Amit P. Mehta, United States District Judge.
Plaintiff Kevin Crowley was employed as an Engineering Branch Chief with the Food Safety Inspection Service at the United States Department of Agriculture ("USDA") from September 2012 to December 2015. On March 20, 2015, USDA approved Plaintiff's request for an accommodation allowing him to telework twice a week because of his disability. A few weeks later, on April 10, 2015, Plaintiff's supervisors placed Plaintiff on a Performance Improvement Plan ("PIP"). As a result, Plaintiff filed a formal Equal Employment Opportunity complaint on June 23, 2015, claiming that the PIP was in retaliation for his Reasonable Accommodation request. Plaintiff ultimately filed this lawsuit
This matter is before the court on Defendant's Renewed Motion for Summary Judgment. For the reasons stated below, the court denies Defendant's Motion.
From 1988 until 2012, Plaintiff worked at the U.S. Department of Commerce in a variety of employment roles. Pl.'s Opp'n to Mot. for Summ. J., ECF No. 27 [hereinafter Pl.'s Opp'n], Ex. 1, ECF No. 27-3 [hereinafter Crowley Dep. II], at 1.
Plaintiff moved to the USDA in September 2012, where he was employed as an Engineering Branch Chief for telecommunications and network operations in USDA's Food Safety Inspection Service ("FSIS") until his retirement on December 31, 2015. Id. at 1; see Def.'s Renewed Mot. for Summ. J., ECF No. 26 [hereinafter Def.'s Mot.], Def.'s Statement of Material Facts as to Which There Is No Genuine Issue, ECF No. 26 [hereinafter Def.'s Stmt.], ¶ 1; Pl.'s Opp'n, Statement of Material Facts for Which There Is a Genuine Dispute, ECF No. 27-1 [hereinafter Pl.'s Stmt.], ¶ 1. From mid-2013 until his retirement, and even before his Reasonable Accommodation request was approved on March 20, 2015, see infra, Plaintiff teleworked two days a week. Def.'s Mot., Attach. 1, ECF No. 26-1 [hereinafter Crowley Dep. I], at 28; see Def.'s Stmt. ¶ 15; cf. Pl.'s Stmt. ¶ 15.
In October 2014, Rivera left USDA and Charles Thompson, Plaintiff's peer, was appointed as Plaintiff's acting first-line supervisor. Def.'s Mot., Ex. 1, Attach. 2, ECF No. 26-1 [hereinafter Sisto Dep. I], at 52; Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7. In order to make the transition smoother, Plaintiff's second-line supervisor, Jennifer Sisto, provided oversight on telecommunications issues. Sisto Dep. I at 52; see Def.'s Stmt. ¶ 9; Pl.'s Stmt. ¶ 9.
According to Defendant, when Sisto began providing oversight, she began to express concerns with Plaintiff's performance. Def.'s Stmt. ¶ 20. For example, Sisto noticed that some telecommunication accounts for people who had left USDA years before were still open and that the agency therefore continued to pay for those accounts unnecessarily. Sisto Dep. I at 53; see Def.'s Stmt. ¶ 20. On at least one occasion, she called Plaintiff into her office to discuss those accounts, as it was Plaintiff's responsibility to ensure that they were closed properly. Sisto Dep. I at 53; see also Def.'s Mot., Ex. 1, Attach. 4 [hereinafter Sisto Decl.], at 63, ¶ 5. Sisto also noticed that six conference lines were still open — despite one employee assigned to one of the conference lines having left two years ago — and instructed Plaintiff to close the lines. Sisto Decl., Attach. 1 [hereinafter Sisto Emails], at 71. Similarly, Sisto informed Plaintiff of lines open for personnel who had since left the agency, staff with more than one line open, loaner devices that had been out for more than four years, and numerous devices being paid for with no one assigned to them. Id. at 72. Sisto instructed Plaintiff to review this information at least quarterly to ensure that the agency was not overspending. Id.
