United States District Court, District of Columbia
KESSLER UNITED STATES DISTRICT JUDGE.
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"). 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
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.
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.
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].
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.
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.
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].
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] .
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].
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.
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.
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
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.
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
STANDARD OF REVIEW
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 ...