UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEMMIE L. WELCH, : : Plaintiff, : Civil Action No.: 16-0509 (RC) : v. : Re Document No.: 24 : DAVID J. SKORTON, Secretary, : Smithsonian Institution, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

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. II. FACTUAL BACKGROUND

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,

, 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,

, at *5 (D.D.C. Nov. 17, 2016) (finding Plaintiff’s

1 At the motion-to-dismiss stage, Defendant had originally argued that Mr. Welch had failed to exhaust administrative remedies under the Rehabilitation Act. See Def.’s Mot. to Dismiss at 5–6, ECF No. 3. Defendant abandoned this argument before the Court took up the motion, see Notice of Dismissal of Pl.’s Pending EEOC Compl., ECF No. 10, however, the Court sua sponte addressed the question to confirm that it had subject matter jurisdiction over Plaintiff’s Rehabilitation Act claims. Welch v. Powell, No. 16–509,

, at *3–5. The Court found that Plaintiff had sufficiently exhausted his administrative remedies as required under the Rehabilitation Act, and that the Court has subject matter jurisdiction.

. common-law tort and contract claims preempted by the Rehabilitation Act). Defendant now

moves for summary judgment on Plaintiff’s remaining claims.

III. LEGAL STANDARDS

A. Rehabilitation Act

“The Rehabilitation Act prohibits federal agencies from engaging in employment

discrimination against disabled individuals.” Nurridden v. Bolden,

(D.C. Cir.

2016); see also Taylor v. Small,

(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”).

; see also Minter v. District of Columbia,

(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,

(D.C. Cir. 2014). The Act also prohibits

“retaliation against or coercion of individuals who seek to vindicate the rights guaranteed by the

statute.”

(citing

(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; and

the creation of a hostile work environment.” Drasek v. Burwell,

, 153–54

(D.D.C. 2015) (citations omitted); see also Floyd v. Lee,

, 328 & n.4 (D.D.C.

203) (explaining that “[a]though this circuit has not resolved the question, four circuits have

found that hostile work environment claims are available under the ADA”). B. Summary Judgment

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. See Celotex Corp. v. Catrett,

, 323–24 (1986). A court may grant summary

judgment when “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact

is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty

Lobby, Inc.,

(1986). A dispute is “genuine” if there is enough evidence for a

reasonable jury to return a verdict for the non-movant. See Scott v. Harris,

(2007). The movant bears the initial burden of identifying portions of the record that

demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1);

Celotex,

. In response, the non-movant must point to specific facts in the record

that reveal a genuine issue that is suitable for trial. See Celotex,

. In considering

a motion for summary judgment, a court must “eschew making credibility determinations or

weighing the evidence[,]” Czekalski v. Peters,

(D.C. Cir. 2007), and all

underlying facts and inferences must be analyzed in the light most favorable to the non-movant,

see Anderson,

. Nevertheless, conclusory assertions offered without any

evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999).

IV. ANALYSIS

Mr. Welch asserts four claims under the Rehabilitation Act. Specifically, he alleges that

(1) Defendant failed to accommodate his disability; (2) Defendant intentionally discriminated

against him because of his disability; (3) Defendant retaliated against him for filing EEO complaints; and (4) Defendant subjected him to a hostile work environment. See Compl. at 5–

10. Defendant argues that it is entitled to summary judgment on each claim. Specifically,

Defendant contends that Mr. Welch’s failure-to-accommodate claim fails because he cannot

show that the Smithsonian refused to accommodate him; that Mr. Welch’s intentional

discrimination and retaliation claims fail because Mr. Welch has not shown that he was subjected

to any adverse actions; that the Smithsonian has offered legitimate, non-discriminatory and non-

retaliatory explanations for any purportedly adverse actions; and that Mr. Welch’s hostile work

environment claim does not assert allegations that are sufficiently severe or pervasive to entitle

him to relief. Def.’s Mot. Summ. J. (“Def.’s MSJ”) at 10–14, ECF No. 24. For the reasons

explained below, the Court grants Defendant’s motion.