Defendant contends that concerns with Plaintiff's performance extended to other areas as well. For instance, on December 8, 2014, Thompson emailed Plaintiff asking him to stay up to date on tickets made for service outages, some of which were up to two months old. Sisto Decl. at 64-65, ¶ 10. Moreover, according to Sisto, she was frequently contacted about issues in areas falling under Plaintiff's responsibility, such as a "lack of prompt service restoral of down telecom connectivity." Id. Additionally, on February 24, 2015, Janet Stevens — Plaintiff's third-line supervisor — emailed Plaintiff about two offices that had lost their telecommunications for days due to lack of payments on their invoices. Sisto Emails at 75-76; see Def.'s Stmt. ¶ 10; Pl.'s Stmt. ¶ 10.
On March 3, 2015, Thompson emailed Sisto and Stevens to inform them that he had spoken with Plaintiff and informed him that he would be suspending Plaintiff and his team's telework due to poor performance (though telework was not actually suspended, as Plaintiff had a pending Reasonable Accommodation request at the time). See Pl.'s Opp'n, Ex. 5, ECF No. 27-7 [hereinafter Keegan Rep.], at 8. On March 9, 2015, Stevens handled some outstanding tickets that Plaintiff had not yet addressed. Sisto Emails at 83. On March 17, 2015, Sisto emailed Plaintiff asking him for updates that he was late in providing. Id. at 87. Similarly, on March 26, 2015, another USDA employee asked Plaintiff about open lines for which FSIS was paying. Id. at 80-81. Apparently, FSIS continued to receive invoices for the lines into February 2015, even though Plaintiff had told the budgeting office that the lines should only be funded through December 2014 because they were going to be closed. See id. According to the record, Plaintiff was unresponsive to these sorts of inquiries until the issues were raised with Sisto. Sisto Decl. at 64, ¶ 8.
On April 2, 2015, a manager at FSIS' Atlanta office emailed others in FSIS
Plaintiff contests the foregoing narrative to the extent it suggests a problem with his performance. See Pl.'s Stmt. ¶ 20. Plaintiff claims that when Sisto and Stevens began scrutinizing his work, "there was nothing said about performance." Id. Instead, Plaintiff says, Sisto's and Stevens's scrutiny merely consisted of general "business as usual inquiries into what was happening with certain items," and Plaintiff responded to those inquiries immediately once he was aware of their existence. Id. (citing Crowley Dep. II at 12-15).
Plaintiff also claims that the aforementioned issues were present even before he began his tenure at USDA. Crowley Dep. II at 12-14; see Pl.'s Stmt. ¶ 20. For example, Plaintiff explains that he had to close multiple tickets that had been open for years when he first joined USDA in 2012 and that his team only started to get ahead of those issues in 2014. Crowley Dep. II at 13; cf. Pl.'s Stmt. ¶ 20. Moreover, Plaintiff asserts that part of the reason for lines remaining open was the lack of a formal "out-boarding process," whereby managers could notify the telecommunications team if someone was leaving their division. Crowley Dep. II at 16. Because no such process existed within the agency, Plaintiff says he was not aware of who was leaving the agency and when, and thus he did not know whose accounts to close and when to do so. Id. Additionally, Plaintiff notes that he had three vacancies on the telecommunications team during this time, which, combined with the increase in workload, made fulfilling requests difficult. Id. at 6-7.
In the midst of the above events, on February 13, 2015, Plaintiff filed a "Reasonable Accommodation" request with USDA, asking to telework four days per pay period based on his disability — spinal stenosis and arterial insufficiency.
