                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

WILLIAM PORTER

                  Plaintiff,

        v.

KATHLEEN G. SEBELIUS,                              Civil Action No. 11-1546 {GK}
Secretary of the United
States Department of Health
and Human Services,

                  Defendant.


                                    MEMORANDUM OPINION

        Pro se plaintiff William Porter                        ("Plaintiff"     or    "Porter")

brings       this       action    against    Kathleen          Sebelius    in   her    official

capacity          as    Secretary    of     the    Department       of    Heal th     and    Human

Services          ("Defendant,"       "Employer"          or    "Secretary") . 1      Plaintiff

alleges       racial        discrimination,          hostile       working        environment,

failure       to grant       reasonable accommodations,                  and retaliation in

violation of Title VII of the Civil Rights Act of 1964                                      ("Title

VII"),       42    U.S.C.    §    2000e   et      seq.;    discrimination,          failure      to

provide reasonable accommodation, and hostile work environment in

violation              of   the     Federal        Rehabilitation           Act       of      1973

("Rehabilitation Act"),              29 U.S.C.       §    701 et seq.;       and failure to




1   Mr. Porter completed law school but has not worked as an attorney.
provide     a    reasonable    accommodation       under    the     Americans   with

Disabilities Act ("ADA"), 42 U.S.C.            §   12101 et seq. 2

        This matter       is . presently before     the    Court on Plaintiff's

Motion for Summary Judgment filed on June 17, 2014 ("Pl.'s Mot.")

    [Dkt. No. 95], and Defendant's Cross-Motion for Summary Judgment

and Opposition to Plaintiff's Motion for Summary Judgment ("Def.'s

Mot.")    [Dkt. No. 99] filed on Augus.t 28, 28, 2014.

        Upon consideration of the Motions, Oppositions, and Replies,

the     entire    record    herein,   and   for    the    reasons    stated below,

                                                     ,. granted in
Plaintiff's Motion is denied, and Defendant's Motion is

part and denied in part.


I .     BACKGROUND

          A. Factual Background

        Porter, an African-American male who states that he suffers

from a generalized anxiety disorder, worked as a Program Analyst

in the Administration and Finance branch ("A&F") of the Office of

Finance,     Program,      and Analysis     in the Office of         the Assistant

Secretary of Preparedness and Response ( "ASPR") . ·Second Am. Compl.

("Compl.")       ~~   7, 18 [Dkt. No. 63].




2Mr. Porter's Complaint is less than clear about which claims are
violated under which statute.
                                        -2-
       Porter began his employment at the Department of Health and

Human Services      ("HHS")   in the ASPR in 2007. Def.'s Ex. 1, Porter

Dep.   at   14   ("Porter Dep.")    [Dkt.      No.   95] .   When the       events   in

question occurred,      Porter was working as a GS-14 Program Analyst

at the A&F branch of the ASPR. Def.'s Statement of Material Facts

(August 28, 2014) at 1 [Dkt. No. 99-4]. His work involved billings

for disaster relief provided by the Federal Emergency Management

Agency ("FEMA"). Porter Dep. at 17.

       David Dolinsky, Deputy Director of Administration and Finance

of ASPR, became Porter's immediate supervisor in August 2009. Id.

at 30. Jay Petillo, Director of the Office of Financial Planning

and Analysis, was Plaintiff's second level supervisor. Def.'s Ex.

3, Petillo Aff.      (March 8, 2012)   ~   s   ("2012 Petillo Aff.)          [Dkt. No.

93-3].
                                -
       Initially, Plaintiff's working relationship with Dolinsky was

"fine." Porter Dep. at 32. In fact, in early 2010 Dolinsky approved

a promotion for Porter and gave him an "exceptional" evaluation

for 2009. Def.'s Ex. 4,        Petillo Aff.      (Oct. 27,     2010)    ~   14   ("2010

Petillo Af f.")     [Dkt. No. 99-3] ; Def. 's Ex. 5, Dolinsky Af f.               (July

21, 2010)    ~   11-12 ("2010 Dolinsky Aff.")         [Dkt. No. 99-3].

       However, Dolinsky gave Porter an "unacceptable" rating on his

quarterly evaluation for the first quarter of 2010. Dolinsky Aff.


