United States District Court, District of Columbia
JEMMIE L. WELCH, Plaintiff,
DAVID J. SKORTON, Secretary, Smithsonian Institution, Defendant.
RUDOLPH CONTRERAS United States District Judge
Defendant's Motion for Summary Judgment
Jemmie L. Welch, an employee of the Smithsonian Institution
(“Smithsonian”), brings this action against
Defendant David. J. Skorton, the Secretary of the
Smithsonian. Mr. Welch alleges that the Smithsonian failed to
accommodate his disability, intentionally discriminated
against him on the basis of disability, retaliated against
him after he filed Equal Employment Opportunity
(“EEO”) complaints, and subjected him to a
hostile work environment, all in violation of the
Rehabilitation Act. The Smithsonian moves for summary
judgment, asserting that no reasonable jury could find that
it refused Mr. Welch's request for an accommodation; that
Plaintiff did not suffer any adverse employment action to
support his claims of retaliation and disability
discrimination; that the Smithsonian had legitimate,
non-discriminatory and non-retaliatory reasons for any
alleged action that might be construed as adverse and Mr.
Welch has failed to rebut those explanations; and that the
conduct Mr. Welch alleges is not sufficiently severe or
pervasive to rise to the level of a legally cognizable
hostile work environment claim. For the reasons set forth
below, the Court grants Defendant's motion.
Jemmie L. Welch began working at the Smithsonian
Institution's Office of Protection Services in October
2008. Def.'s Statement of Undisputed Material Facts
(“Def.'s SUMF”) ¶ 1, ECF No. 24;
Pl.'s Resp. to Def.'s Mot. for Summ. J.
(“Opp'n to MSJ”) at 2, ECF No. 25. In
February 2010, Mr. Welch was diagnosed with diabetes.
Opp'n to MSJ at 2. 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. Def.'s SUMF ¶ 5. Specifically,
the Smithsonian and Mr. Welch agreed that he would take
breaks at 10:00 a.m., 12:00 p.m., and 2:00 p.m., barring an
emergency. Decision of Accommodation Request (Dec. 28, 2010),
Ex. C, ECF No. 24-1; Email from Carlos Davila to Joseph
Powell (Sept. 30, 2015), Ex. D, ECF No. 24-1.
Welch alleges that on March 9, 2015, Sergeant Joseph Powell,
Mr. Welch's first-line supervisor, did not relieve Mr.
Welch at 2:00 p.m. so that he could take his scheduled break.
Compl. at 4, ECF No. 1. Mr. Welch phoned Sgt. Powell around
either 2:30 p.m. or 2:40 p.m. to ask why he had not yet
received his scheduled break. Aff. of Jemmie L. Welch
(“Welch Aff.”) at 3, Ex. A, ECF No. 24-1
(asserting that he called Sgt. Powell “after 2:40
p.m.”); Dep. of Joseph A. Powell (“Powell
Dep.”) 44:18-24, Ex. F, ECF No. 24-1 (asserting that
Mr. Welch called at “about 2:30 p.m.” to request
his last break). Sgt. Powell told Mr. Welch that he had
simply forgotten to relieve him of his post, as he had been
distracted by other tasks. Welch Aff. at 3; Powell Dep.
45:2-10. Shortly after the phone call, Mr. Powell sent
someone to relieve Mr. Welch, and Mr. Welch received his
break at approximately 2:45 p.m. Compl. at 4. During the
nearly 45 minutes that Mr. Welch was forced to wait to
address his health condition, he contends that he urinated
himself. Compl. at 4.
next day, Mr. Welch complained to Carol Gover, the
Affirmative Employment Program Manager at the
Smithsonian's Office of Equal Employment and Minority
Affairs, and to Sergeant Carlos Davila, Mr. Welch's Unit
Supervisor. Email from Jemmie Welch to Carol Gover &
Carlos Davila (Mar. 10, 2015), Ex. G, ECF No. 24-1. In his
message, Mr. Welch contended that Sgt. Powell had failed to
timely release him for his breaks on other occasions.
Id. In response to Mr. Welch's email, Ms. Gover
recommended that Mr. Welch contact his supervisor within
fifteen minutes of any missed break. Email from Carol Gover
to Jemmie Welch (Mar. 10, 2015), Ex. G. In addition, Ms.