Sisto and Stevens discussed issuing the PIP to Plaintiff with Thompson sometime in "early 2015." Def.'s Mot., Attach. 2, ECF No. 26-1 [hereinafter Thompson Decl.], at 60, ¶ 5. On April 3, 2015, Thompson called a member of Employee Relations to inquire about how to issue a PIP to one of his employees. Pl.'s Opp'n, Ex. 3, ECF No. 27-5 [hereinafter Pl.'s Ex. 3], at 63. Thompson signed and dated the PIP April 10, 2015, the last day he held his position as Plaintiff's supervisor before the position was filled by Elamin Osman. Id. at 66; see Pl.'s Ex. 2 at 14. Shortly thereafter, on April 24, 2015, Osman and Sisto presented the PIP to Plaintiff. Pl.'s Ex. 3 at 69; cf. Def.'s Stmt. ¶ 22; Pl.'s Stmt. ¶ 22. The PIP states that Plaintiff was placed on the PIP because he failed to reach a "fully successful" level in two critical elements of his performance as a Supervisory IT Specialist. Pl.'s Ex. 2 at 14. It also lays out specific examples of what Plaintiff needed to accomplish in 60 days in order to reach the "fully successful" level, such as "meeting 90% of all deadlines" and "identify[ing]... costs for 80% of all [Engineering-Branch] managed hardware and software." Id. at 16.
On June 19, 2015, Osman sent Sisto an email indicating that he was meeting with Plaintiff later that day and that he intended to close out the PIP, as Plaintiff had met the expectations required of him. Pl.'s Ex. 3 at 70; see also Pl.'s Opp'n, Pl.'s Ex. 4, ECF No. 27-6 [hereinafter Sisto Dep. II], at 21. The PIP had a start date of April 24, 2015, and a proposed end date of June 22, 2015.
Plaintiff filed an informal Equal Employment Opportunity ("EEO") complaint on May 15, 2015, and a formal EEO complaint on June 23, 2015, claiming in both that USDA had initiated the PIP because of Plaintiff's Reasonable Accommodation request. See Pl.'s Ex. 2 at 1-2. Plaintiff now also claims that the PIP was extended beyond its original June 23, 2015 end date because he had filed EEO complaints. See Compl., ECF No. 1, ¶ 117. The record supports Plaintiff's claim that the PIP was extended beyond the original 60-day period. According to an email from Osman to Plaintiff on July 15, 2015, Osman and Plaintiff were still meeting to discuss the PIP at that time, suggesting that the PIP had not been closed out on June 19, 2015, as Sisto believed it had been. Pl.'s Opp'n, Ex. 6, ECF No. 27-8 [hereinafter Pl.'s Ex. 6], at 3. In that same email, Osman recommends that he and Plaintiff continue their weekly meetings before making an assessment on August 15, 2015. Id. In a September 17, 2015 email, Osman again reached out to Plaintiff regarding the PIP. Id. at 1.
The PIP did not officially end until November 10, 2015, when Osman issued a document stating that the PIP had ended. Crowley Dep. I at 43.
On March 15, 2016, Plaintiff filed this action against Defendant under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq., which prohibits federal employers from discriminating and retaliating against employees based on a disability. See 29 U.S.C. § 791(f) (incorporating certain provisions of the Americans with Disabilities Act ("ADA") that relate to employment, including, among others, 42 U.S.C. §§ 12112 and 12203); 42 U.S.C. § 12112 (discrimination); 42 U.S.C. § 12203 (retaliation); see generally Compl. In his Complaint, Plaintiff alleges that USDA retaliated against him for engaging in protected activities — namely, for filing a Reasonable Accommodation request on February 13, 2015, and filing informal and formal EEO complaints on May 15, 2015, and June 23, 2015, respectively. See Compl. ¶¶ 114-21.
On July 13, 2016, Defendant filed a Motion to Dismiss, or in the Alternative, for Summary Judgment on the grounds that Plaintiff could not establish (1) that he was subject to an adverse employment action by virtue of being placed on the PIP; (2) that a causal link existed between his protected activity and the PIP; or (3) that Defendant's stated reason for placing him on the PIP was pretext for retaliation. See Def.'s Mot. to Dismiss, Mem. of Points & Authorities in Supp., ECF No. 6-2, at 1. On February 15, 2017, the court denied Defendant's Motion to Dismiss, holding that the imposition of a PIP "can constitute an adverse employment action" in the retaliation context. See Mem. Op. & Order, ECF No. 13 [hereinafter Mem. Op.], at 5-6.
Defendant renewed his motion for summary judgment on November 8, 2017. See Def.'s Mot. That motion is now ripe for the court's consideration.