                                       -3-
~      13.       Dolinsky      stated that           the    review was     justified because,

although he had tried,

                    to mentor and guide Mr. Porter in areas such
                    as interagency payment and collection, Mr.
                    Porter has recently indicated that he will not
                    change the way he does things in spite of my
                    pointing out serious problems. * * * Although
                    I have tried countless times to show Mr.
                    Porter the correct way to do things, he shakes
                    his head and continues to do things the way he
                    wants to.

         Id. ~ 14. See also, Def.'s Ex. 16, Dolinsky Email to Petillo

(April 27,             2010)    ("April 21,          2010 Petillo Email")         [Dkt. No.    99-

3] .

         By        April     15,    2010,      the     relationship       between   Porter     and

Dolinsky           had     soured     badly.     Porter was         offended     when Dolinl:'.kY

expressed his opinion that Louis Farrakhan is an anti-Semite and

stated that he did not like Jesse Jackson because "he is known to

have cheated on his wife and various other things." 2010 Dolinsky

Aff.         ~   21.    The following day,             Porter initiated the process of

filing an Equal Employment Opportunity ("EEO") Complaint. Pl.'s Ex.

7,     Porter Email            (April 16,      2010)        ("April 16,    2010 Porter Email")

[Dkt.        No.    99-3].     On May 24,       2019,       Porter officially filed an EEO

Complaint           against        Dolinsky.     Def.'s       Ex.   7,    EEO   Complaint     ("EEO

Complaint")             [Dkt. No. 99-3].

         In a          series of emails,         Porter complained that he was being

harassed by Dolinksy forcing him to remain in his office at all times,
                                                      -4-
by not being assigned any work, and by the way Dolinsky treated him.

See~,          Def.'s Ex.    6,    Porter Email to Petillo       (April 23,    2010)

("April 23, 2010 Porter Email")          [Dkt. No. 99-3]; Def. 's Ex. 8, Porter

Email to Dolinsky (May 11, 2010)             ("May 11, 2010 Porter Email")      [Dkt.

No.   99-3];   Def.' s Ex.    9,   Porter Email to Dolinsky        (May 13,    2010)

("May 13, 2010 Porter Email")         [Dkt. No. 99-3]. Porter stated that the

alleged harassment was causing him to have panic attacks. Id.

      As a     result,   Porter asked to be reassigned and relocated to

another building in order to avoid contact with Dolinsky, and to be

supervised by Petillo instead of Dolinsky.               April   23,   2010   Porter

Email. HHS denied this request after determining that Plaintiff was

not entitled to a reasonable accommodation since his condition was

not a disability under the Rehabilitation Act or the ADA. Def.'s Ex.

14, HHS Mem. (Aug. 6, 2010)         ("2010 HHS Mem.")   [Dkt. No. 99-3]. Petillo

denied a similar, informal request from Porter, stating that he did

not think a      transfer was in the best interest of the agency and,

therefore,     could not approve the transfer.          Def.'s Ex.     17,    Petillo

Email to Porter      (April 26,      2010)    ("April 26,   2010 Petillo Email")

[Dkt. No. 99-3].

         B. Procedural Background

      On May 24, 2010, Plaintiff filed an EEO complaint with the EEO

section of the Department of Health and Human Services. EEO Complaint.

He subsequently filed six amended complaints,               the last on December

                                         -5-
22, 2010. EEO Complaint Final Decision (June 3, 2011) at 2 n.1 [Dkt.

No.   13-1] .    On June 3,    2011,     the agency issued its Final Decision

rejecting Plaintiff's claim. Id.

       On August 26, 2011, Porter filed a Complaint [Dkt. No. l]                    in

this Court seeking review of the june 2011 Final Decision. On May

23,   2013,     Plaintiff filed a Second Amended Complaint, which is now

the operative Complaint in this action. Compl.

       On     June   17,   2014,    Plaintiff     filed   his   Motion   for   Summary

Judgment. On August 28,            2014, Defendant filed her Cross-Motion for

Summary Judgment and Opposition to Plaintiff's Motion for Summary

Judgment.       On September 29,       2014,   Plaintiff filed an Opposition to

Defendant's Cross-Motion for Summary Judgment and Reply in Support

for his Motion for Summary Judgment               ("Pl. 's Opp. and Reply")      [Dkt.

No. 101]. On October 27, 2014, Defendant filed her Reply in Support

of her Motion for Summary Judgment               ("Def.' s Reply")   [Dkt. No. 106] .

The Motions are now ripe for review.

