UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEMMIE L. WELCH, : : Plaintiff, : Civil Action No.: 16-0509 (RC) : v. : Re Document No.: 3 : JOSEPH POWELL, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

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.

1 Because Mr. Welch does not enumerate individual counts in his Complaint, the Court will refer to all those claims not claiming relief under the Rehabilitation Act simply as Mr. Welch’s tort and contract claims. 2 The Court notes that the Complaint alleges conflicting dates (March 9, 10, and 12) for when Welch contacted Ms. Gover about the March 9 incident. Additionally, the Complaint is

2 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

unclear about who Mr. Welch contacted to complain about Sgt. Powell not allowing Mr. Welch to take his breaks. These discrepancies have no bearing on the outcome.

3 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,

, 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

(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

4 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,

(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.

3 Moreover, because Rehabilitation Act claims may only be brought against the heads of agencies in their official capacities, the Court will dismiss the claims against all the named defendants and substitute David J. Skorton, in his official capacity as Secretary of the Smithsonian Institution, as the sole defendant in this case. See Di Lella v. Univ. of D.C. David A. Clarke Sch. of Law,

, 7 n.8 (D.D.C. 2008) (“[T]here is no individual liability under the ADA or the Rehabilitation Act.”); Richardson v. Yellen,

(D.D.C. 2016) (“[O]nly the heads of federal agencies in their official capacity may be sued, not their individual employees.”); see also Welsh v. Hagler,

, 216 n.2 (D.D.C. 2015) (noting that Defendant Jemmie Welch “should have named the Secretary of the Smithsonian Institution as the sole defendant, not the Smithsonian and two of its employees”).

5 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,

(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,

(2004) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)); see also Gen. Motors

Corp. v. EPA,

(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,

. Congress has the

“prerogative to restrict the subject-matter jurisdiction of federal district courts.” Arbaugh v. Y&H

Corp.,

, 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,

. “Indeed, we must raise it, because . . . we are forbidden—as a court of limited

jurisdiction—from acting beyond our authority.”

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,

(D.C. Cir. 2015) (citing Herbert v.

Nat’l Acad. of Scis.,

(D.C. Cir. 1992)).

Congress has precluded federal jurisdiction over Rehabilitation Act claims prior to the

exhaustion of administrative remedies. See Doak v. Johnson,

(D.C. Cir.

2015); Barkley v. U.S. Marshals Serv.,

(D.C. Cir. 2014); see also 29 U.S.C.

6 § 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,

(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,

. 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,

. If he is so aggrieved, “at the end of the 180 day period the employee is entitled to

sue, regardless of the pendency of EEOC proceedings.” Waiters v. Parsons,

(3d Cir. 1984); accord Augustus v. Locke,

(D.D.C. 2010); see also

Ramsey v. Moniz,

(D.D.C. 2014) (finding subject-matter jurisdiction despite

the plaintiff’s failure to withdraw his administrative complaint until after filing his district court

complaint).

The Court raises subject-matter jurisdiction sua sponte because another court in this

District recently referenced a district split on the question of whether an employee is “aggrieved”

when he voluntarily withdraws his administrative complaint at least 180 days after filing it. See

Ramsey v. Moniz, 75 F. Supp. 3d at 43–44 (collecting cases). The Court concludes that a party

can still be “aggrieved” after voluntarily withdrawing an administrative complaint when 180

7 days have passed since the party filed the complaint with the agency, so long as that party acted

in good-faith with the administrative process.

In Ramsey, the court considered whether an employee who filed a discrimination action

against the Department of Energy had exhausted her administrative remedies under the

Rehabilitation Act.

. That employee, like Mr. Welch, participated in the administrative

process and requested an administrative hearing after the completion of the investigation

resulting from her complaint. See

. Following several discovery requests and stays as a

part of her administrative hearing, the party voluntarily withdrew from the administrative

proceeding to pursue her claims in federal court. See

The Ramsey court suggested that there

was disagreement in this district over whether a person who voluntarily withdrew his complaint

had exhausted administrative remedies as required under the Rehabilitation Act. See

at 42–44.

That court found that McRae v. Librarian of Congress,

(D.C. Cir. 1988) (per

curiam), which held that a “good[-]faith refusal to pursue [an administrative] hearing” should not

bar a plaintiff from pursuing action in the federal courts, McRae,

, was

controlling precedent in that case. Ramsey, 75 F. Supp. 3d at 45–46. The Ramsey court applied

McRae’s “good-faith” reasoning to the case before it and found that when a plaintiff cooperates

with administrative procedures for more than 180 days, voluntary withdrawal from

administrative proceedings does not bar a person from filing suit in federal court because of a

failure to exhaust administrative remedies. See id. at 46.

