Gordon vs. U.S. Capitol Police

Family, Medical, and Other Leave Discrimination

Gordon v. U.S. Capitol Police: Retaliation and Interference with FMLA Rights

A police officer who tried to get time off from work to help her cope with the suicide of her husband recently got a victory with decision from the U.S. Court of Appeals for the District of Columbia Circuit. The case shows that under the federal Family Medical Leave Act (FMLA) it’s against the law for an employer not only to retaliate against an employee for exercising his or her rights (taking actions against the person) but also interfering with the employee’s FMLA’s rights.

Officer Judy Anne Gordon suffered from depression following her husband’s suicide. Her employer, the U.S. Capitol Police, allow employees to obtain a pre-approved “bank” of leave time under the FMLA, without specific start or end dates. She applied for such a bank, along with medical documents stating she was having intermittent periods of severe and incapacitating depression. She was approved for 240 hours of leave. According to the complaint,

  • A captain told Gordon an upper-level manager was “mad” about FMLA requests and vowed to “find a problem” with hers leave. Two months after granting the leave request, superiors ordered Gordon to take a “fitness for duty examination,” because of the facts listed in her FMLA request. Gordon’s “police powers” were revoked and she was assigned to administrative duties which deprived her of the chance to make $850 in overtime. She also spent $50 traveling to and from the exam.
  • Gordon passed the fitness for duty examination and her police powers were reinstated. The exam is on her record. Gordon claims it’s detrimental to her ability to get future pay increases, promotions and transfers.
  • Several months later, with the anniversary of her husband’s suicide approaching, Gordon’s sister died. Gordon’s appointment with her therapist conflicted with a three-day “active shooter training course” for which she was scheduled. Gordon made a request to use her FMLA leave bank. Her manager “became irate,” denied the request and demanded a “doctor’s note.” He later relented and granted the request.

Gordon claims the Capitol Police is guilty of interference and retaliation in relation to her FMLA requests. The district court dismissed her case after a Rule 12(b)(6) motion (Gordon failed to state a claim upon which relief can be granted). The appeals court reversed and sent the case back down to the district court. One reason was that because the motion to dismiss was made before any evidence is introduced, the complaint is assumed to be true and any inferences are resolved in Gordon’s favor.

The appeals court found Gordon made out a “prima facie” case for retaliation. There were allegations that,

  • Gordon “engaged in a protected activity under this statute” (she made two FMLA related requests),
  • Gordon “was adversely affected by an employment decision” (she lost $900 and potentially her ability to get a raise, transfer or be promoted was harmed), and
  • “(T)he protected activity and the adverse employment action were causally connected” (Gordon’s complaint states one manager said he was “mad” about FMLA requests generally, vowed to “find a problem” with her request and another became “irate” on receiving her request.).

The appeals court also found her case for interference with FMLA rights were also sufficiently plead.

  • The court decided there would be interference when an employer takes an action with a reasonable tendency to “interfere with, restrain, or deny” the “exercise of or attempt to exercise” an FMLA right even if, as in Gordon’s case, the action fails to prevent such exercise or attempt.
  • Gordon claims senior Capitol Police officials expressed hostility towards FMLA requests generally and her request in particular. After she obtained approval for a bank of leave, but before she actually used it, the Capitol Police required her to take a fitness for duty exam. This is alleged to have caused a loss of $900 plus a potential harm to her future income and career prospects.
  • The court wrote, “Such a course of conduct would have a reasonable tendency to interfere with an employee’s exercise of her FMLA rights.”

Employees who’ve encountered difficulty and “push back” after asking for an FMLA leave should remember that there are two statutory hooks upon which to hang your legal hat, depending on the facts of the case, that for retaliation and for interference with exercising FMLA rights. As this case also demonstrates one need not suffer a huge monetary loss in order to file a legal action, though whether the time, energy and cost of litigation is worth it is up to the individual.

If you have any questions about your family and medical leave rights, or feel your request for such a leave resulted in retaliation or that your FMLA rights were interfered with, contact our office so we can talk about the situation and your legal options.