Gover forwarded Mr. Welch's message to Larry Carpenter, a
Security Manager, who promised to “do everything
possible to ensure that [O]fficer Welch receives his official
breaks on time.” Email from Larry Carpenter (Mar. 18,
2015), Ex. G. Mr. Carpenter explained that he had instructed
each supervisor to notify him by email each day to confirm
that Mr. Welch had received his scheduled breaks.
Id.; see also Email from Larry Carpenter
(Mar. 10, 2015), Ex. E.
Welch claims that Sgt. Powell retaliated against him for
contacting his supervisor and Ms. Gover to file an EEO
complaint. Compl. at 5. Mr. Welch alleges that Sgt.
Powell's retaliatory conduct consisted of unfairly
singling him out on two separate occasions. First, Mr. Welch
claims that, on March 12, 2015, during a roll call at which
five other officers were present, Sgt. Powell informed the
other officers that Mr. Welch had filed an EEO complaint
against Sgt. Powell. Compl. at 5-6. Sgt. Powell then
requested that Mr. Welch to e-mail him after each of his
breaks to confirm that he had received the requested breaks.
Compl. at 5-6; see Powell Dep. 96:24-98:12. Sgt.
Powell contends that he was later instructed by his
supervisors that it was his responsibility to email to
confirm that Mr. Welch had received his scheduled breaks.
Thus, Mr. Welch only emailed to confirm that he received
breaks on March 12, 2015. See Powell Dep. 98:5-12.
Mr. Welch claims that, on March 23, 2015, Sgt. Powell singled
him out for criticism. That day, Mr. Welch was assigned to a
post on the loading dock, but he briefly left his post to
relieve another officer who needed an emergency bathroom
break. Compl. at 7-8. Sgt. Powell called Mr. Welch back to
his post on the loading dock and blamed him for a door being
left open at the site. Compl. at 8-9. Mr. Welch contends that
this criticism was unfair because he did not know that the
door on the loading dock had been left ajar because he had
stepped away to relieve another officer. Compl. at 8-9.
result of these incidents, Mr. Welch filed the present suit
in March 2015. See Compl. Mr. Welch's complaint
alleges that Defendant violated the Rehabilitation Act, 29
U.S.C. § 791, and it also asserts 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. In an earlier
Memorandum Opinion, this Court granted Defendant's motion
to dismiss all claims except those alleging violations of the
Rehabilitation Act. See Welch v. Powell, No. 16-509,
2016 WL 6806211, at *5 (D.D.C. Nov. 17, 2016) (finding
Plaintiff's common-law tort and contract claims preempted
by the Rehabilitation Act). Defendant now moves for summary
judgment on Plaintiff's remaining claims.
Rehabilitation Act prohibits federal agencies from engaging
in employment discrimination against disabled
individuals.” Nurridden v. Bolden, 818 F.3d
751, 756 (D.C. Cir. 2016); see also Taylor v. Small,
350 F.3d 1286, 1291 (D.C. Cir. 2003) (explaining the
statutory provision of the Act under which an employee of the
Smithsonian may assert a violation). When courts evaluate
whether the federal government has satisfied its obligations
under the Rehabilitation Act, they apply the standards of the
Americans with Disabilities Act of 1990 (“ADA”).
42 U.S.C. § 12101; see also Minter v. District of
Columbia, 809 F.3d 66, 69 (D.C. Cir. 2015) (explaining
that the Rehabilitation Act incorporates the standards used
to evaluate ADA claims). “[T]he Rehabilitation Act
requires federal employers to make ‘reasonable
accommodations to the known physical or mental limitations of
an otherwise qualified individual with a
disability.'” Solomon v. Vilsack, 763 F.3d
1, 5 (D.C. Cir. 2014). The Act also prohibits
“retaliation against or coercion of individuals who
seek to vindicate the rights guaranteed by the
statute.” Id. (citing 42 U.S.C. §§
12203(a)-(b)). “[T]he Rehabilitation Act (like the ADA)
bars several different types of discrimination: failure to
accommodate; intentional discrimination, also known as
‘disparate treatment' discrimination; retaliation;
disparate impact discrimination; ...