The Court agrees with the Ramsey court’s holding—that a person who has cooperated

with the administrative process in good-faith for more than 180 days after that person filed his

complaint is not precluded from bringing a suit in federal court—for three reasons. First, in

addition to McCrae, there is other D.C. Circuit precedent on point suggesting that a voluntary

8 withdrawal from the administrative process, without more, does not bar a plaintiff from judicial

remedies. In Wilson v. Pena, the court found that the “exhaustion requirement is a practical and

pragmatic [requirement] and should not be invoked when it serves no practical purpose.”

(D.C. Cir. 1996) (internal quotations omitted) (quoting Brown v. Marsh,

,

16–17 (D.C. Cir. 1985)). The court went on to hold that the doctrine serves no practical or

pragmatic purpose unless that failure prevents the agency from acting on the merits of the

complaint. See

Taken together, McRae and Wilson establish that a plaintiff is not barred from

filing a Rehabilitation Act claim in federal court for failure to exhaust if he acts in good faith

during the 180 days after filing his administrative complaint and does not prevent the agency

from making a decision on the merits of the complaint.

Second, other courts in this District have rejected the only case suggesting that voluntary

dismissal precludes judicial review.4 In Wiley v. Johnson, the court reasoned that an EPA

employee failed to exhaust administrative remedies because he voluntarily withdrew from the

administrative process, even though his complaint had been pending for more than a year and the

employee had complied with the administrative process. See

, 93–95 (D.D.C.

2006). Five years later in Payne v. Locke, a D.C. District Court reasoned that the Wiley court

4 The Ramsey court cited Smith v. Koplan,

(D.D.C. 2005), as another example of where this district held that a voluntary withdrawal precluded a plaintiff from filing a claim in federal court for failure to exhaust administrative remedies. Ramsey,

. That case does not apply to the facts here. In Smith, the plaintiff “abandoned” the administrative proceedings more than a year after filing her administrative complaint and then filed suit in federal court. See

. In this case, Welch voluntarily withdrew from the proceedings after filing suit in federal court. See Notice of Dismissal Ex. A. The regulations that govern these proceedings treat the two situations differently. Compare

(a)(3), with § 1614.108(a)(7). Additionally, in Smith, the court’s decision relied in part on the fact that the plaintiff had failed to respond to discovery requests preventing the agency from making a decision on the merits. See

. That analysis is consistent with both Wilson and this court’s decision.

9 failed to consider the plain language of the relevant statute and regulations, and accordingly

reached the wrong result. See

(D.D.C. 2011); see also 42 U.S.C.

§ 2000e-16(c);

. Rather than follow Wiley, the Payne court held that a

complainant could file suit in federal court even after voluntarily withdrawing from

administrative proceedings. Payne,

. Now, this opinion is yet another on a

growing list of decisions that have declined to follow Wiley. See Ramsey, 75 F. Supp. 3d at 44–

45; Payne,

; Augustus v. Locke,

, 70–72 (D.D.C. 2010);

Laudadio v. Johanns,

, 600–02 (E.D.N.Y 2010).

Third, holding that a good-faith voluntary withdrawal from administrative proceedings

precludes judicial review could leave parties to indefinitely-delayed administrative proceedings

without recourse. This would fly in the face of the notion that prompt access to courts in cases of

discrimination “is so important that the administrative process will be given only a finite time to

deal alone with a given dispute.” See Wilson,

(quoting Grubbs v. Butz,

(D.C. Cir. 1975) (quoting Hackley v. Johnson,

(D.D.C.

1973))).

Mr. Welch waited 314 days to file suit with the Court after filing his initial charge. He

has also fully complied with the administrative procedures. See generally Pl.’s Resp. There is no

indication that he acted in bad-faith during the immediate 180 days after filing his complaint, nor

that he prevented the agency from making a decision on the merits. Thus, regardless of the status

of his administrative complaint, he was aggrieved by the agency’s failure to take final action on

his complaint when he filed the Complaint in this case. Accordingly, Plaintiff has sufficiently

exhausted his administrative remedies as required under the Rehabilitation Act, and the Court

has subject-matter jurisdiction.