II.   STANDARD OF REVIEW

      Summary judgment may be granted only if the pleadings,                       the

discovery materials, and affidavits on file show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);

Arrington v. Urtited States, 473 F.3d 329, 333 (D.C. Cir. 2006). "A

dispute over a material fact is 'genuine' if 'the evidence is such

                                           -6-
that a reasonable jury could return a verdict for the non-moving

party.'" Arrington, 473 F.3d                 at 333 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it

might     affect     the    outcome     of    the   case       under   the   substantive

governing law. Liberty Lobby,                477 U.S. at 248.          In reviewing the

evidence on a motion for summary judgment,                        the court views the

evidence     in     the    light most    favorable        to    the    nonmoving party.

Johnson v. Perez, No. 15-5034, 2016 WL 2941965, at *2                            (D.C. Cir.

May 2 O, 2 o16 ) .

         The burden is on the moving party to demonstrate the absence

of any genuine issues of material fact. Celotex Corp. v. Catrett,

477 U.S.     31~,    323    (1986). When a moving party successfully does

so, the nonmoving party must show the existence of a genuine issue

of material fact by providing "specific facts showing that there

is   a    genuine     issue    for    trial,"       and    "may    not    rely     on   mere

allegations or denials to prevail." Alexis v. District of Columbia,

44 F. Supp. 2d 331, 337 (D.D.C. 1999). The moving party is entitled

to   summary      judgment     when   the      nonmoving       party     fails    to    offer

evidence sufficient to establish an essential element of a claim

on which it will bear the burden of proof at trial. Celotex, 477

U.S. at 322.




                                             -7-
III. DISCUSSION

     A. Title VII Claims

          1. Legal Framework

       Plaintiff's claims of discrimination and retaliation under

Title VII are subject to the burden shifting framework set forth

in McDonnell Douglas Corp. v.                  Green,    411 U.S.   792,   802    (1973);

Wheeler v. Georgetown Univ. Hosp.,                    812. F.3d 1109, 1113-14       (D.C.

Cir. 2016). That framework requires Plaintiff to first establish

a prima f acie case of racial discrimination or retaliation under

Title VII. Wheeler, 812 F.3d at 1113-14. 3

       To establish a prima facie case of racial discrimination under

Title VII, the plaintiff must prove that 1) he suffered an adverse

employment action, 2) because of his race. Gladden v. Solis, 926

F.   Supp.    2d 147,       150    (D.D.C.    2013),    aff'd sub nom.      Gladden v.

Perez, No. 13-5125, 2013 WL 6222904 (D.C. Cir. Nov. 19, 2013). To

establish a         prima    facie    case of        retaliation under Title VII,

Plaintiff         must   show that     he     1)    suffered a    materially adverse

action,      2)    because    he     had     brought    or   threatened    to    bring   a

discriminat.ion claim.            Baloch v.        Kempthorne,   550 F. 3d 1191,     1198

(D.C. Cir. 2008).


3 While the Plaintiff sometimes seems to refer to "failure to
obtain a reasonable accommodation" as a separate claim, the term
is clearly included in his claim of retaliation.
                                              -8-
      After a plaintiff establishes a prima facie case, the burden

shifts to the employer to provide a nondiscriminatory reason for

its actions.      McDonnell Douglas Corp.,                 411 U.S.         at 802.   If the

employer provides a legitimate, nondiscriminatory reason for its

action, the burden then shifts back to the plaintiff to show that

the   employer's       stated       reason         was    merely        a     pretext     for

discrimination. Id.

      In .Brady v.     Office of Sergeant at Arms,                  520 F.3d 490,         495

(D.C. Cir. 2008), our Court of Appeals also held that" [i]n a Title

VII disparate-treatment suit where an employee has suffered an

adverse     employment       action    and        an     employer     has      asserted     a

legitimate,     non-discriminatory            reason       for    the       decision,     the

district     court    need     not-and       should        not-decide         whether     the

plaintiff actually made out a prima facie case under McDonnell

Douglas."     Id., at 494. Instead, the Court must resolve one central

question:    "[h]as the employee produced 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 employee on tne

basis of race.         " Id.