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment 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. 56(a). Defendant, as the moving party, has the "burden of coming forward with proof of the absence of any genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because credibility determinations and the weighing of evidence are functions for the jury and not the judge, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
"A dispute over a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006) (internal quotation marks omitted). The inquiry of the court, therefore, is not to determine which side has the better case, but to determine if there is "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. When opposing a motion for summary judgment, however, the non-movant "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 256, 106 S.Ct. 2505. If the evidence, even taking all inferences in the light most favorable to the non-movant, is "so one-sided" that no jury could reasonably find for the non-movant, then summary judgment should be granted. Id. at 252, 106 S.Ct. 2505. Accordingly, the burden on Defendant in the instant case is to demonstrate "that there is an absence of evidence to support [Plaintiff's] case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.
The Rehabilitation Act of 1973, as amended, "requires that federal employers provide `reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.'" Doak v. Johnson, 798 F.3d 1096, 1098 (D.C. Cir. 2015) (quoting 42 U.S.C. § 12112(b)(5)(A), a provision of the ADA incorporated into the Rehabilitation Act, see 29 U.S.C. § 791(f)). As relevant here, the Rehabilitation Act "also prohibits retaliation against an individual for exercising [his] rights under the Act." Id. at 1099; see 42 U.S.C. § 12203; 29 U.S.C. § 791(f).
Where, as in this case, there is no direct evidence of retaliation, the court must follow the familiar burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 650-51 (D.C. Cir. 2003); see Doak, 798 F.3d at 1107. Under that framework, a plaintiff must first establish a prima facie case of retaliation by showing that (1) he "engaged in statutorily protected activity"; (2) he "suffered a materially adverse action by [his] employer"; and (3) "a causal link connects the two." Doak, 798 F.3d at 1107 (internal quotation marks omitted). "If a prima facie case is established, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its action." Id. (internal quotation marks omitted). This burden, however, is one of production; the employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Rather, to satisfy its burden, the employer "must clearly set forth, through the introduction of admissible evidence, the reasons for [the adverse action]." Id. at 255, 101 S.Ct. 1089. "Once the employer does so, the plaintiff must respond with sufficient evidence to create a genuine dispute on the ultimate issue of retaliation by showing either directly that a discriminatory reason more likely motivated the employer, or indirectly that the employer's proffered explanation is unworthy of credence." Doak, 798 F.3d at 1107 (internal quotation marks omitted).
Defendant moves for summary judgment as to Plaintiff's retaliation claims on two grounds. First, as to the claim that Defendant retaliated against Plaintiff for his Reasonable Accommodation request by placing Plaintiff on the PIP, Defendant argues that Plaintiff cannot establish that Defendant's reasons for placing Plaintiff on the PIP were pretext for a retaliatory motive. Second, as to the claim that Defendant retaliated against Plaintiff for his EEO activity by extending the PIP, Defendant argues only that Plaintiff cannot establish a prima facie case of retaliation in response to Plaintiff's EEO activity; he does not, notably, offer a non-retaliatory reason for extending the PIP. Plaintiff claims that there are genuine issues of material fact such that a reasonable jury could find in his favor on both grounds.
For the reasons stated below, the court denies Defendant's Motion for Summary Judgment.
Plaintiff claims that he was placed on the PIP in retaliation for filing his Reasonable Accommodation request. See Compl. ¶¶ 114-21. Defendant does not dispute that Plaintiff has made out a prima facie case of retaliation. See Def.'s Mot., Mem. of Points & Authorities in Supp. [hereinafter Def.'s Mem.], at 4. Instead, he asserts a legitimate, non-discriminatory reason for placing Plaintiff on the PIP: poor performance. Id. at 4-6. When questioned about why Plaintiff was put on the PIP, Sisto stated that "[t]here was money being wasted.... Things weren't being corrected. Responsiveness was down. Restoral of services was down." Sisto Dep. I at 57. Sisto testified that these were all responsibilities of Plaintiff and his team. Id. at 56. In addition, there are numerous emails on the record that document instances where payments were missed, accounts were not closed, and tickets were left open, which necessitated Plaintiff's supervisors to reach out to him directly to deal with the issues — or, in some cases, necessitated Plaintiff's supervisors to deal with the issues themselves. See Sisto Decl. at 63-66, ¶¶ 4-15. Thus, having produced evidence showing a legitimate reason for placing Plaintiff on the PIP, the remaining question for the court is "whether [Plaintiff] produced sufficient evidence for a reasonable jury to find that [Defendant's] asserted... non-retaliatory reason was not the actual reason and that [Defendant] intentionally ... retaliated against [Plaintiff]." Ames v. Nielsen, 286 F.Supp.3d 70, 79 (D.D.C. 2017) (quoting Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)).
