UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDY GORDON ) ) Plaintiff, ) ) v. ) Civil Case No. 12-00671 (RJL) ) UNITED STATES CAPITOL POLICE, ) ) DefundanL )

MEMORAND~PINION February /1J, 2013 [# 3]

Plaintiff Judy Gordon alleges that her employer, defendant United States Capitol

Police, interfered with her rights and committed retaliation as prohibited under the

Family and Medical Leave Act ("FMLA"),

et seq. 1 Defendant has

moved to dismiss the complaint for failure to state a claim of either interference or

retaliation. Upon consideration of the parties' pleadings and the relevant law,

defendant's Motion to Dismiss is GRANTED.

BACKGROUND

Plaintiff works as a uniform police officer during the overnight shift. Compl. ~~

7-8 [Dkt. # 1]. On May 6, 2011, plaintiff submitted a request to defendant's Office of

Human Resources for a bank ofFMLA leave to be used at future, unspecified dates. !d.

~~ 11-12. In the request, plaintiff stated that she experienced intermittent depression due

to her husband's suicide in October 2010. !d. ~ 9, 13. Plaintiffs FMLA request was

1The FMLA is applicable to federal employees in the legislative branch pursuant to the Congressional Accountability Act ("CAA").

(a)(5), 1312. 1 approved with 240 hours of leave on May 20, 2011. !d. ~ 14. Two months later, plaintiff

said she learned through a police captain that the police inspector was "mad" that FMLA

requests were being granted without his knowledge; the captain said that the inspector

vowed to "find a problem with her FMLA request." !d. ~~ 29-31.

On July 20, 2011, plaintiff was informed that, due to the same facts underlying her

FMLA leave request, her police powers would be revoked pending a fitness for duty

exam ("FFDE"). !d. ~~ 18-19. Instead of following its typical practice of scheduling

duty status conferences one business day following the revocation of police powers,

defendant scheduled plaintiff's conference three business days after her revocation. !d.

~~ 43-44. Plaintiff was temporarily reassigned to a light duty administrative position

during her regular tour of duty while awaiting her FFDE. !d. ~~ 22-34. In this

administrative position, plaintiff was unable to work two days of overtime she had

previously scheduled. !d. ~ 25.

As part of her FFDE, plaintiff was required to submit medical information and

meet with a doctor to complete a medical exam. !d.~~ 32-42. The medical exam

included more than 900 written questions and an interview. !d. ~ 47. The doctor

concluded that plaintiff was fit for duty, and plaintiff's police powers were reinstated on

July 26, 2011. !d. ~~ 48-49. 2

On October 16, 2011, plaintifflearned that she was scheduled to attend an active

shooter training session during daytime hours on October 18-20, 2011. !d. ~~ 53. Due to

2 The complaint incorrectly identifies the date of her police powers reinstatement as July 26, 2012. See Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") [Dkt. # 4] at 4 n.3. 2 the upcoming anniversary of her husband's death, the stress from her sister's recent

death, and a scheduled appointment with her therapist, plaintiff requested use of her

FMLA leave to miss the scheduled training.

~~54-56. Plaintiffs supervisor allegedly

was irate that plaintiff would miss the training and demanded a doctor's note to justify

the leave request. ld. ~~58-59. After initially "refus[ing]" to approve plaintiffs FMLA

request, he eventually granted her request. I d. ~ 58, 61.

After unsuccessful mediation, plaintiff received a notice of the end of mediation

on February 1, 2012.

~ 1. She filed the above-captioned matter on April27, 2012.

!d.

STANDARD OF REVIEW

Defendant moves to dismiss the amended complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure on the ground that it fails to state a claim upon

which relief can be granted. Motion to Dismiss ("Def.'s Mot.'') [Dkt. # 3] at 1. In

evaluating defendant's Motion to Dismiss, the Court must "treat the complaint's factual

allegations as true" and "grant plaintiff the benefit of all inferences that can be derived

from the facts alleged." Sparrow v. United Air Lines, Inc.,

(D.C.

Cir. 2000) (internal quotation marks and citation omitted).

"While a complaint attacked by a Rule 12(b)( 6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v.

Twombly,

(2007) (internal quotation marks and citations omitted).

3 Rather, the complaint "must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face." Ashcroft v. Iqbal,

(2009) (internal quotation marks and citation omitted). "[T]he court need not accept

inferences drawn by plaintiffl] if such inferences are unsupported by the facts set out in

the complaint." Kowal v. MCI Commc 'ns Corp.,

(D.C. Cir. 1994).