                                            -9-
             2. Plaintiff's Motion

        Plaintiff seeks summary judgment on his claims of race-based

discrimination under Title VII (Claim 1), retaliation under Title

VII (Claim 3),         failure to provide reasonable accommodation under

Title VII, the Rehabilitation Act, and the ADA (Claim 5). He claims

to have suffered a decrease in his level of responsibility,                         as

well as a lower bonus and lower performance rating than he had

achieved in the past, and disparate racial treatment with regard

to reassignments and in retaliation for his EEO Complaint. Pl.'s

Mot.    at    14-17;    Pl.' s    Reply at     18-26.   Porter also claims        that

Dolinsky threatened to fire him because he filed the EEO Complaint

(Claim 3) and hostile environment under Claim 4. Pl.'s Mot. at 34-

37.

        In     response,         Defendant     provides    a    number       of   non-

discriminatory         and   non-retaliatory        r~asons    for   these    alleged

adverse actions. Defendant argues that Porter's responsibilities

decreased only because he refused to carry out his professional

responsibilities, and admitted that he was "not mentally able to

do anymore work . . . " Def.'s Mot. at 15-16.; Def.'s Ex. 20, Porter

Email    (June 30,      2010)     ("June 30,    2010    Porter Email")       [Dkt. No.

99-3] . Defendant also points out that Porter could have continued

to perform what he described as "self-generated" work if he had


                                             -10-
not let his password to the billing system expire. Def.'s Mot. at

17;   Porter Dep.      at 45: 1-11;      2010    Dolinsky Aff.    ~    14.     Dolinsky

explained that it is up to employees to maintain access to the

agency's billing system, but Porter failed to do so. Id.

      As to Porter's decrease in his bonus and performance ratings,

Defendant argues that they were due to poor performance, including

using erroneous billing practices and refusing to correct those

errors when Dolinsky brought them to. his attention. Def.'s Mot. at

16;   Def.'s Reply Ex.      1,    Dolinsky Deel.       (April 7,       2014)    ~~    6-8

(''2014 Dolinsky Deel.")         [Dkt. No. 106].

      Porter also cited the fact that he was denied a transfer out

of the building when a Caucasian employee was allowed to transfer.

Defendant replies that the Caucasian employee's transfer was not

race-based      because,    according       to    Dolinsky's     testimony,          that

employee pref erred to perform work that Dolinksy could not provide

her in ASPR.     Def.'s Reply Ex.          3,   Dolinsky Dep.    Tr.    at 138:7-11

("Dolinsky Dep.")        [Dkt.    No.    106]     Porter did not        provide       any

evidence to contradict this testimony.

      Finally, Defendant explains that Dolinksy did not threaten to

fire Porter because he filed the EEO suit, as Plaintiff alleges.

Rather,   the    EEO   Complaint        caused Dolinsky    to    review        Porter's

position description and realized that Porter did not have the


                                         -11-
•.




     security     clearance        required        for    that       position.    Pl.' s     Ex.    19,

     Dolinsky Aff.          (August 1, 2011)         ~   21    ("2011 Dolinksy Aff.")              [Dkt.

     No. 95]. When Dolinksy told Porter to obtain the necessary security

     clearance,       Porter       refused.        Id.    Dolinsky       denied      that    he     was

     threatening to fire Porter if he pursued the EEO Complaint, but

     rather was pointing out that                   the EEO Complaint would disclose

     Porter's lack of the requisite security clearance for his position.

     Id.

            Plaintiff responds that Defendant's non-discriminatory and

     non-retaliatory reasons are merely pretextual. However,                                 most of

     his    responses        are    simply     conclusory            allegations      rather       than

     specific provable facts.               For example,         he argues that the emails

     upon which Defendant relies could be "read in a different light."

     Pl.'s Opp. and Reply at 6.

            Porter also points out that Defendant has not produced any

     documentation          to     substantiate          her     claims      about    Plaintiff's

     erroneous billing practices. Id. at 4-5. Defendant explained that

     upon   learning        that      Porter   was       preparing       a   bill     incorrectly,

     Dolinsky prevented him from completing the bill. Dolinksy Aff.                                   ~~

     6-7    (April    14,     2014)       ("2014    Dolinsky Aff.")           [Dkt.    No.     84-1].

     Porter argues that Dolinsky "did not keep copies of those incorrect

     documents       because       [he]    prevented          them    from   going    forward        and

                                                   -12-
keeping incorrectly prepared billing documents around could have

resulted in their being inadvertently submitted at a later date."

Id.     ~   8.   While   the     lack    of    documentation may be            a    relevant

consideration for a trier of fact, it does not, on its own, support

the entry of        summary judgment where                 there   is other admissible

evidence in support of the Defendant's position.                         See Sharma v.