Plaintiff's evidence of pretext includes (1) the temporal proximity of the Reasonable
As noted above, Plaintiff first points to temporal proximity in support of pretext. While "a close temporal relationship may alone establish the required causal connection" to make out a prima facie case of retaliation, Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003), temporal proximity alone is not enough to prove pretext. As the D.C. Circuit has observed, "[i]f temporal proximity sufficed to rebut a legitimate proffer, then protected activities would effectively grant employees a period of immunity, during which no act, however egregious, would support summary judgment for the employer in a subsequent retaliation claim." Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).
In this case, Plaintiff's supervisors first learned of his Reasonable Accommodation request on March 3, 2015. Sisto Decl. at 66, ¶ 19. And, while Thomas signed and dated Plaintiff's PIP April 10, 2015, Thomas first called Human Resources to ask about the PIP on April 3, 2015. Pl.'s Ex. 3 at 63, 66; see also Pl.'s Ex. 2 at 14. This close-in-time relationship between Plaintiff's protected activity and the adverse action, although not sufficient by itself to establish pretext, does weigh in favor such a finding.
Plaintiff also relies on an email between Sisto and Stevens concerning the equity of employees' teleworking arrangements as evidence of pretext. Pl.'s Opp'n, Mem. in Supp., ECF No. 27-2 [hereinafter Pl.'s Mem.], at 5-6; see also Pl.'s Ex. 3 at 1. Specifically, on December 4, 2014, Stevens forwarded an email to Sisto attaching a telework participation report for Stevens and Sisto's program area. Pl.'s Ex. 3 at 1. In that email, Stevens told Sisto that they "[n]eed to discuss the equity of this[.]" Id. In her deposition, Sisto explained that she and Stevens were discussing whether "people were implementing the policy equitably" to ensure that they "didn't have disparity going on where some supervisors were saying nobody could telework, and some people were saying you can telework as much as you want." Sisto Dep. II at 8.
Plaintiff asks the court to infer from this "equity email" that Plaintiff's supervisors issued the PIP in retaliation for his request to telework. Pl.'s Mem. at 5-6. While the court is required to draw all inferences in the Plaintiff's favor, those inferences still must be "reasonable." See Williams, 938 F.Supp. at 49. In this case, Plaintiff's favored inference is not a reasonable one given Sisto's unrebutted explanation of its meaning and the timing of Plaintiff's Reasonable Accommodation request. First, Sisto explained in her deposition exactly what the statement in Stevens's email meant, and Plaintiff has offered no evidence that this general email was specific to him in any way. There is no evidence on the record to suggest that Sisto and Stevens discussed between themselves how Plaintiff's specific telework situation was
In his Complaint, Plaintiff alleged that Thompson informed him that he was being placed on the PIP in retaliation for teleworking and that Thompson disagreed with the reasons that Plaintiff was placed on the PIP. See Compl. ¶¶ 30-37, 43-47, 56-59. Now, Plaintiff wishes to rely on those assertions to defeat summary judgment. But Plaintiff offers no evidence to support that Thompson ever made such statements. He did not depose Thompson or obtain an affidavit from him. Nor is there deposition testimony or an affidavit from Plaintiff in the record attesting to what Thompson purportedly told him about the PIP. See generally Crowley Dep. I; Crowley Dep. II. Indeed, the only record evidence about what Thompson said or did not say comes from a brief affidavit obtained by Defendant from Thompson, in which he denies ever having had any conversation with Plaintiff about the PIP. Thompson Decl. at 59-60, ¶¶ 3-5. Because Plaintiff's assertion about what Thompson said rests on "mere allegation[s] ... of his pleading," Anderson, 477 U.S. at 256, 106 S.Ct. 2505, he cannot rely on them to defeat summary judgment.