A. Failure to Accommodate

Mr. Welch first contends that the Smithsonian violated the Rehabilitation Act by failing to

accommodate his disability. See Compl. at 4. Defendant argues that it is entitled to summary

judgment because the undisputed material facts show that the Smithsonian did not refuse to

accommodate Mr. Welch. Def.’s MSJ at 9–10. The Court agrees and grants summary judgment

for Defendant.

To prevail on a failure-to-accommodate claim under the Rehabilitation Act, a plaintiff must

produce sufficient evidence (1) that he was disabled, (2) that his federal employer had notice of

his disability, and (3) that the employer denied his request for a reasonable accommodation of his

disability. Chenari v. George Washington Univ.,

, 746–47 (D.C. Cir. 2017).

Defendant does not dispute that the first two requirements are met—Mr. Welch was disabled and

the Smithsonian had notice of Mr. Welch’s disability. Defendant contends, however, that Mr. Welch cannot produce sufficient evidence to meet the third element because no reasonable jury

could find that the Smithsonian denied Mr. Welch’s request for a reasonable accommodation.

Ordinarily, a failure-to-accommodate case involves an employer’s purported refusal to

participate in good faith in the interactive process of developing a plan to enable an employee to

continue working despite his disability. See, e.g., Ward v. McDonald,

, 31–32 (D.C.

Cir. 2014) (explaining the standard for evaluating such a claim). Mr. Welch’s claim, however, is

different. Mr. Welch does not dispute that he requested an accommodation in the form of periodic

breaks to tend to his health condition and that the Smithsonian granted the request, approving a

schedule that would afford him daily breaks in the mid-morning, at lunchtime, and in the afternoon.

See Decision on Accommodation Request (Dec. 28, 2010), Ex. C. Likewise, Mr. Welch does not

argue that the schedule that the parties developed did not reasonably accommodate his disability.

Rather, Mr. Welch contends that the Smithsonian denied him an accommodation on March 9, 2015

when it was about forty-five minutes late in providing Mr. Welch’s scheduled break. The Court

agrees with the Smithsonian that no reasonable jury could find that Defendant’s provision of a

delayed break on one occasion, or even a handful of sporadic occasions before he complained,

constituted a denial of an accommodation under the Rehabilitation Act.

First, to be sure, the Court agrees with Mr. Welch’s general assertion that an employer does

not meet its obligations under the Rehabilitation Act by agreeing to accommodate an employee in

theory and then failing to do so in practice. Cf. Norden v. Samper,

(D.D.C. 2007) (finding that an employer did not accommodate an employee’s disability by

affording “a sham proposal (a ‘flexible’ schedule that was actually inflexible)”). Another district

court in this jurisdiction explored this issue at length in Green v. American Univ.,

(D.D.C. 2009). In that case, a university had verbally instructed a driver who had been hired to transport the university president that the driver could take bathroom breaks to tend to his

disability.

at 25–26. However, during a trip, the university president was “adamant about

continuing” when the driver requested a bathroom break and “turned blue and pink in the face and

mumbled some words” when the employee proceeded to a rest stop to use the bathroom.

.

Shortly after that trip, the university terminated the driver, citing performance issues without

identifying the request for a bathroom stop as a basis for his termination.

The district court

concluded that, based on “the totality of the circumstances,” a reasonable jury could infer that the

employer had refused to accommodate the employee.”

at 36–37. Specifically, the combination

of the university president’s “known preference for zero stops during car trips and his negative

reaction to the plaintiff’s request to stop so he could use the bathroom” could have amounted to a

denial of the accommodation.

