                                                      UNITED STATES DISTRICT COURT
                                                      FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Kevin Crowley,                            )
                                          )
       Plaintiff,                         )
                                          )
               v.                         )                                Case No. 16-cv-00498 (APM)
                                          )
Tom Vilsack,                              )
Secretary, U.S. Department of Agriculture )
                                          )
       Defendant.                         )
_________________________________________ )


                                                  MEMORANDUM OPINION AND ORDER

I.            INTRODUCTION

              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
																																																													
1
  In his Complaint, Plaintiff states that he is seeking relief under the Rehabilitation Act, but cites 42 U.S.C. § 12101,
et seq., which is the Americans with Disabilities Act (the “ADA”). Both the Rehabilitation Act and the ADA protect
against workplace discrimination on the basis of disability, but the Rehabilitation Act provides the sole remedy for
federal employees alleging such discrimination. See Desmond v. Mukasey, 530 F.3d 944, 952 (D.C. Cir. 2008)
(“The Rehabilitation Act bars federal agencies from discriminating against employees with disabilities”); Graffius v.
Shinseki, 672 F. Supp. 2d 119, 125 (D.D.C. 2009) (“Section 501 of the Rehabilitation Act, codified at 29 U.S.C.
§ 791, is the exclusive remedy for federal employees alleging that federal agencies engaged in disability
discrimination.”). The standards applied to both statutes are the same. See 29 U.S.C. § 794(d) (“The standards used
to determine whether this section has been violated . . . shall be the standards applied under [the ADA].”); see also
Solomon v. Vilsack, 763 F.3d 1, 5 (D.C. Cir. 2014).
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.           BACKGROUND2

              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,

Plaintiff’s 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

Plaintiff’s teleworking arrangement. Id. ¶ 21. Apparently, that warning prompted Plaintiff, in
																																																													
2
  Because Defendant has moved to dismiss for failure to state a claim and for summary judgment, the court will
construe all factual allegations in the Complaint, as well as all record facts, whether disputed or undisputed, in the
light most favorable to Plaintiff.

                                                                          2
	
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.

III.    LEGAL STANDARD

        A.      Motion to Dismiss Standard

        “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim



                                                   3
	
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 stated a claim upon which relief can be granted, then the court must grant the defendant’s

Rule 12(b)(6) motion and dismiss the complaint. See Am. Chemistry Council, Inc. v. U.S. Dep’t

of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).

       B.      Summary Judgment Standard

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.



                                                  4
	
56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the

substantive outcome of the litigation” and “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d

18, 28 (D.D.C. 2015).

       In assessing a motion for summary judgment, the court looks at the facts in the light most

favorable to the nonmoving party and draws all justifiable inferences in that party’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To defeat a motion for summary

judgment, the nonmoving party must put forward “more than mere unsupported allegations or

denials”; its opposition must be “supported by affidavits, declarations, or other competent

evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a

reasonable jury could find in its favor. Elzeneiny, 125 F. Supp. 3d at 28 (citing Fed. R. Civ. P.

56(e)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

IV.    DISCUSSION

       A.      Defendant’s Motion to Dismiss

       Defendant moves to dismiss on the ground that Plaintiff failed to plead an “adverse

action,” a requisite element of a retaliation claim. See Def.’s Mot., Def.’s Mem. in Supp., ECF

No. 6-2 [hereinafter Def.’s Mem.], at 1, 4–5. Specifically, Defendant contends that placing

Plaintiff on a PIP was not a materially adverse action because it did not cause a “significant

change in [his] employment status,” i.e., it did not change his salary, grade, or performance

appraisal. Id. at 4–5. That contention misapprehends the law.

       Defendant relies on cases that stand for the proposition that an employment action is not

“materially adverse” unless it causes a “significant change in employment status.” Def.’s Mem.

at 4 (quoting Douglas v. Donovan, 558 F.3d 549, 553 (D.C. Cir. 2009) and citing Taylor v.



                                                5
	
Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). But those authorities are inapposite, because they

concern the definition of adversity applicable to discrimination claims, not retaliation claims.

There is a difference. “‘Adverse actions’ in the retaliation context encompass a broader sweep of

actions than those in a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198

n.4 (D.C. Cir. 2008). In the retaliation context, instead of requiring a significant change in

employment status to constitute adversity, an action is adverse if it would have “dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Rochon v. Gonzales, 438 F.3d 1211, 1219

(D.C. Cir. 2006).

       As a result of this broader definition of adversity, courts in this jurisdiction consistently

have held that the imposition of a PIP—even one that does not result in a negative impact on

salary, grade or performance appraisal—can constitute an adverse action. Hayes v. Sebelius, 762

F. Supp. 2d 90, 108 (D.D.C. 2011); Kelly v. Mills, 677 F. Supp. 2d 206, 225–26 (D.D.C. 2010);

Chowdhury v. Bair, 604 F. Supp. 2d 90, 96–97 (D.D.C. 2009); see also Francis v. Perez, 970 F.

Supp. 2d 48, 67 (D.D.C. 2013), aff’d per curiam, No. 13-5333, 2014 WL 3013727 (D.C. Cir.

May 16, 2014) (mem.) (holding that a PIP was materially adverse with respect to both

discrimination and retaliation claims). Here, Plaintiff alleges that the USDA placed him on a PIP

because he engaged in protected activity—requesting to telework four days per pay period.

