WILLIAM PORTER 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Plaintiff, 

v. 

KATHLEEN G. SEBELIUS, 

Secretary of the United 

States Department of Health 

and Human Services, 

Civil Action No. 11-1546 {GK} 

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, 

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

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]. 

2 Mr. Porter's Complaint is less than clear about which claims are 

violated under which statute. 

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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. 

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~ 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, 

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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 

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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 

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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 o 16 ) . 

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. 

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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. 

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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 nondiscriminatory reason was not the actual reason and that the 

employer intentionally discriminated against the employee on tne 

basis of race. " Id. 

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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 nondiscriminatory 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 

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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 

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•. 

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 

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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 nondiscriminatory 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 

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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. 

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•. 

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. 

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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 

Rehabilitation Act. 

1. Legal Framework 

(Claims IV and VI) under the 

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 

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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 

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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 

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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]. 

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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 

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"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 faili. 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 

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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. 

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