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Welch v. Skorton

United States District Court, District of Columbia

March 22, 2018

JEMMIE L. WELCH, Plaintiff,
DAVID J. SKORTON, Secretary, Smithsonian Institution, Defendant.


          RUDOLPH CONTRERAS United States District Judge

         Granting Defendant's Motion for Summary Judgment


         Plaintiff 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.


         Plaintiff 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.

         Mr. 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.

         The 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.

         Mr. 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.

         Second, 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.

         As a 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.[1] 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.


         A. Rehabilitation Act

         “The 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; ...

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