United States District Court, District of Columbia
JEMMIE L. WELCH, Plaintiff,
JOSEPH POWELL, et al., Defendants.
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
RUDOLPH CONTRERAS United States District Judge.
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.
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. 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.
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.
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.
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.
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
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)).
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 ...