'s Ex. 3, Petillo Aff. (March 8, 2012) ¶ 5 ("2012 Petillo Aff.) [Dkt. No. 93-3] .

         Initially, Plaintiff's working relationship with Dolinsky was "fine." Porter Dep. at 32. In fact, in early 2010 Dolinsky approved ' a promotion for Porter and gave him an "exceptional" evaluation for 2009. Def.'s Ex. 4, Petillo Aff. (Oct. 27, 2010) ¶ 14 ("2010 Petillo Aff.") [Dkt. No. 99-3]; Def.'s Ex. 5, Dolinsky Aff. (July 21, 2010) ¶ 11-12 ("2010 Dolinsky Aff.") [Dkt. No. 99-3].

         However, Dolinsky gave Porter an "unacceptable" rating on his quarterly evaluation for the first quarter of 2010. Dolinsky Aff. ¶ 13. Dolinsky stated that the review was justified because, although he had tried,

to mentor and guide Mr. Porter in areas such as interagency payment and collection, Mr. Porter has recently indicated that he will not change the way he does things in spite of my pointing out serious problems. * * * Although I have tried countless times to show Mr. Porter the correct way to do things, he shakes his head and continues to do things the way he wants to.

Id. ¶ 14. See also, Def.'s Ex. 15, Dolinsky Email to Petillo (April 27, 2010) ("April 21, 2010 Petillo Email") [Dkt. No. 99-3] .

         By April 15, 2010, the relationship between Porter and Dolinsky had soured badly. Porter was offended when Dolinsky expressed his opinion that Louis Farrakhan is an anti-Semite and stated that he did not like Jesse Jackson because "he is known to have cheated on his wife and various other things." 2010 Dolinsky Aff. ¶ 21. The following day. Porter initiated the process of filing an Equal Employment Opportunity ("EEO") Complaint. Pi.'s Ex. 7, Porter Email (April 16, 2010) ("April 16, 2010 Porter Email") [Dkt. No. 99-3] . On May 24, 2019, Porter officially filed an EEO Complaint against Dolinsky. Def.'s Ex. 7, EEO Complaint ("EEO Complaint") [Dkt. No. 99-3].

         In a series of emails. Porter complained that he was being harassed by Dolinksy forcing him to remain in his office at all times, by not being assigned any work, and by the way Dolinsky treated him. See e.g., Def.'s Ex. 6, Porter Email to Petillo (April 23, 2010) ("April 23, 2010 Porter Email") [Dkt. No. 99-3]; Def.'s Ex. 8, Porter Email to Dolinsky (May 11, 2010) ("May 11, 2010 Porter Email") [Dkt. No. 99-3]; Def.'s Ex. 9, Porter Email to Dolinsky (May 13, 2010) ("May 13, 2010 Porter Email") [Dkt. No. 99-3] . Porter stated that the alleged harassment was causing him to have panic attacks. Id.

         As a result. Porter asked to be reassigned and relocated to another building in order to avoid contact with Dolinsky, and to be supervised by Petillo instead of Dolinsky. April 23, 2010 Porter Email. HHS denied this request after determining that Plaintiff was not entitled to a reasonable accommodation since his condition was not a disability under the Rehabilitation Act or the ADA. Def.'s Ex. 14, HHS Mem. (Aug. 6, 2010) ("2010 HHS Mem.") [Dkt. No. 99-3]. Petillo denied a similar, informal request from Porter, stating that he did not think a transfer was in the best interest of the agency and, therefore, could not approve the transfer. Def.'s Ex. 17, Petillo Email to Porter (April 26, 2010) ("April 26, 2010 Petillo Email") [Dkt. No. 99-3].

         B. Procedural Background

         On May 24, 2010, Plaintiff filed an EEO complaint with the EEO section of the Department of Health and Human Services. EEO Complaint. He subsequently filed six amended complaints, the last on December 22, 2010. EEO Complaint Final Decision (June 3, 2011) at 2 n.l [Dkt. No. 13-1] . On June 3, 2011, the agency issued its Final Decision rejecting Plaintiff's claim. Id.

         On August 26, 2011, Porter filed a Complaint [Dkt. No. 1] in this Court seeking review of the June 2011 Final Decision. On May 23, 2013, Plaintiff filed a Second Amended Complaint, which is now the operative Complaint in this action. Compl.

         On June 17, 2014, Plaintiff filed his Motion for Summary Judgment. On August 28, 2014, Defendant filed her Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. On September 29, 2014, Plaintiff filed an Opposition to Defendant's Cross-Motion for Summary Judgment and Reply in Support for his Motion for Summary Judgment ("PL's 0pp. and Reply") [Dkt. No. 101]. On October 27, 2014, Defendant filed her Reply in Support of her Motion for Summary Judgment ("Def.'s Reply") [Dkt. No. 106]. The Motions are now ripe for review.


         Summary judgment may be granted only if the pleadings, the discovery materials, and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). "A dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Arrington, 473 F.3d at 333 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it might affect the outcome of the case under the substantive governing law. Liberty Lobby, 477 U.S. at 248. In reviewing the evidence on a motion ...

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