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Welch v. Powell

United States District Court, District of Columbia

November 17, 2016

JEMMIE L. WELCH, Plaintiff,
v.
JOSEPH POWELL, et al., Defendants.

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          RUDOLPH CONTRERAS United States District Judge.

         I. INTRODUCTION

         Two years ago, Jemmie Welch brought a suit before Judge Chutkan in this District against his employers raising a myriad of common-law tort and contract claims in addition to a claim under the Rehabilitation Act, after his employers allegedly deprived him of a scheduled break. That court dismissed his common-law claims because they were preempted by the Rehabilitation Act. Now, with slightly different facts, he makes the exact same common-law claims, recited in a virtually-verbatim complaint. Mr. Welch also alleges that he was legally entitled to a break as an accommodation for his condition as a diabetic, and that the deprivation by his employer-the Smithsonian's Office of Protection Services-was a violation of § 501 of the Federal Rehabilitation Act of 1973. Mr. Welch further claims that his supervisor unlawfully retaliated against him when he reported his first-line supervisor to his Unit Supervisor for failing to accommodate Mr. Welch's condition. After withdrawing the bulk of their Motion to Dismiss, in effect agreeing with Plaintiff that the Court has subject-matter jurisdiction, Defendants' sole remaining arguments for dismissal concern Mr. Welch's common-law tort and contract claims. Defendants specifically argue that those claims are preempted by the Rehabilitation Act, and that, in the alternative, the tort claims have not been exhausted as required under the Federal Tort Claims Act. After a sua sponte determination that the Court has subject-matter jurisdiction over the case, the Court concludes that Mr. Welch's common-law claims are indeed preempted by the Rehabilitation Act because they arise out of the same nucleus of facts. Accordingly, the Court dismisses all the tort and contract claims in the Complaint.[1]

         II. FACTUAL BACKGROUND

         Plaintiff Jemmie L. Welch began working at the Smithsonian's Office of Protection Services (OPS) in October 2008. Compl., at 3, ECF No. 1. In February 2010, Mr. Welch was diagnosed with diabetes. See Id. The Smithsonian's Office of Equal Employment and Minority Affairs granted Mr. Welch accommodations in the form of regular breaks to monitor and control his diabetes. See Id. at 6-7. Mr. Welch alleges that on March 9, 2015, Sergeant Joseph Powell, Mr. Welch's first-line supervisor, did not provide Mr. Welch his scheduled 2:00 p.m. break until 2:45 p.m. See Id. at 4. During the 45 minutes Mr. Welch was forced to wait to address his health condition, he urinated himself. See Id. Mr. Welch later contacted Sgt. Powell for an explanation. See Id. Sgt. Powell told him that he had simply forgotten to relieve him of his post so that he could take a break. See Id. Mr. Welch then filed a complaint with Sergeant Carlos Davila, Mr. Welch's Unit Supervisor, who contacted Carol Gover, the Affirmative Employment Program Manager at the Smithsonian's Office of Equal Employment and Minority Affairs.[2] See Id. at 5. Mr. Welch claims that Sgt. Powell retaliated against him for contacting his supervisor and Ms. Gover to file an Equal Employment Opportunity (“EEO”) complaint. See Id. Mr. Welch alleges that Sgt. Powell's retaliatory conduct consisted of unfairly singling him out on two separate occasions. First, Mr. Welch claims that, in front of other officers, Sgt. Powell requested for Mr. Welch to e-mail him after each of his breaks to confirm that he had received the requested breaks. See Id. at 6. Second, Mr. Welch claims that Sgt. Powell unfairly blamed him for a door being left open near Mr. Welch's post while he was actually filling in for an officer on a different post who needed an emergency bathroom break. See Id. at 7-8. As a result of these incidents, Mr. Welch contacted an EEO counselor to begin informal counseling about the incidents. See Defs.' Mem. P. & A. Supp. Defs.' Mot. to Dismiss (“Defs.' Mot. to Dismiss”), at 3, ECF No. 3. Mr. Welch filed a formal EEO complaint on May 6, 2015, and an amended complaint on May 16, 2015. Mem. P. & A. Supp. Pl.'s Resp. Defs.' Mot. for Summ. J. (“Pl.'s Resp.”), at 3, ECF No. 7. Defendants concede that Mr. Welch “followed proper procedures” up to the time he filed the Complaint with the Court. See Defs.' Mot. to Dismiss, at 5. On March 15, 2016, Mr. Welch brought this suit against Powell, Anita Montgomery, Jeann O'Toole in both her individual and official capacities (Director of the OPS), and the Smithsonian Institution (collectively, the “Defendants”). See generally Defs.' Mot. to Dismiss.

         III. PROCEDURAL BACKGROUND

         When Mr. Welch brought this suit, he also had a complaint pending before the Equal Employment Opportunity Commission (EEOC) stemming from the same incidents at issue in this case. See Defs.' Mot. to Dismiss, at 3-4. The Complaint includes an allegation against the Defendants under Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, and common-law tort and contract claims for “breach of Reasonable Accommodations, . . . tort[i]ous interference with written and agreed upon accommodation, for intentional infliction of emotional distress, [and] for negligent infliction of emotional distress.” Compl., at 1-2.