Alternatively, Plaintiff relies upon statements made by Thompson during the EEO investigation of pretext, specifically Thompson stated that he did "not agree or disagree" as to whether placing Plaintiff on a PIP was warranted, see Pl.'s Ex. 2 at 6. Plaintiff asks the court to infer from these statements that Thompson did not agree with putting Plaintiff on the PIP. Pl.'s Mem. at 23. The court, however, cannot draw the suggested inference here, as Thompson's statement is simply too ambiguous. Moreover, even if Thompson did view the PIP as unwarranted, such evidence is of little probative value. According to Thompson, it was Sisto who made the decision to put Plaintiff on the PIP, see Pl.'s Ex. 2 at 6, and, therefore, the only relevant appraisal of Plaintiff's work is Sisto's as the decision maker, not Thompson's. See Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (noting that "the issue is ... whether the employer honestly believes in the reasons it offers" for the challenged action, not "the correctness" of the reasons). Plaintiff has produced no evidence that Thompson played any role in deciding to place Plaintiff on the PIP, as opposed to merely executing the instructions of his superiors to do so.
Accordingly, the record lacks any probative evidence as to Thompson's views that would support an inference of pretext.
Moving onto Plaintiff's prior success as evidence of pretext, Plaintiff points out that he has "received above average performance ratings dating all the way back to the 1990s." Pl.'s Mem. at 11. The court notes, however, that an "employer's description of an employee's performance as unsatisfactory will not be deemed pretextual just because the employee was
Nor do Plaintiff's protestations to the proffered reasons for the PIP establish pretext. Plaintiff offers a rebuttal for why his performance fell short — namely that it was not his fault, as his team was understaffed and already behind even before Plaintiff began working at USDA. Crowley Dep. II at 13-14. But he does not dispute that his supervisors honestly and reasonably believed that his work fell short of expectations. See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) ("The question is not whether the underlying [incident warranting termination] occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying [incident warranting termination] occurred."). Accordingly, he cannot rely on his proffered "extenuating circumstance" for his criticized work as evidence of pretext. Waterhouse v. District of Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002) (holding that the plaintiff's evidence — that there were "extenuating circumstances" outside the plaintiff's control causing her poor performance — was insufficient to establish that her "employer's proffered explanation [was] unworthy of credence," especially given the fact that the plaintiff admitted that the underlying incidents forming the defendant's proffered reason did occur (alteration in original)).
Accordingly, Plaintiff's prior successful performance does not support an argument of pretext, nor do his explanations for his performance issues prove that Defendant's proffered reasons are unworthy of credence.
Plaintiff also relies on the expert testimony of Michael Keegan concerning the PIP. See generally Keegan Rep. Keegan has twelve years of experience in management positions in federal agencies, including preparing and executing PIPs. Id. at 9-10. While Defendant does not dispute Keegan's credentials to opine on the PIP, see Def.'s Reply, ECF No. 29, at 5-6, he does ask the court to find Keegan's proposed opinion testimony to be "inaccurate and speculative" under Federal Rule of Evidence 702, see id. at 6. Thus, at least implicitly, Defendant asks the court to exclude the Keegan Report. See id. (stating that Keegan's report "should not be relied upon").
Courts must proceed "cautious[ly]" when deciding whether to exclude expert testimony at the summary judgment stage. Carmichael v. West, No. 12-cv-1969, 2015 WL 10568893, at *7 (D.D.C. Aug. 31, 2015) (citation omitted). Chief Judge Howell's discussion in Carmichael on the subject is instructive and thus merits quotation in full:
Id. Thus, consistent with Carmichael, the court views Defendant's Rule 702 argument "with great care and circumspection." Id. (quoting Cortes-Irizarry, 111 F.3d at 188).