The circumstances of this case are different in several respects. First, in Green, the

plaintiff-employee faced resistance from his employer when he asked for the agreed-upon

accommodation. See

Not so here. The moment Mr. Welch informed Sgt. Powell that he had

not yet received his scheduled break, Sgt. Powell sent someone to relieve Mr. Welch. Second,

unlike in Green, there is substantial evidence on record showing efforts to ensure that Mr. Welch’s

supervisors adhered to his accommodation plan going forward. For example, Carol Gover

“thank[ed]” Mr. Welch for notifying her of “the supervisor’s oversight” regarding the provision of

breaks and “recommend[ed] that [Mr. Welch] contact the appropriate supervisor within 15 minutes

of a missed break if an oversight occurs in the future.” Email from Carol Gover to Jemmie

, Ex. G. Likewise, Lieutenant Arnold Moss instructed Mr. Welch to contact a supervisor if he

did not receive his break within three to five minutes of the scheduled time. Email from Arnold

Moss to Jemmie Welch, Ex. E. And Security Manager Larry Carpenter specifically demanded that Mr. Welch’s supervisors “[e]nsure the MPO Jemmie Welch receives his daily breaks at 10:00

am, 12:00pm, and 2:00pm” and requested that the supervisors send “daily e-mail notifications” to

confirm that Mr. Welch had received his breaks. Email from Larry Carpenter, Ex. E. Indeed, at

the administrative level, Mr. Welch confirmed that after March 9, he had not had occasion to

complain of delayed breaks because “[a]fter the March 9th incident, breaks again became regular.”

Aff. of Jemmie Welch, Ex. A at 3, ECF No. 24-1. Under these circumstances, no reasonable jury

could conclude that the Smithsonian denied Mr. Welch a reasonable accommodation.

Accordingly, the Court grants Defendant’s request for summary judgment with respect to this

claim.

B. Disability Discrimination

Mr. Welch next argues that the Smithsonian engaged in disability discrimination under

the Rehabilitation Act, apparently by delaying Mr. Welch’s scheduled break by forty-five

minutes on March 9, 2015, and by requesting that Mr. Welch send an email to confirm that he

had received his scheduled break. See Compl. at 5–6. Defendant argues that Mr. Welch has

suffered no adverse employment action, a required component of a disability discrimination

claim. Def.’s MSJ at 10–11. Defendant also contends that it has asserted a legitimate,

nondiscriminatory reason for each action and that Mr. Welch has not provided evidence on

which a jury might conclude that the offered explanations are pretext. The Court agrees on both

counts.

“[T]he two essential elements of a discrimination claim are that (i) the plaintiff suffered

an adverse employment action (ii) because of the plaintiff’s . . . disability.” Baloch v.

Kempthorne,

(D.C. Cir. 2008). “A plaintiff must prove both elements to

sustain a discrimination claim.”

Even if a plaintiff has suffered an adverse action, an employer is still entitled to summary judgment if it “asserts a legitimate, nondiscriminatory

reason for [the] adverse employment action,” and plaintiff fails to produce “sufficient evidence

for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the

actual reason and that the employer intentionally discriminated against the plaintiff on a

prohibited basis.” Adeyemi v. District of Columbia,

(D.C. Cir. 2008).

Mr. Welch’s disability discrimination claim fails for two distinct reasons. First, Mr.

Welch has not demonstrated that he suffered any adverse employment action. “An adverse

employment action is ‘a significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision causing

significant change in benefits.’” Redmon v. U.S. Capitol Police,

(D.D.C.

2015) (quoting Taylor v. Small,

(D.C. Cir. 2003)). “If an action is not

presumptively adverse, such as hiring and firing, ‘[a]n employee must experience materially

adverse consequences affecting the terms, conditions, or privileges of employment or future

employment opportunities such that a reasonable trier of fact could find objectively tangible

harm.’” Redmon,

(quoting Douglas v. Donovan,

(D.C.

