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, 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
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, 2016 WL 6806211, 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. Id. at *6. 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, 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; and
the creation of a hostile work environment.” Drasek v. Burwell, 121 F. Supp. 3d 143, 153–54
(D.D.C. 2015) (citations omitted); see also Floyd v. Lee, 968 F. Supp. 2d 308, 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, 477 U.S. 317, 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., 477 U.S. 242, 248 (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, 550 U.S. 372, 380
(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, 477 U.S. at 323. 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, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew making credibility determinations or
weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all
underlying facts and inferences must be analyzed in the light most favorable to the non-movant,
see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 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., 847 F.3d 740, 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, 762 F.3d 24, 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, 503 F. Supp. 2d 130, 156
(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., 647 F. Supp. 2d
21 (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. Id. 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. Id. at 26.
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. Id. 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.” Id. 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. Id.
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 id. 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 Welch
at 1, 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, 550 F.3d 1191, 1196 (D.C. Cir. 2008). “A plaintiff must prove both elements to
sustain a discrimination claim.” Id. 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, 525 F.3d 1222, 1226 (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, 80 F. Supp. 3d 79, 86 (D.D.C.
2015) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (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, 80 F. Supp. 3d at 87 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (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., 736 F. Supp. 2d 130, 149 (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, 411 U.S.
792, 802–08 (1973).” Solomon, 763 F.3d at 14. 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.” Id. (citing Jones v. Bernanke, 557 F.3d 670, 677 (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, 763 F.3d at 14. “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.’” Id. (first and second alterations in original) (quoting
Pardo–Kronemann v. Donovan, 601 F.3d 599, 604 (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 id. 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, 557 F.3d at 678 (brackets and internal quotation marks omitted)
(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (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, 550 F.3d at 1198 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, 548 U.S. 53,
68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (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, 550 F.3d at 1199. 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, 613 F.3d 1162, 1166 (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, 85 F. Supp. 3d 161, 180 (D.D.C. 2015) (alteration in original) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (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, 85 F. Supp. 3d at 180 (quoting Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). A hostile work environment claim
cannot be based on “the ordinary tribulations of the workplace.” Id. (citing Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (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,
780 F. Supp. 2d 1, 19 (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, 236 F. Supp. 3d 280,
312–13 (D.D.C. 2017) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(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