Crowley v. Vilsack, 236 F. Supp. 3d 326

Background

Kevin Crowley, a USDA Supervisory IT Specialist with documented spinal and arterial conditions, teleworked two days/week and requested expanded telework as a disability accommodation in February 2015.
On April 10, 2015, Crowley was placed on a Performance Improvement Plan (PIP); he alleges the PIP was retaliation for his accommodation request and that his immediate supervisor thought the PIP was unjustified and linked to senior officials’ displeasure with telework.
Crowley filed an EEO complaint in June 2015 and sued under the Rehabilitation Act in March 2016 alleging a single retaliation claim.
Defendant moved to dismiss for failure to plead an adverse action and, alternatively, for summary judgment arguing lack of causation and that the PIP was a legitimate, non-retaliatory action.
The court denied the 12(b)(6) motion, holding a PIP can be an adverse action in the retaliation context, and denied summary judgment without prejudice because Crowley had not had discovery and submitted a Rule 56(d) affidavit showing needed testimony (notably from his supervisor Thompson) that could establish causation and pretext.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether placement on a PIP is an "adverse action" for retaliation	The PIP was adverse and was imposed because Crowley requested telework as an accommodation	A PIP is not materially adverse absent a significant change in employment status (salary, grade, appraisal)	PIP can be an adverse action in retaliation cases because the standard is whether it would deter a reasonable worker from complaining; denial of dismissal on this ground
Whether Crowley has shown causation between protected activity and PIP	Temporal proximity and alleged statements by supervisors support an inference of causation	Employer asserts continued unacceptable performance was the cause	At pleading stage, two-month proximity plus allegations suffice to infer causation; summary judgment denied to permit discovery
Whether defendant's stated non-retaliatory reason (performance) is pretext	Crowley will seek testimony (e.g., from Thompson) showing directive or motive tied to telework request	Employer asserts PIP was based on months of poor performance	Court found the record undeveloped; plaintiff’s Rule 56(d) affidavit warrants discovery to try to show pretext
Whether summary judgment is proper before discovery	Crowley argues he needs discovery (Rule 56(d)) to obtain key testimony and evidence	Defendant urges judgment now, contending plaintiff cannot meet causation or pretext elements	Court denied summary judgment and granted discovery opportunity, finding Crowley’s Rule 56(d) affidavit met Circuit criteria

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard; plausibility required)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard; factual content requirement)
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (retaliation adverse-action standard: would deter reasonable worker)
Baloch v. Kempthorne, 550 F.3d 1191 (adverse-action standard broader in retaliation context)
Solomon v. Vilsack, 763 F.3d 1 (requesting a reasonable accommodation is protected activity)
Douglas v. Donovan, 558 F.3d 549 (discussed in distinction between discrimination and retaliation adverse-action standards)
Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment principles; nonmoving party must have chance for discovery)
Convertino v. U.S. Dep’t of Justice, 684 F.3d 93 (requirements for Rule 56(d) affidavit)
Ikossi v. Dep’t of Navy, 516 F.3d 1037 (Rule 56(d) specificity requirement)
Hamilton v. Geithner, 666 F.3d 1344 (temporal proximity can support inference of causation)