Cir. 2009) (alteration in original) (footnote omitted)). Here, Mr. Welch alleges that he suffered

“adverse consequences such as anxiety, embarrassment from having urinated on himself, and

emotional anguish.” Opp’n to MSJ at 6. The allegations plainly do not rise to the level of an

adverse employment action as none can be said to tangibly affect the terms, conditions, or

privileges of Mr. Welch’s current or future employment. Likewise, the denial of a timely break

on one occasion does not alone constitute an adverse employment action. Cf. Beckham v. Nat’l

R.R. Passenger Corp.,

(D.D.C. 2010) (“Being denied the ability to

work from home on, at most, three occasions is a minor annoyance, not an adverse action.”). Second, even if the denial of a timely break and the request that Mr. Welch confirm that

he has received his scheduled breaks constituted adverse actions, Mr. Welch’s claim still fails.

Defendant has explained that Sgt. Powell neglected to provide Mr. Welch a timely break on

March 9, 2015 because 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. Though Mr. Welch has

provided some evidence that Sgt. Powell may have been less than truthful in explaining why he

was distracted, see Email from Matthew Rogers (asserting that Sgt. Powell was “on the computer

reading Msn Sport page” when he was supposed to relieve Mr. Welch for his scheduled break),

ECF No. 25-3, Mr. Welch has provided no evidence from which a reasonable jury could infer

that Sgt. Powell intentionally delayed giving Mr. Welch his break because of Mr. Welch’s

disability. Furthermore, Defendant has asserted that Sgt. Powell asked Mr. Welch to email to

confirm that he had received his scheduled break because he was attempting to make sure that

Mr. Welch was properly accommodated. Def.’s MSJ at 15. Mr. Welch has offered no evidence

that might undermine this explanation. These are legitimate, nondiscriminatory explanations for

Defendant’s conduct. Because Plaintiff has failed to produce any evidence on which a

reasonable jury might find that these explanations were pretext, Defendant is entitled to summary

judgment on this claim.

C. Retaliation

Next, Mr. Welch asserts that his supervisor retaliated against him for filing an

administrative complaint regarding his delay in receiving his scheduled break on March 9, 2015.

See Compl. at 5–7. Defendant contends that it is entitled to summary judgment because Mr.

Welch has not alleged any materially adverse action and because, even if the actions alleged

were materially adverse, Defendant has asserted legitimate, nonretaliatory reasons for each act. Def.’s MSJ at 12–13, 14–15. While, viewed in the light most favorable to Mr. Welch, some of

his allegations constitute materially adverse actions, Defendant is still entitled to summary

judgment because Mr. Welch has failed to rebut Defendant’s explanations for its actions.

“Where, as here, a plaintiff offers only circumstantial evidence of retaliation, [his] claim

is governed by the burden-shifting framework of McDonnell Douglas Corp. v. Green,

, 802–08 (1973).” Solomon,

. Under that framework, a plaintiff must “first

establish a prima facie case of retaliation by showing” that (i) he “engaged in statutorily

protected activity,” (ii) he “suffered a materially adverse action” by his employer, and (iii) a

“causal link connects the two.”

(citing Jones v. Bernanke,

(D.C. Cir.

2009)). “Once a prima facie case is established, the burden of production shifts to the employer

to produce ‘a legitimate, non[retaliatory] reason’ for its action.” Solomon,

. “If

the employer does so, the plaintiff must respond with sufficient evidence to ‘create[] a genuine

dispute on the ultimate issue of retaliation either directly by [showing] that a [retaliatory] reason

more likely motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.’”

