United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER.
P. Mehta United States District Judge.
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). 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.
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
reasons stated below, the court denies Defendant's Motion
to Dismiss, or in the Alternative, for Summary Judgment.
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.
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.
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.
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.
Motion to Dismiss Standard
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,
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id.
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 ...