         Defendants originally moved to dismiss for lack of subject-matter jurisdiction based on an alleged failure to exhaust administrative remedies and for failure to state a claim on preemption grounds, but have since withdrawn their Motion to Dismiss for lack of subject-matter jurisdiction. See generally Defs.' Mot. to Dismiss; see Notice of Dismissal of Pl.'s Pending EEOC Compl. (“Notice of Dismissal”), ECF No. 10. Defendants' jurisdictional argument was that Mr. Welch failed to exhaust his administrative remedies as required under § 501 of the Rehabilitation Act. See Defs.' Mot. to Dismiss, at 5-6. Defendants still argue that Mr. Welch's tort and contract claims should be dismissed on preemption grounds because those claims stem from the same nucleus of facts as the Rehabilitation Act claim, and the Rehabilitation Act is the exclusive remedy for federal employees alleging disability discrimination. See Id. at 6-7. In the alternative, should the Rehabilitation Act not preempt the tort and contract claims, Defendants argue that the tort claims should be dismissed because the Federal Tort Claims Act requires exhaustion of administrative remedies prior to filing suit. Id.

         After Defendants filed their Motion to Dismiss, Mr. Welch filed a Notice of Voluntary Dismissal Without Prejudice with the EEOC. See Notice of Dismissal. The EEOC dismissed the complaint pursuant to 29 C.F.R. §§ 1614.109(b) and 1614.107(a)(3). See id.; Notice of Dismissal Ex. A, at 1, ECF No. 10-1. Defendants now limit their Motion to Dismiss to Mr. Welch's failure to state a claim upon which relief can be granted. See Notice of Dismissal. The Court now grants Defendants' Motion in part, dismissing all claims except those alleging violations of the Rehabilitation Act.[3]

         IV. ANALYSIS

         After withdrawing their arguments concerning failure to exhaust under the Rehabilitation Act, Defendants seek dismissal on two remaining grounds. First, Defendants argue that Mr. Welch's tort and contract claims are preempted by his Rehabilitation Act claims because they stem from the same set of events and the Rehabilitation Act “is the exclusive remedy for federal employees alleging disability discrimination.” See Defs.' Mot. to Dismiss, at 6 (quoting Welsh v. Hagler, 83 F.Supp.3d 212, 222 (D.D.C. 2015)). Second, Defendants argue that the common-law tort claims should be dismissed because Mr. Welch has failed to exhaust administrative remedies as required under the Federal Tort Claims Act. See Id. at 7. Because the Court dismisses all of Mr. Welch's common-law tort and contract claims under the first argument, it need not address the second. But before addressing Defendants' remaining arguments, the Court will address the issue of subject-matter jurisdiction.

         A. Subject-Matter Jurisdiction

         Following the dismissal of Mr. Welch's complaint pending before the EEOC, Defendants limited their Motion to Dismiss to their argument that Mr. Welch fails to state a claim upon which relief can be granted. See Notice of Dismissal. But because it is imperative for the Court to ensure that it has subject matter jurisdiction at all times and over all claims, NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), the Court will sua sponte address the issue of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Federal courts “possess only that power authorized by [the] Constitution and statute . . . .” Kokkonen, 511 U.S. at 377. Congress has the “prerogative to restrict the subject-matter jurisdiction of federal district courts.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515 n.11 (2006). Because subject-matter jurisdiction concerns the Court's ability to adjudicate the case before it, the issue may be raised sua sponte. NetworkIP, LLC, 548 F.3d at 120. “Indeed, we must raise it, because . . . we are forbidden-as a court of limited jurisdiction-from acting beyond our authority.” Id. When considering whether it has jurisdiction, a court must accept the well-pleaded factual allegations of the complaint as true. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

         Congress has precluded federal jurisdiction over Rehabilitation Act claims prior to the exhaustion of administrative remedies. See Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015); Barkley v. U.S. Marshals Serv., 766 F.3d 25, 33 (D.C. Cir. 2014); see also 29 U.S.C. § 794(a)(1). A plaintiff's failure to exhaust administrative remedies-either by not filing a complaint with the agency or not receiving a final action on a complaint-prohibits a district court from hearing that party's claim for lack of subject matter jurisdiction. See Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006); see also Doak, 798 F.3d at 1103-04. Under the Rehabilitation Act, a plaintiff has not exhausted administrative remedies if he made a “wholesale failure to file an administrative complaint or to obtain any administrative decision at all.” Doak, 798 F.3d at 1103. There is a limited statutory exception to the exhaustion of remedies requirement: once an employee has filed his complaint with the agency or department and 180 days have passed since that filing, an employee may file a suit in district court if the employee is “aggrieved by . . . the failure to take final action on his complaint.” 42 U.S.C. § 2000e-16(c) (emphasis added); see Rehabilitation Act, 29 U.S.C. § 794a(a)(1) (making remedies outlined in § 2000e-16 available to federal employees who allege Rehabilitation Act violations); Doak, 798 F.3d at 1100. If he is so aggrieved, “at the end of the 180 day period the employee is ...


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