District of Columbia, 65 F. Supp. 3d 108, 117 (D.D.C. 2014).

        Even though Plaintiff has presented "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 employee on the

basis of race.                 .," Brady,       520 F.3d at 494,         his Motion for

Summary Judgment on his claim of discrimination must be denied,

given that both parties have provided inconsistent evidence on

material issues of fact.

        Thus, the conflicting testimony of Porter and Dolinsky on the

issue       of   race-based      discrimination            and   retaliation       precludes

summary.judgment on that claim.

            3. Defendant's Motion

        Defendant argues tha.t summary judgment should be granted in

her     favor     because      Porter     has        not    presented    evidence       that




                                              -13-
Defendant's      non-discriminatory reasons            for   the alleged adverse

employment actions were pretextual.

      However, as already mentioned,            Plaintiff has pointed to the

following evidence from which a               jury could find that Defendant

discriminated        and/o~   retaliated against him.

      First, it is undisputed that a number of Caucasian employees

were transferred to other departments, while Porter's request was

denied. See, Pl.'s Opp. and Reply at 18-26; Def.'s Reply at 6-7.

Defendant      asserts,       without   citing     any       evidence,    that   the

situations of two of those employees were different than Porter's.

      However,       one   such   employee,    Brian     Sparry,   did    request   a

transfer for reasons similar to Porter's. In a letter to Petillo,

Sparry wrote that,         "your style of micro-management is adversely

affecting my health,          causing more than an inordinate amount of

stress.          I    am therefore requesting accommodation due to my

medical     condition be [ing]      adversely affected by you and to be

transferred out of RPE." Pl.'s Opp. and Reply Ex. 68, Sparry Email

(June 25, 2009)       ("2009 Sparry Email")      [Dkt. No. 101]. This evidence

showing that the Defendant granted Sparry's transfer request but

did   not    grant     Porter's    similar     request       supports    Plaintiff's

assertion that Defendant's reasons for the disparate treatment of

Porter are pretextual.


                                        -14-
•.




             Second, it is also undisputed that one employee, Linda Reeder,

     made some of the same billing mistakes that Porter made.                              Pl.'s

     Mot. at 14-17; Pl.'s Opp. and Reply at 25-26; Def.'s Reply at 7.

     Defendant asserts that Reeder was more receptive to Dolinsky's

     corrections than Porter, but does not cite any evidence in support

     of that assertion. Def.'s Reply at 7. Mere allegations, without

     specific        facts    to    support    them,     are   not    enough        to    refute

     Plaintiff's        claims     of    disparate     treatment     and    discrimination.

     Alexis v. District of Columbia,                 44 F. Supp.     2d 331,    337       (D.D.C.

     1999). In fact, Reeder stated that Dolinksy never trained her in

     proper         billing   practices,       nor     admonished     her     for        improper

     practices.        Pl.'s Opp. and.Reply Ex.           2, Reeder Aff.       (January 27,

     2012)    ·~~   7, 9, 11 ("Reeder Aff.")           [Dkt. No. 101] .

             ·Third,    Plaintiff asserts that many of the emails on which

     both     parties     rely     can   be   interpreted      differently     by        the   two

     parties. See, e.g., Pl.'s Opp. and Reply at 6. For example, Porter

     claims that the email in which he stated that he was "not mentally

     able to do anymore work . . . ,"           (June 30, 2010 Porter Email),                  was

     "a misunderstanding." Pl.'s Opp. and Reply at 6.                       He also states

     that he never intended that email to be construed as a statement

     that he would no longer process disaster relief bills. Id.




                                                -15-
       Taken in the light most favorable to Porter, the Court agrees

that a fact finder could,           on the basis of these emails,                  find a

discriminatory or retaliatory intent. As material factual disputes

remain over whether Defendant's reasons for·any alleged adverse

actions were pretextual, Defendant's Motion for Summary Judgment

shall be denied with respect to Plaintiff's Title VII claims.

  B. Rehabilitation Act Claims

         Plaintiff has brought claims of discrimination (Claim II),

   failure     to   provide   reasonable         accommodation         (Claim V) ,     and

  hostile      work    environment         (Claims      IV     and     VI)     under   the

  Rehabilitation Act.