Compl. ¶¶ 27, 115–116; Def.’s Stmt. ¶ 16; Pl.’s Stmt. ¶ 16; Solomon, 763 F.3d at 5 (holding that

“the act of requesting in good faith a reasonable accommodation is protected activity under the

Rehabilitation Act”). At the pleading stage, that is a sufficient allegation of an adverse action to

support a claim of retaliation. Accordingly, the court denies Defendant’s Motion to Dismiss.




                                                 6
	
       B.      Defendant’s Motion for Summary Judgment

       Defendant’s motion for summary judgment, in the alternative, comes before Plaintiff has

had any opportunity to take discovery. Defendant faces an uphill battle, as awarding summary

judgment, in the present posture, is disfavored. See Celotex Corp., 477 U.S. at 322; Liberty

Lobby, 477 U.S. at 257 (explaining that a plaintiff must present affirmative evidence to defeat

summary judgment, but only so “long as the plaintiff has had a full opportunity to conduct

discovery”). For that reason, the Court of Appeals has directed trial courts to grant requests by

nonmoving parties seeking additional time to take discovery under Rule 56(d) “almost as a

matter of course unless the non-moving party has not diligently pursued discovery of the

evidence.” Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995); see also Khan v.

Parsons Global Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir. 2005) (“The court has long

recognized that a party opposing summary judgment needs a reasonable opportunity to complete

discovery before responding to a summary judgment motion and that insufficient time or

opportunity to engage in discovery is cause to defer decision on the motion.” (internal quotation

marks omitted)).    It is not enough, however, for the nonmoving party simply to state in

conclusory fashion that additional time for discovery is needed. Instead, the nonmoving party

must submit an affidavit that “state[s] with sufficient particularity . . . why discovery [is]

necessary.” Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (internal quotation

mark omitted). In Convertino v. U.S. Department of Justice, the Court of Appeals explained that

a Rule 56(d) affidavit must satisfy three requirements:

                First, it must outline the particular facts [the movant] intends to
                discover and describe why those facts are necessary to the
                litigation. Second, it must explain why [the movant] could not
                produce [the facts] in opposition to the motion [for summary
                judgment]. Third, it must show the information is in fact
                discoverable.

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684 F.3d 93, 99–100 (D.C. Cir. 2012) (internal quotation marks and citations omitted).

              Here, Defendant seeks entry of summary judgment in its favor on two grounds: (1)

Plaintiff cannot establish a causal link between his protected activity and the adverse

employment action;3 and (2) Plaintiff has not offered evidence that the USDA’s reasons for its

actions were a pretext for discrimination. See Def.’s Mem. at 1, 8. The court, however, declines

to enter judgment in Defendant’s favor on either ground before Plaintiff has had the opportunity

to take discovery. See Fed. R. Civ. P. 56(d)(1), (2) (authorizing a court to “defer considering the

motion or deny it” or “allow time to obtain affidavits or declarations or to take discovery” if the

nonmovant has shown that “it cannot present facts essential to justify its opposition”).

              Plaintiff’s counsel has submitted a Rule 56(d) affidavit that easily satisfies the three

Convertino factors. See Pl.’s Opp’n, Ex. 1, ECF No. 8-2. In particular, Plaintiff’s counsel

explains that he intends to depose Plaintiff’s former supervisor, Thompson, who is expected to

testify that he told Plaintiff that Plaintiff “was placed on a PIP due to his reasonable

accommodation request.” Id. ¶ 5. Such evidence, if obtained, could demonstrate both (1) that a

causal link exists between Plaintiff’s accommodation request and the PIP, and (2) that

Defendant’s non-retaliatory reason for imposing the PIP was pretextual.                            As previously

explained, courts should grant a nonmoving party additional time to seek relevant discovery

unless the party has not diligently pursued it. See Convertino, 684 F.3d at 99. Here, Plaintiff has




																																																													
3
  Although Defendant did not move to dismiss the Complaint for failure to plead a causal link, the court notes that
the two-month period between Plaintiff’s protected activity, Def.’s Stmt. ¶ 16; Pl.’s Stmt. ¶ 16 (Plaintiff made his
accommodation request to telework four days per pay period on February 10, 2015), and the adverse action, see
Email from Elamin Osman (showing that PIP was imposed on April 10, 2015), is sufficient, at this stage, to
establish an inference of causation. See Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (stating, in a
case under Title VII of the Civil Rights Act of 1964, that “temporal proximity can . . . support an inference of
causation, but only where the two events are very close in time” and that typically three months is the outer limit).

                                                                8
	
satisfied the requirements of Rule 56(d), thereby warranting an opportunity for discovery before

the court addresses the merits of Defendant’s summary judgment motion.4

V.            CONCLUSION AND ORDER

              For the foregoing reasons, the court denies Defendant’s Motion to Dismiss, or in the

Alternative, for Summary Judgment.5




Dated: February 15, 2017                                            Amit P. Mehta
                                                                    United States District Judge




																																																													
4
  By referring to Thompson’s expected testimony only, the court does not mean to imply that discovery will be
limited to deposing Thompson. Plaintiff will be permitted to seek relevant discovery consistent with Rule 26 of the
Federal Rules of Civil Procedure.
5
  In light of the court’s ruling, Plaintiff’s Motion for Leave to File Surreply, ECF No. 12, is denied as moot.

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