Indeed, where a court cannot infer more than the mere possibility of misconduct from the

facts, "the complaint has alleged-but it has not shown-that the pleader is entitled to

relief." Iqbal,

(internal quotation marks and citation omitted).

ANALYSIS

Plaintiff brings two types of claims under the FMLA: an interference claim and a

retaliation claim. Compl. ,-r,-r 65-89; see also Breeden v. Novartis Pharm. Corp.,

(D.C. Cir. 2011) (recognizing two claims). 3 Under an interference claim, plaintiff

must demonstrate that her employer "interfere[ d] with, restrain[ ed], or den[ied] the

exercise of or the attempt to exercise" her FMLA rights.

(a)(l). A

retaliation claim requires plaintiff to show that her employer "discharge[d) or in any other

manner discriminate[ d] against [her] for opposing any practice made unlawful" under the

FMLA. !d.§ 2615(a)(2). 4 Because plaintiffhas failed to state a claim of either

3 While the FMLA does not label these two claims as ones of "retaliation" and "interference," "those are the labels courts have used in describing an employee's conduct under the Act." Hopkins v. Grant Thornton Intern.,

, 152 n.6 (D.D.C. 2011) (citing Strickland v. Water Works and Sewer Bd. of City ofBirmingham,

, 1207 n.9 (11th Cir. 2001)). As such, the term retaliation will be used in this opinion to describe prohibited discriminatory or retaliatory conduct under the Act, whether it is under§ 2615(a)(l) or§ 2615(a)(2). 4 Plaintiff submits that a "retaliation" claim is cognizable under either § 2615(a)(l) or§

4 interference or retaliation under the FMLA, plaintiffs complaint, for the following

reasons, must be dismissed.

A. Interference Claim

Plaintiff fails to state a claim of interference under the FMLA. To state a claim of

interference, plaintiff must show that she was entitled to an FMLA benefit that was

denied to her. Strickland, 239 F.3d at 1206-07. Plaintiff requested FMLA leave on two

occasions: in May 2011 and in October 2011. Compl. ~~ 12, 53, 56. Both of these

requests were granted. /d.~~ 14, 61. Absent evidence ofthe denial of any FMLA

benefits, plaintiff fails to present a traditional interference claim.

It is true that an interference claim "would include, for example, not only refusing

to authorize FMLA leave, but discouraging an employee from using such leave."

(b). Yet even in cases where an employer discouraged an employee from

using FMLA leave, the employee still must show that the employer denied the employee

entitlements under the FMLA. See Quinn v. St. Louis Cnty.,

(8th Cir.

2011) (citing Wisbey v. City ofLincoln, Neb.,

(8th Cir. 2010). Thus,

plaintiff fails to demonstrate interference by alleging that her employer vowed to "find a

problem with her FMLA request," became "irate" upon her request for FMLA leave, or

hesitated before granting her leave, Compl. ~~ 31, 58, absent any showing that her

employer denied her FMLA benefits.

Plaintiffs remaining claims relate to actions her employer took after she requested

2615(a)(2). Pl.'s Opp'n at 6 (citing Hopkins,

). For clarity's sake, I will use the term "retaliation" to cover all forms of retaliatory conduct prohibited under the FMLA, whether under§ 2615(a)(l) or§ 2615(a)(2).

5 FMLA leave. While plaintiff appears to characterize these claims as examples of both

"interference" and "retaliation," see id. ~~ 65-89, the essence of these claims is retaliation

and will be analyzed as such. See Simmons v. Akin Gump Strauss Hauer & Feld, LLP,

No. 11-4480,

, at *3 n.1 (2d Cir. Jan. 24, 2013) (citing Sista v. CDC !xis

N. Am., Inc.,

, 175-76 (2d Cir. 2006)).

B. Retaliation Claim

Like her interference claim, plaintiffs retaliation claim fails to pass muster. The

FMLA prohibits discharge or discrimination against employees who oppos.e their

employer's FMLA violations.

(a)(2). FMLA retaliation claims are

analyzed under the McDonnell Douglas burden-shifting framework. Hopkins,

. Specifically, a prima facie claim of discrimination requires that plaintiff

show (1) that she exercised an FMLA right, (2) that she suffered an adverse employment

action, and (3) that there was a causal connection between the exercise of the right and

the adverse action. /d. (citing Roseboro v. Billington,

(D.D.C.

2009)).

To demonstrate an adverse employment action, "a plaintiff must show that a

reasonable employee would have found the challenged action materially adverse, which

in this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination." Burlington Nand Santa Fe Ry. Co. v. White,

(2006) (internal quotation marks and citation omitted). "Trivial harms ..

