Welsh v. Hagler

83 F.Supp.3d 212

Jemmie L. Welsh, Plaintiff

v.Robin Hagler et al., Defendants.

Civil Action No. 14–cv–153 TSC

United States District Court, District of Columbia.

Signed March 18, 2015

Oladipo A. Akin–Deko, Akin–Deko Professional Services Firm PLLC, Alexandria, VA, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Jemmie Welch¹ sued the Smithsonian and two of its employees for failure to reasonably accommodate his diabetes. Before the Court is Defendants' motion to dismiss. Because Welch failed to exhaust his administrative remedies or initiate the administrative process, the motion to dismiss is granted.

I. BACKGROUND

The Complaint alleges the following facts, which will be assumed to be true for purposes of the motion to dismiss. Plaintiff has been a security officer for the Smithsonian Institution since October 2008. (Compl. ¶ 5). Welch was diagnosed with diabetes in February 2010, and notified his manager. (Id. ). After suffering some type of adverse action related to his medical condition in June 2010, Welch contacted Carol Gover, the accommodations coordinator for the Smithsonian Office of Equal Employment and Minority Affairs (“OEEMA”), to complain about his work conditions and request a reasonable accommodation. He received an approved reasonable accommodation in December 2010. (Id. ).

Shortly after Welch received his approved accommodation, the Smithsonian transferred him to a different location (the “Pennsy Drive unit” in the “Suitland Zone”). (Id. ¶ 6). After the transfer, Welch alleges he suffered five separate violations of his accommodation, four of which occurred under the supervision of Defendant Sgt. Robin Hagler. Welch claims that he filed complaints regarding each alleged violation, although it is unclear where and with whom these complaints were filed. (Id. ). As a result of these incidents, Welch filed the instant Complaint on January 31, 2014 against Hagler, Peter Mroczkewicz (the deputy director of the Office of Protective Service (“OPS”)), and the Smithsonian Institution (collectively, the “Defendants”),² alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Welch also appears to bring a variety of other common law claims, although they all arise out of Defendants' alleged interference with his reasonable accommodation. (Id. ¶ 7).

II. LEGAL STANDARD

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005) ). Nevertheless, “ ‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.’ ” Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C.2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C.2006) ).

Under Rule 12(b)(1), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) ).

III. ANALYSIS

a. Reasonable Accommodation

As a threshold matter, Defendants argue that Welch's claims are improper because they are brought solely pursuant to the ADA, which does not apply to federal employees. Defendants assert that Welch should have brought his disability claims under Section 501 of the Rehabilitation Act, which provides a cause of action for federal employees to challenge disability discrimination. See 29 U.S.C. § 791(b). The Court finds that because “[c]ourts must construe pro se filings liberally,”³ Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999), because Welch would likely be granted leave to amend the Complaint, and because the Defendants will not be prejudiced by reading the Complaint as bringing a disability claim under the Rehabilitation Act as opposed to the ADA, the Court will construe Welch's claims as brought under the Rehabilitation Act.

i. Failure to Exhaust Administrative Remedies

Defendants move to dismiss the Complaint because Welch failed to exhaust his administrative remedies. Specifically, Defendants point out that Welch never began informal equal employment opportunity (“EEO”) counseling with respect to the five alleged incidents, meaning he failed to take even the first steps necessary to exhaust his administrative remedies for his reasonable accommodation claims. Welch responds that he attempted to meet the exhaustion requirements by submitting complaints to the Smithsonian's EEO counselor, meaning Defendants were put on notice of the alleged violations.

Section 501 of the Rehabilitation Act requires federal employers, including the Smithsonian, to take “affirmative action ... for the hiring, placement, and advancement of individuals with disabilities.” 29 U.S.C. § 791(b). Judicial review under Section 501 is limited to employees “ ‘aggrieved by the final disposition’ of their administrative ‘complaint,’ ” which the D.C. Circuit has interpreted as “mandating administrative exhaustion.” Spinelli v. Goss, 446 F.3d 159, 162 (D.C.Cir.2006) (citations omitted). The Equal Employment Opportunity Commission (“EEOC”) has implemented regulations setting forth the exhaustion process. First, an employee complaining of disability discrimination must “consult a Counselor prior to filing a complaint in order to try to informally resolve the matter ... An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory[.]” 29 C.F.R. § 1614.105(a). Informal counseling is the first step in the administrative process, after which an employee must file a formal complaint and a stated amount of time must elapse before the employee may file a civil action in U.S. district court. 29 C.F.R. § 1614.407.

The D.C. Circuit has held that exhaustion under the Rehabilitation Act is jurisdictional, unlike other federal statutes where exhaustion is a prudential requirement subject to futility and other exceptions.⁴ Spinelli, 446 F.3d at 162 (holding that because “there was no administrative complaint and thus no final disposition of one, the district court lacked jurisdiction”); Leiterman v. Johnson, No. 13–394, 60 F.Supp.3d 166, 186–87, 2014 WL 3708040, at *13 (D.D.C.2014); Rosier v. Holder, 833 F.Supp.2d 1, 8 (D.D.C.2011). Because exhaustion is a jurisdictional requirement, it is the plaintiff's burden to plead and prove that the Court has jurisdiction. Rosier, 833 F.Supp.2d at 8.

It is unclear whether Plaintiff even disputes that he did not meet the exhaustion requirement. He does not allege that he exhausted his administrative remedies; instead, he argues that “Defendants and the OEEMA were put on notice of several alleged disability discrimination incidents” as a result of Welch's communications with Gover, and that by “us[ing] the Smithsonian's complaint channels to document all the alleged incidents ... Officer Welch sought to exhaust without success his administrative remedies prior to filing his complaint.” (Pl. Opp'n 4). Defendants argue that Welch's admission that he sought to exhaust his administrative remedies “without success” is tantamount to admitting he fails the exhaustion requirement. (Def. Reply 2–3). Defendants also argue that the communications Welch had with Gover do not “show that Mr. Welch ever sought OEEMA counseling for the events alleged in his complaint.” (Id. at 3). Defendants attach to their motion a declaration from Angela Roybal, an EEO Counselor in the OEEMA, stating that Welch never entered either the informal or formal complaint process with Smithsonian's EEO office. (Def. Mot. Ex. 1).

Under the applicable EEOC regulations, in order to start the informal counseling process an employee must “initiate contact with a Counselor” within 45 days of the alleged discrimination. 29 C.F.R. § 1614.105(a). The regulation does not define what it means to “initiate contact,” but the EEOC has consistently held that “a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.” EEOC Management Directive 110, at ch. 2, § I.A, n.1 (Nov. 9, 1999) (citing Kinan v. Cohen, Request No. 05990249, 1999 WL 320546 (May 6, 1999) ). An agency's interpretation of its own regulation is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ). While the D.C. Circuit has not addressed the meaning of the phrase “initiate contact,” numerous other courts have adopted the EEOC's interpretation. Nygren v. Ashcroft, 109 Fed.Appx. 816, 819 (8th Cir.2004) (per curiam) (deferring to the EEOC's interpretation); Lane v. Tschetter, No. 05–1414, 2007 WL 2007493, at *4 (D.D.C. July 10, 2007) (same); Klugel v. Small, 519 F.Supp.2d 66, 70–73 (D.D.C.2007) (same); Johnson v. Glickman, 155 F.Supp.2d 1240, 1247–48 (D.Kan.2001) (same). The Court agrees with these courts' reasoning and adopts the EEOC's interpretation regarding when an employee “initiate[s] contact” for...