Keegan's expert report and the opinion he proffers are not free from problems. Indeed, some are obvious. For example, Keegan's ultimate opinion is that the PIP "didn't comply with the requirements of the Code of Federal Regulations." Keegan Rep. at 14. The D.C. Circuit has held, however, that expert testimony cannot contain "legal conclusions." Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997). While "an expert may offer his opinion as to facts that, if found, would support a conclusion that the legal standard at issue was satisfied ... he may not testify as to whether the legal standard has been satisfied." Id. at 1213. Thus, while Keegan is able to testify as to the specific facts he found and whether the PIP is consistent with regulatory requirements and best practices, he may not express the legal opinion that the PIP violated federal regulations. Accordingly, Keegan's opinions that embrace legal conclusions are not admissible and may not be taken into account by the court.
Additionally, the basis for Keegan's testimony is opaque. Keegan's report does not clearly state what evidence he actually reviewed to form his opinions. Keegan identifies a short list of materials that he "considered in formulating [his] opinion," Keegan Rep. at 14, yet at the same time broadly states that his conclusions are based on "Crowley's legal complaint,
Clear factual errors in Keegan's report only underscore this concern. For example, Keegan states, without further explanation, that "[t]here is nothing in the agency document production ... that document any specific deficiencies with Mr., (sic) Crowley's performance and the justification for the PIP." Id. at 12. The record, of course, contains numerous examples to the contrary. See, e.g., Sisto Emails. Elsewhere, he states that, "[s]ubsequent to Mr. Crowley being placed on a PIP, he submitted a formal request for Reasonable Accommodation." Keegan Rep. at 11. However, the exact opposite is true: Plaintiff claims that he was retaliated against with a PIP because of his Reasonable Accommodation request. See Pl.'s Mem. at 16-23. Keegan's struggle with basic facts is worrisome.
Notwithstanding the deficiencies of Keegan's report, the court is not prepared to exclude it altogether at this stage.
Considering then what is potentially proper expert testimony, Keegan aids Plaintiff's assertion of pretext. One way that an employee can prove his employer's stated reason is pretext is by pointing to the "employer's failure to follow established procedures or criteria." Brady, 520 F.3d at 495 n.3. Here, a reasonable jury could find that the deficiencies in preparation and execution of the PIP that Keegan identifies, see Keegan Rep. at 11-14, are evidence that the true motive behind the PIP was not to improve Plaintiff's performance, but to punish him for seeking reasonable accommodation. Thus, portions of Keegan's testimony create a genuine dispute of fact as to the question of pretext.
Finally, Plaintiff points to the extension of his PIP past its expected end date of June 22, 2015, as evidence of pretext, arguing that the extension shows that the PIP was not meant to actually bring Plaintiff's performance to an acceptable level but to punish him for a longer period of time. Pl.'s Mem. at 22. The PIP formally began on April 24, 2015, had an expected duration of 60 days, and had an expected end date of June 22, 2015. Pl.'s Ex. 3 at 65. Defendant asserts that Plaintiff was placed on the PIP because of "poor performance," Def.'s Mem. at 6, and, according to Sisto, the goal of the PIP was "to improve [Plaintiff's]
It bears repeating that the court views this as a close case. But viewing all the evidence in the light most favorable to Plaintiff, the combination of the close temporal proximity of the PIP and the Reasonable Accommodation request; the deficiencies of the PIP; and the unexplained, undocumented extension of the PIP for months after the initial 60-day period, the court concludes that a reasonable jury could find that Plaintiff was placed on the PIP in retaliation for his Reasonable Accommodation request. Accordingly, the court denies Defendant's Motion for Summary Judgment with respect to Plaintiff's claim that he was placed on the PIP in retaliation for his Reasonable Accommodation request.