(first and second alterations in original) (quoting

Pardo–Kronemann v. Donovan,

(D.C. Cir. 2010)). Where an employer comes

forward with a legitimate, non-retaliatory justification, the Court need only focus on whether the

plaintiff has created a dispute on the ultimate issue of retaliation. See

An employee may

create such a dispute “either directly by showing that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Jones,

(brackets and internal quotation marks omitted)

(quoting U.S. Postal Serv. Bd. of Governors v. Aikens,

(1983)). Mr. Welch contends that Defendant retaliated against him in two instances. Specifically,

Mr. Welch asserts that Sgt. Powell singled him out, in front of other officers, during roll call on

March 12, 2015. During the roll call incident, Sgt. Powell purportedly informed other officers

that Mr. Welch had filed a complaint regarding his delayed break, and Sgt. Powell allegedly

requested that Mr. Welch e-mail in the future to confirm that he had received his scheduled

breaks. Mr. Welch also contends that, on March 23, 2015, Sgt. Powell retaliated against him by

criticizing him regarding a door left open at the loading dock. See Compl. 5–8.

Drawing all reasonable inferences in Mr. Welch’s favor, he has shown that he suffered a

materially adverse action with regard to the March 12, 2015 roll call incident. However, Mr.

Welch has not demonstrated that he suffered a materially adverse action with regard to the

March 23, 2015 loading dock incident.

Retaliation “encompass[es] a broader sweep of [adverse] actions than those in a pure

discrimination claim.” Baloch,

n.4. In the retaliation context, a “materially

adverse” action is one that would have “dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006) (quoting Rochon v. Gonzales,

(D.C. Cir. 2006)). The D.C.

Circuit has clarified that “job-related constructive criticism” does not constitute a materially

adverse action unless it is accompanied by tangible harm, such as the potential that a negative

performance review could affect an employee’s position, grade level, salary, or promotion

opportunities. See Baloch,

. By contrast, actions that “ostracize” an employee

because of his decision to file EEO complaints can, under certain circumstances, suffice even if

no tangible harm results. See Mogenhan v. Napolitano,

(D.C. Cir. 2010)

(concluding that an employee’s claims that her employer had posted her EEO complaint on an intranet cite where other employees could and did access it and that her employer had increased

her workload “to keep [her] too busy to file complaints” sufficed to show that she had been

subjected to a material adverse action).

Here, viewing the evidence in the light most favorable to Mr. Welch, the March 12, 2015

incident qualifies as materially adverse. According to Mr. Welch, his supervisor “singled [him]

out” by “inform[ing] all those . . . in attendance at [r]oll [c]all that [Mr. Welch] had filed a

complaint” and by requesting, apparently in front of other officers, that Mr. Welch email to

confirm that he received his scheduled breaks. Compl. at 5. A reasonable jury could believe

that, by informing other officers that Mr. Welch had filed an EEO complaint and by broadcasting

the requirement that Mr. Welch email to confirm that he received his scheduled breaks—a

request not made of other officers—Mr. Welch’s employer had taken actions that might dissuade

an employee from making or supporting a charge of disability discrimination. The same cannot

be said of Mr. Welch’s contentions regarding the March 23, 2015 incident at the loading dock.

Even viewing the evidence in the light most favorable to Mr. Welch, he has alleged only that he

endured job-related criticism, and he has failed to tie that criticism to any tangible harm.

Accordingly, while Mr. Welch has shown that the purported incidents on March 12, 2015 might

constitute materially adverse actions, he has not demonstrated that the incident on March 23,

2015 qualifies as such.

In any event, Defendant is still entitled to summary judgment because it has offered

legitimate, non-retaliatory explanations for each action and Mr. Welch has failed to create a

dispute on the ultimate issue of retaliation. Regarding the March 12, 2015 incident, Defendant

explains that, during roll call, Sgt. Powell asked Mr. Welch to email to confirm that he had

received his breaks to ensure that there would be no further issues accommodating Mr. Welch. See Def.’s MSJ at 15. Defendant also contends that Mr. Welch was only asked to send emails on

one day to confirm that he had received his breaks. See Def.’s MSJ at 5. Thereafter, Sgt. Powell

rescinded the request after learning from his supervisors that Sgt. Powell was to provide this

information each day. See Def.’s MSJ at 5. Regarding the March 23, 2015 incident, Defendant

explains that Sgt. Powell criticized Mr. Welch for the open door because Mr. Welch had not

followed proper protocol for relieving a fellow officer and had, instead, left his assigned post

unattended. See Def.’s MSJ at 6–7, 15. Sgt. Powell intended only to refresh Mr. Welch’s

memory regarding procedures for the loading dock doors and of his duties while assigned to the

loading dock. Def.’s MSJ at 6–7. Mr. Welch fails to offer any evidence on which a reasonable

jury could either conclude that a retaliatory reason more likely explained either action or that the

