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Crowley v. Vilsack

United States District Court, District of Columbia

February 15, 2017

Kevin Crowley, Plaintiff,
Tom Vilsack, Secretary, U.S. Department of Agriculture Defendant.


          Amit P. Mehta United States District Judge.


         Plaintiff Kevin Crowley filed this lawsuit against Tom Vilsack, former Secretary of the United States Department of Agriculture (“USDA” or “Defendant”), under the Rehabilitation Act, which prohibits federal employers from discriminating and retaliating against employees based on a disability. See 29 U.S.C. § 794(a); 42 U.S.C. § 12203(b).[1] Plaintiff alleges that his employer, the USDA, retaliated against him by placing him on a Performance Improvement Plan (“PIP”) in response to his request for a workplace accommodation for his disability.

         This matter is before the court on Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment. Defendant seeks dismissal under Federal Rule of Civil Procedure 12(b)(6), on the ground that Plaintiff fails to plead an adverse employment action, which is a necessary element to a retaliation claim. Alternatively, Defendant asks the court to enter summary judgment in its favor-even though Plaintiff has not been afforded the opportunity to take any discovery-on the grounds that Plaintiff can neither (1) establish the causation element of his retaliation claim, nor (2) show that Defendant's legitimate, non-retaliatory reasons for placing him on a PIP were pretext for discrimination.

         For the reasons stated below, the court denies Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment.

         II. BACKGROUND [2]

         Plaintiff worked for years as a Supervisory Information Technology Specialist at the Food Safety and Inspection Service of the USDA in Washington, D.C.. Def's Mot. to Dismiss, ECF No. 6 [hereinafter Def's Mot.], Def's Stmt. of Material Facts, ECF No. 6-1 [hereinafter Def's Stmt.], ¶¶ 6, 19; Pl.'s Opp'n to Def's Mot., ECF No. 8 [hereinafter Pl.'s Opp'n], Pl.'s Stmt. of Material Facts, ECF No. 8-1 [hereinafter Pl.'s Stmt.], ¶¶ 6, 19; Compl., ECF No. 1 [hereinafter Compl.], ¶ 1. In 2008, Plaintiff was diagnosed with spinal stenosis and arterial insufficiency, conditions which caused him back and leg pain and made it difficult for him to move. Compl. ¶¶ 12-15. Though he did not make a formal request for accommodation, Plaintiffs employer allowed him to telework two days per week starting in May 2013. Id. ¶¶ 17-18.

         Sometime in January 2015, Plaintiff was informed by his immediate supervisor, Charles Thompson, that two senior-level officials-Janet Stevens and Jennifer Sisto-did not like Plaintiffs teleworking arrangement. Id. ¶ 21. Apparently, that warning prompted Plaintiff, in mid-February 2015, to make a formal request for an accommodation that would permit him to telework “four days per pay period.” Def.'s Stmt. ¶ 16; Pl.'s Stmt. ¶ 16. The Complaint does not indicate whether Defendant ever acted on Plaintiff's request. However, Plaintiff continued, with rare exception, to telework two days per week from the time he made his formal request until he retired in December 2015. Compl. ¶ 44; Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19.

         On April 10, 2015, Plaintiff was placed on a Performance Improvement Plan (“PIP”). Def.'s Mot., Attach. 4, ECF 6-3, at 48-49 [hereinafter Email from Elamin Osman]. According to Plaintiff, his supervisor, Thompson, told him that he did not believe the PIP was justified. Compl. ¶¶ 35-36. Further, according to Plaintiff, Thompson believed that his supervisors- Stevens and Sisto-had directed Thompson to impose the PIP “probably . . . because of the telework schedule.” Compl. ¶¶ 34, 37. Sisto denies that she acted with retaliatory intent. Def.'s Reply, ECF No. 11, Ex. 1, Decl. of Jennifer Sisto, ECF No. 11-1 [hereinafter Sisto Decl.], ¶¶ 16, 20. In an affidavit for this litigation, Sisto states that Plaintiff was placed on a PIP as “a result of [Plaintiff's] continued unacceptable performance of his duties over several months.” Id. ¶ 20. Plaintiff then filed a formal Equal Employment Opportunity complaint on or about June 22, 2015. Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2.

         On March 15, 2016, Plaintiff filed suit in this court under the Rehabilitation Act, advancing only a single claim-that Defendant retaliated against him for engaging in protected activity. See Compl. ¶¶ 115-20. Defendant moved the court to dismiss, or in the alternative, grant summary judgment in his favor. That motion is now ripe and properly before the court.


         A. Motion to Dismiss Standard

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The factual allegations in the complaint need not be “detailed”; however, the Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         In evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must determine whether the plaintiff's complaint meets this requirement. In so doing, the court accepts the plaintiff's factual allegations as true and “construe[s] the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (per curiam) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979), aff'd en banc, 628 F.2d 199 (1980)). The court need not accept as true, however, either “a legal conclusion couched as a factual allegation, ” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “inferences . . . unsupported by the facts set out in the complaint, ” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). If the facts as alleged fail to establish that a plaintiff has ...

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