Welch v. Skorton
Welch v. Skorton
Opinion of the Court
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, nondiscriminatory 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 *107(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,
III. LEGAL STANDARDS
A. Rehabilitation Act
"The Rehabilitation Act prohibits federal agencies from engaging in employment discrimination against disabled individuals." Nurriddin v. Bolden ,
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 ,
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. ,
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 ,
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 ,
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
B. Disability Discrimination
Mr. Welch next argues that the Smithsonian engaged in disability discrimination *111under 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 ,
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 ,
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 *112was 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 ,
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, *1132015. 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 ,
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 *114issue 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 ,
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 ,
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.
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,
Reference
- Full Case Name
- Jemmie L. WELCH v. David J. SKORTON, Secretary, Smithsonian Institution
- Cited By
- 8 cases
- Status
- Published