Plaintiff also claims that Defendant retaliated against him for his EEO activity by extending the PIP beyond the expected end date of June 22, 2015, despite Plaintiff having met the PIP's performance objectives by June 19, 2015. See Pl.'s Mem. at 24-25. Defendant's sole response to this claim is that Plaintiff has failed to make out a prima facie case; he does not advance a non-retaliatory reason for the extension. Defendant asserts that Plaintiff falls short on two elements: (1) the extension of the PIP does not constitute an adverse action, and (2) Plaintiff cannot establish a causal link between his EEO activity and the continuation of the PIP. See Def.'s Mem. at 8-9. The court concludes otherwise.
This court already has held, in the context of Defendant's motion to dismiss, "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." Mem. Op. at 6. The question here is slightly different and appears to be one of first impression: Whether the continuation of a PIP beyond its expected end date constitutes material adversity for purposes of a retaliation claim. Based on the record evidence, the court finds that in this case it does.
"`Adverse Actions' in the retaliation context encompass a broader
The continuation of Plaintiff's PIP in this case satisfies the Burlington Northern standard. Plaintiff's PIP specifically states that should Plaintiff not meet the "Fully Successful" level in his performance reviews, then "the Agency is bound by statute to remove [him] from Federal service, demote [him] to a lower grade, or reassign [him] to another position." Pl.'s Ex. 2 at 14. Furthermore, according to Keegan, remaining on a PIP can result in "[d]isqualification from any applicable performance bonus or incentives," and hiring managers in other departments will frequently look at parts of the employee's record, such as PIPs, when making hiring decisions. Keegan Rep. at 13. Thus, the consequences of not meeting a PIP's objectives are stark. Yet, without apparent regard for these consequences, Defendant in this case left Plaintiff on a PIP for months after Plaintiff met its objectives. The PIP began on April 24, 2015, but did not end until November 10, 2015. Pl.'s Ex. 3 at 65; Crowley Dep. I at 43. Plaintiff satisfied the PIP in early June, see Sisto Dep. II at 21, yet the undisputed evidence shows that his superiors blithely kept the PIP hanging over his head, providing him with no explanation for why his job and his future prospects remained at risk if he failed to perform. Thus, a reasonable jury could conclude that Plaintiff's having to work under such uncertain conditions for an extended period constitutes an adverse action.
As discussed above, "a close temporal relationship may alone establish the required causal connection" for purposes of satisfying a plaintiff's prima facie case. Singletary, 351 F.3d at 525. Here, the temporal proximity between the protected activity and adverse action easily satisfies the prima facie causation element. Plaintiff filed his informal EEO complaint on May 15, 2015. Pl.'s Ex. 2 at 1. One month later, on June 19, 2015, Osman emailed Sisto to inform Sisto that he had a meeting planned with Plaintiff and intended to discuss with Plaintiff that he had reached an acceptable level of performance and that Osman therefore would close out the PIP. See Pl.'s Ex. 3 at 70; Sisto Dep. II at 16 (Sisto testimony that "Mr. Osman had told us that ... he felt that Mr. Crowley's performance had improved to an acceptable level and he could come off the PIP" in early June). Yet, without explanation, Plaintiff remained on the PIP. Then, on June 23, 2015, Plaintiff filed his formal EEO complaint alleging that his placement on the PIP was in retaliation for his Reasonable Accommodation request. Pl.'s Ex. 2 at 1. On July 15, 2015, Osman sent an email with the subject line "PIP" stating that he "did not have time to meet last Friday" and giving Plaintiff a list of objectives regarding the PIP, clearly showing formal continuation of the PIP. Pl.'s Ex. 6 at 3. On September 14, 2015, Osman emailed Plaintiff to state that he "intends to make a final assessment and recommendation regarding the PIP status on Friday 09/18/2015." Id. at 2-3. On November 10, 2015, the PIP was closed out. Crowley
For the foregoing reasons, the court finds that a reasonable jury could find that Defendant retaliated against Plaintiff both for Plaintiff's Reasonable Accommodation request and his EEO activity by placing him on, and ultimately extending, the PIP. Accordingly, the court denies Defendant's Motion for Summary Judgment.