         1. Legal Framework

       Plaintiff's Rehabilitation Act claims are also subject to the

burden shifting       framework     set    forth     in McDonnell Douglas.             See

Woodruff v.     Peters,    482 F.    3d 521,       528-29      (D.C.    Cir.    2007). As

already noted under McDonnell Douglas, a plaintiff has the initial

burden of proving a prima facie case for each claim.                            McGill v. ·

Munoz,   203   F.3d 843,      845 n.2      (D.C.   Cir.       2000).   If a plaintiff

succeeds in proving a prima facie case, the burden shifts to the

defendant to provide a nondiscriminatory reason for its actions.

See id. If the employer provides such a reason, the plaintiff must

then   have    an   opportunity     to    prove    by     a   preponderance       of   the

                                          -16-
evidence     that    the       reason offered was,. in fact,           a    pretext   for

discrimination. , Id.
                  --

       Although     the        Brady modification      to    the   McDonnell    Douglas

burden shifting framework applies in Rehabilitation Act cases, it

only     applies    if     a    defendant    answers   a    plaintiff's      claims    by

providing a nondiscriminatory reason for its actions. See Woodruff

v.   Peters,   482       F.3d     521,    528-29   (D.C.    Cir.   2007).    Here,    the

Defendant attacked Plaintiff's claims under the Rehabilitation Act

by arguing that Plaintiff had not satisfied a prerequisite to all

claims brought under that Act -- namely,                    that the Plaintiff must

be "disabled" within the meaning of the statute. Def.'s Mot. at

29-32.

          2. Plaintiff Is Not "Disabled" Within the Meaning of the
             Rehabilitation Act

       "To sustain a disability claim under the Rehabilitation Act,

a plaintiff must as a threshold matter establish that he or she

has a disability".             Klute v.    Shinseki,   840 F.      Supp.    2d 209,   215

(D.D.C. 2012). Plaintiff's Rehabilitation Act claims fail because

the undisputed facts show that Plaintiff was not "disabled" within

the meaning of the Rehabilitation Act, and therefore not entitled

to its protections. See Id.

       The standards used to determine whether a person is disabled

under the Rehabilitation Act are identical to the standards applied
                                            -17-
    under    the   ADA.         29    U.S.C.      §§    705(9) (B),         794(d).    Under    those
                                                                              -
    standards, a person is "disabled" if he or she has "a physical or

    mental impairment that substantially limits one or more major life

    activities of such individual." 42 U.S.C.                           §   12102(1)·. The statute

    defines "major life activities" to include working.                                 42 U.S.C.   §

    12102 (2) (A) .

            Although the definition of "disability" "shall be construed

    in favor of broad coverage of individuals" under the Rehabilitation

    Act, 42 U.S.C.         §    12102      (4) (A),    impairments that are developed or

    exacerbated because of a particular supervisor or work environment

    do not constitute a disability under the Act. Klute, 840 F. Supp.

    at 215-17; see Haynes v. Williams, 392 F.3d 478, 482-83 (D.C. Cir.

    2004)    ("if the symptoms of an impairment are brought on by a single

    workplace, such an impairment is not substantially limiting"). In

    particular,       an       impairment        that    can      be    alleviated     by   changing

    supervisors does not constitute a "disability" under the Act. See

    Rand    v.   Geithner,           609    F.   Supp.       2d   97,       103-04    (D.D.C.   2009)

    (dismissing Rehabilitation Act claims of plaintiff who alleged

    that    supervisors'         micromanagement             and harassment           inhibited her

    ability to work because the                  "evidence on which she [had] relie[d]

    show[ed], at most, that to the extent her impairment interfere[d]
I

    with her ability to work, it only limit[ed] her ability to work in


                                                      -18-
her particular office environment") ;                   Stroman v.     Blue Cross and

Blue Shield Assoc., 966 F. Supp. 9, 11 (D.D.C. 1997)                            (noting that

the plaintiff's "alleged inability to perform a particular job or

work for a particular supervisor will not, without more, qualify

her as disabled").

       In Klute,          the court found that the plaintiff suffered from

adjustment disorder,            anxiety and depression, along with a number

of   physical       infirmities.       Klute,     840   F.    Supp.    at       212-13.   The

plaintiff argued that he was therefore substantially limited in

his ability to work. Id. However, both the plaintiff and his doctor

admitted that the plaintiff could be successful at his job if he

was given a different supervisor. Id. at 217. The court found that

mental     .impairments         that   could    be   rectified        by    a    change     in

supervisors did not qualify as                 "disabiliti~s"     within the meaning

of the Rehabilitation Act. Id. at 217-18

       Here too, the undisputed facts show that Porter's impairments

do   not   qualify         as   "disabilities"       within    the     meaning       of    the

Rehabilitation       Ac~     because he admits that they would be alleviated

by a     change     irt    supervisor and/or office.           See April,          23,    2010

Petillo Email; Def.'s Ex. 26, Answers for Reasonable Accommodation

Request    ~   Sb    (November 5,       2010)     ("2010 Answers           for Reasonable

Accommodation Request")            [Dkt. No. 99-3].