. petty slights, minor annoyances, and simple lack of good manners" generally do not rise

to the level of retaliation. /d. To show the causal connection between the exercised right

6 and the adverse employment action, plaintiff can show that "the protected activity and the

adverse action were not wholly unrelated." Roseboro,

(quoting

Brungart v. Bel/South Telecomm., Inc.,

, 799 (11th Cir. 2000)). Temporal

proximity can be sufficient to establish the causal connection. !d. (citation omitted). "If

a prima facie case is established, the burden then shifts to the defendant to overcome this

presumption by proffering a legitimate basis for this adverse action, and then the burden

shifts back to a plaintiff to show that the proffered reason is pretextual." Dorsey v.

Jacobson Holman, PLLC,

(D.D.C. 2010) (citing Roseboro,

).

Defendant concedes that plaintiff engaged in a protected activity-that is,

requesting FMLA leave on two occasions. See De f.'s Mot. at 9. Plaintiff alleges that, as

a consequence of engaging in this protected activity, her employer committed several acts

of retaliation: (1) revoking her police powers and requiring her to submit to a FFDE; (2)

preventing her from working two days of scheduled overtime; (3) demanding a lengthy

medical exam and a doctor's note; and (4) delaying her duty status conference by two

days. Compl. ~~ 24-25, 82-89. None of these claims, unfortunately for plaintiff,

constitute retaliation under the statute. How so?

First, the revocation of her police powers pending her FFDE does not constitute

an actionable incident of retaliation. Plaintiffs police powers were revoked for a total of

four business days, during which she continued to work in an administrative position.

Plaintiff does not allege that she suffered any change in salary or benefits during these

four days. Further, applicable case law, such as it is, suggests that a fitness for duty

7 examination, absent further evidence of humiliation or harm, does not rise to the level of

an adverse employment action. See Franklin v. Potter,

(D.D.C. 2009). But see Hunter v. D.C. Child and Family Servs. Agency,

(D.D.C. 2010) ("Discovery may or may not show that the fitness exam caused

[plaintiff] any particular injury or harm."). Yet even ifthe revocation of police powers

and the FFDE constituted adverse employment actions, defendant proffers a legitimate

basis for these actions: plaintiff's supervisor was concerned that plaintiff was

experiencing severe depression while carrying a weapon. De f.'s Mot. at 7. Such an

explanation constitutes a legitimate basis for the FFDE, and plaintiff has presented no

convincing evidence that this basis was pretextual. See Franklin, 600 F. Supp. at 68

(citing Fuentes v. Postmaster Gen. of US. Postal Serv.,

(5th

Cir. 2008) for proposition that FFDE had a legitimate basis when used to determine

whether plaintiff "was mentally healthy to return to her position" following time away for

"work-related stress and anxiety").

Similarly, plaintiff's inability to work two days of overtime does not rise to the

level of actionable retaliation. A denial of overtime does not necessarily constitute an

adverse employment action. See Alford v. Def Intelligence Agency, No. 10-631,

, at *3-*4 (D.D.C. Dec. 12, 2012). Even if it did, plaintiff cannot overcome

the non-retaliatory explanation that overtime was prohibited while on restricted duty.

Compl. ~ 24; see also Faisan v. Vance-Cooks, No. 08-714,

, at* 21

(D.D.C. Oct. 9, 2012) (accepting as legitimate basis for denial of overtime that light duty

assignment was not eligible for overtime).

8 Finally, plaintiff again fails to demonstrate retaliation based upon her employer's

demands for medical information, either as part of the FFDE or to approve her FMLA

request. Generally, requests for medical information do not rise to the level of an adverse

employment action. See Franklin,

(citations omitted). Plaintiff

notes that the FFDE medical exam included over 900 written questions, but she does not

allege that this exam "produce[d) an injury or harm." !d. at 67 (citing Burlington,

). Similarly, she alleges no harm from the delay of two business days ofher

duty status conference-a claim that rings akin to the "trivial harms ... , petty slights,

[and] minor annoyances" that the FMLA's retaliation provision was not intended to

include. Burlington,

. Put simply, her employer's legitimate requests and

actions do not constitute retaliation under the statute.

CONCLUSION

Plaintiff has failed to state a claim of an FMLA violation, either in the context of

interference or retaliation. For this reason, the Court GRANTS defendant's Motion to

Dismiss. An Order consistent with this decision accompanies this Memorandum

Opinion.

RICHARD N United States District Judge

9