Smithsonian’s explanations are unworthy of credence. Accordingly, the Court enters summary

judgment for Defendant on this claim.

D. Hostile Work Environment

Finally, Mr. Welch contends that he was subjected to a hostile work environment,

apparently based on the same conduct that formed the basis for Mr. Welch’s retaliation and

disability discrimination claims. See Compl. at 10. Defendant moves for summary judgment,

asserting that the conduct of which Mr. Welch complains was not sufficiently severe or

pervasive to create a hostile work environment. The Court agrees and grants Defendant’s

motion.

“To state a hostile work environment claim, a plaintiff must allege facts sufficient to

show that the ‘workplace is permeated with discriminatory intimation, ridicule, and insult’ that is

‘sufficiently severe or pervasive [as] to alter the conditions of the victim’s employment and

create an abusive working environment.’” Buie v. Berrien,

(D.D.C. 2015) (alteration in original) (quoting Harris v. Forklift Sys.,

(1993)). “In

determining whether an actionable hostile work environment claim exists, [courts] look to all the

circumstances, including the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Buie,

(quoting Nat’l

R.R. Passenger Corp. v. Morgan,

(2002)). A hostile work environment claim

cannot be based on “the ordinary tribulations of the workplace.”

(citing Faragher v. City of

Boca Raton,

(1998)).

The Court agrees with Defendant that Mr. Welch’s claims fall well short of meeting this

standard. First, the allegedly harassing conduct was infrequent, occurring only on a small

number of occasions. Mr. Welch has not argued that the purportedly hostile environment

extended beyond the incidents on March 9, 2015, when Mr. Welch belatedly received his

scheduled break; on March 12, 2015 during roll call; and on March 23, 2015 at the loading dock.

Second, Mr. Welch was in no way physically threatened by any of the alleged incidents. See

Faragher, 524 U.S. 787–88 (explaining that a factor in assessing the hostility of a work

environment is whether plaintiff was physically threatened). Third, Mr. Welch’s claims appear

to primarily involve work-related actions by supervisors, and courts have generally rejected such

claims as sufficient to constitute a hostile work environment. See Wade v. District of Columbia,

(D.D.C. 2011) (collecting case). Fourth, “in order to succeed on a hostile

work environment claim, the behavior complained of must be ‘so objectively offensive as to alter

the conditions of the victim’s employment.’” Townsend v. United States,

,

312–13 (D.D.C. 2017) (quoting Oncale v. Sundowner Offshore Servs., Inc.,

(1998). None of the behavior Mr. Welch complains of is objectively offensive. For example, while it is surely unfortunate that Mr. Welch purportedly urinated himself because of Sgt.

Powell’s forty-five minute delay in providing Mr. Welch’s scheduled break, this does not show

that Sgt. Powell’s behavior was itself offensive. Mr. Welch does not allege—and certainly offers

no evidence showing—that Sgt. Powell delayed in providing a timely break in an attempt to

prompt such a response from Mr. Welch or to otherwise humiliate him. And no reasonable jury

could infer such an intent on this record. In sum, even affording Mr. Welch all reasonable

inferences, as this Court must, he has not provided facts sufficient to permit an inference that his

employer’s conduct created a hostile work environment. Accordingly, Defendant’s motion for

summary judgment is granted.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 24) is

GRANTED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: March 22, 2018 RUDOLPH CONTRERAS United States District Judge