                                          -19-
        Plaintiff claims that he is disabled because he suffers from

panic    attacks,       a    generalized anxiety disorder,                depression and

post-traumatic stress disorder. Pl.'s Mot. at 18-20. Plaintiff has

shown,    and    Defendant          does    not   dispute,   that       these    conditions

predated April 2010 when Porter received his "unacceptable" rating

on his performance review.                 See Pl.'s Ex.        39,   Wang,     M.D.   Letter

(Sept.    9,    2010)       [Dkt.   No.    95];   Porter Dep.     at 107:7-23; Def.'s

Reply at 12.

        Thus, by Plaintiff's own admission, these impairments did not

limit his ability to work before April 2010. Porter Dep. at 193:5-

8 {"Q. So before April of 2010, none of these conditions prevented

you from doing your job successful? A. At work? No. No."). Porter's

"impairments"       have        only      inhibited    him   from       working    for    one

supervisor,       Dolinsky.         A     doctor's    evaluation        upon    which    both

Plaintiff      and Defendant            rely states     that,     "[a] ccording to Mr.

Porter his symptoms at work are specific to his supervisor." 2010

Answers for Reasonable Accommodation Request                      ~5.

     Furthermore, Porter's requests for accommodation were simply

to relocate to another building away from Dolinsky and to work for

a different supervisor. See e.g. April 23, 2010 Porter Email. An

impairment such as Porter's that only limited his ability to work

for and near a certain supervisor is not, as a matter of law, a


                                              -20-
"disability" under the Rehabilitation Act. See e.g., Haynes, 392

F.3d at 482-83.

       Accordingly,   Defendant's Motion for Summary Judgment as to

Plaintiff's     claims   of   discrimination    (Claim   II),    failure     to

provide    reasonable    accommodation    (Claim   V),   and    hostile    work

environment harassment (Claims IV and VI) under the Rehabilitation

Act are granted.


     C. Failure to Provide Reasonable Accommodation under the ADA

       It is not entirely clear whether Plaintiff asserts his claim

of    failure   to    provide   reasonable     accommodation      under     the

Rehabilitation Act or under the ADA. See Pl.'s Mot. at 21-30. To

the extent that Plaintiff asserts this claim under the ADA,                  it

fails for the same reason that his Rehabilitation Act claims fail-

i. e. he was not "disabled" within the meaning of the ADA.

       To establish a reasonable.accommodation cause of action under

the ADA, a plaintiff must show that: 1) he was disabled within the

meaning of the ADA; 2) his employer was aware of his disability;

3) he could have done his job with reasonable accommodation; and

4)   he was denied such accommodations.        See McNair v. District of

Columbia, 11 F. Supp. 3d 10, 14 (D.D.C. 2014).

       The standards used to determine whether a person is disabled

under the Rehabilitation Act are identical to the standards applied

                                   -21-
under the ADA. See 29 U.S.C.             §§    705(9) (B),    794(d). Therefore, if

a person is not "disabled" under the Rehabilitation Act he cannot

be "disabled" under the ADA. See id. Since the undisputed facts

show     that    Porter was    not   disabled within            the   meaning   of   the

Rehabilitation Act, for the reasons already articulated in Section

III.B.2, he cannot be considered "disabled" under the ADA.

        Accordingly,       Defendant's        Motion    for   Summary· Judgment       on

Plaintiff's claims of failure to provide reasonable accommodation

    (Claim V) under the ADA are granted.

IV.     CONCLUSION

        For the     foregoing reasons,          Plaintiff.' s    Motion for Summary

Judgment        is denied in its entirety,             and Defendant's Motion is

granted in part and denied in part. Claims II, IV, V and VI shall

be     dismissed    with    prejudice. 4       An    Order    shall   accompany      this

Memorandum Opinion.



June 14, 2016                                       Gladys Kessie
                                                    United States District Judge




4 Plaintiff is strongly urged to retain a                       qualified attorney,
should this case proceed to trial.
                               -22-