10 B. Failure to State a Claim Upon Which Relief May be Granted Defendant moves to dismiss on the grounds that Plaintiff’s common-law tort and contract

claims are preempted by the Rehabilitation Act’s remedies, citing Welsh v. Hagler,

(D.D.C. 2015). 5 “[T]he Rehabilitation Act is the exclusive remedy for federal employees

alleging disability discrimination.” Welsh,

(citing Paegle v. Dep’t of

Interior,

(D.D.C. 1993) (“We agree that when a federal employee seeks to

redress rights guaranteed by the Rehabilitation Act, that Act preempts other actions to redress the

same discrimination.”)); see Shirey v. Devine,

, 1191 n.7 (D.C. Cir. 1982) (noting

that the incorporation of 42 U.S.C. § 2000e-16 “into the Rehabilitation Act provides a strong

argument that statutory remedies” are the exclusive remedies available for disability

discrimination of federal employees); cf. Brown v. GSA,

(1976) (holding that

§ 717 of the Civil Rights Act of 1964, which includes 42 U.S.C. § 2000e-16, “provides the

exclusive judicial remedy for claims of discrimination in federal employment”). Parties cannot

simply “rename Rehabilitation Act claims as tort claims.” Welsh,

. To

determine whether claims are preempted by the Rehabilitation Act, courts must determine

whether the party is “seek[ing] to redress the violation of rights guaranteed by the[se] statute[s].”

Davis v. Passman,

, 247 n.26 (1979). In Welsh, the very same plaintiff as the case at

bar filed an Americans with Disabilities Act claim—which the court construed as a

Rehabilitation Act claim—against his employer for failure to accommodate his condition as a

diabetic. See 83 F. Supp. 3d at 216–17. He also made “a variety of other common law claims,

5 As Defendants note, the plaintiff in Welsh was Mr. Jemmie Welch, the plaintiff here. The caption of the 2014 case incorrectly spells his last name “Welsh,” but the rest of the opinion correctly refers to him as Jemmie Welch. See Welsh, 83 F. Supp. at 215 (“The caption in this case lists Plaintiff's last name as ‘Welsh,’ but it appears based on the briefing that his last name is actually ‘Welch.’”).

11 although they all ar[o]se out of [the d]efendants’ alleged interference with his reasonable

accommodation.” See id. at 216. The court dismissed his common-law claims because they all

arose from the same factual allegations—“that the [d]efendants denied Welch his reasonable

accommodation.” See id. at 222.

In this case, as in the last, Mr. Welch also makes a variety of common-law tort and

contract claims. But the parallels between the cases go far beyond mere similarities. The

Complaint that Mr. Welch filed in the case at bar contains a section where he states all the legal

bases for his claims, including a plethora of accusations against Defendants peppered with tort

and contract vocabulary. See Compl., at 10. With the exception of some name changes and verb

conjugations, Mr. Welch’s 2014 complaint is word-for-word identical. Compare Compl. with

Complaint at 4–5, Welsh v. Hagler,

(2014) (No. 14-0153), ECF No. 1. To use

the most identifiable legal claims as examples, Mr. Welch claimed in both cases that

“Defendants’ tort[i]ous actions toward Plaintiff were intentional and caused severe emotional

distress,” “Defendants’ failure to comply with terms and conditions of its obligations under the

accommodation . . . constituted a breach of the terms of this accommodation,” “Defendants’

actions caused [him] to suffer mental and emotional distress,” and “[a] contractual relationship

existed between Plaintiff and Defendant” that was breached. See Compl., at 10; Complaint at 4–

5, Welsh v. Hagler,

(2014) (No. 14-0153), ECF No. 1. The uniting theme of

this myriad of common-law claims is Defendants’ alleged failure to accommodate his condition

under the Rehabilitation Act. To the extent that there is a succinct claim in tort, it is for

“tort[i]ous interference with written and agreed upon accommodation.” Compl., at 1. This, like

his complaint in the 2014 case, is nothing more than a Rehabilitation Act claim renamed as a tort

claim. As for his “contract” claims, as the court noted in his last case, Mr. “Welch also

12 references a ‘contractual relationship’ between himself and OPS but does not allege a breach of

contract aside from a ‘breach of terms of this accommodation’ and ‘breach of Reasonable

Accommodations,’ which simply restate his Rehabilitation Act claims.” See Welsh,

n.7. The Court wholly agrees with this characterization for the literally

indistinguishable claims made in this case. Because his common-law claims are nothing more

than renamed Rehabilitation Act claims, the Court grants defendants’ Motion to Dismiss for all

claims except for those that allege violations of the Rehabilitation Act against David J. Skorton,

in his official capacity as Secretary of the Smithsonian Institution.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 3) is GRANTED

IN PART and DENIED IN PART. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: November 17, 2016 RUDOLPH CONTRERAS United States District Judge

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