### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA JUDY GORDON ) ) Plaintiff, ) ) v. ) Civil Case No. 12-00671 

### (RJL) ) 

### UNITED STATES CAPITOL POLICE, ) ) DefundanL )

# MEMORAND~PINION February 

### /1J, 2013 [# 3] PlaintiffJudy 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"), 29 U.S.C. §§ 2601 

### etseq. 1 Defendant has moved to dismiss the complaint for failure to state a claim ofeither interference or retaliation. Upon consideration ofthe parties' pleadings andthe relevant law, defendant's Motion to Dismiss is GRANTED. 

### BACKGROUND Plaintiffworks as a uniform police officer during the overnight shift. Compl.**~~** 7-8 [Dkt. 

### # 1]. On May 6, 2011, plaintiffsubmitted 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, plaintiffstated that she experienced intermittent depression due to her husband's suicide in October 2010. !d.**~** 9, 13. Plaintiffs FMLA request was

1 The FMLA is applicable to federal employees in the legislative branchpursuant to the Congressional AccountabilityAct ("CAA"). 2 U.S.C. §§ 1302(a)(5), 1312. 1approved with 240 hours ofleave on May 20, 2011. !d.**~** 14. Two months later, plaintiff said she learned through a police captainthatthe 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, plaintiffwas informed that, due to the same facts underlying her FMLA leave request, herpolice powers would be revoked pending a fitness for duty

exam ("FFDE"). !d.**~~** 18-19. Instead offollowing its typical practice ofscheduling duty status conferences one business day following the revocation ofpolice powers, defendant scheduled plaintiff's conference three business days after herrevocation. !d.**~~** 43-44. Plaintiffwas temporarily reassigned to a light duty administrative position during herregular tour ofduty while awaiting her FFDE. !d.**~~** 22-34. In this administrative position, plaintiffwas unable to work two days ofovertime she had previously scheduled. !d.**~** 25. As part ofher FFDE, plaintiffwas 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 plaintiffwas fit for duty, and plaintiff's policepowers were reinstated on July 26, 2011. !d.**~~** 48-49.2 On October 16, 2011, plaintifflearnedthat she was scheduled to attend an active shootertraining session during daytime hours on October 18-20, 2011. !d.**~~** 53. Due to

2 The complaint incorrectly identifies the date ofher 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. 2the upcoming anniversary ofherhusband's death, the stress from her sister's recent death, and a scheduled appointment with her therapist, plaintiffrequested use ofher FMLA leave to miss the scheduled training. Id.**~~54-56.** Plaintiffs supervisor allegedly

was irate that plaintiffwould miss the training and demanded a doctor's note tojustify the leave request. ld.**~~58-59.** After initially "refus[ing]" to approve plaintiffs FMLA request, he eventually granted herrequest. Id.**~** 58, 61. After unsuccessful mediation, plaintiffreceived a notice ofthe end ofmediation

on February 1, 2012. Id.**~** 1. She filed the above-captioned matter on April27, 2012. !d. 

### STANDARD OFREVIEW Defendant moves to dismiss the amended complaintpursuantto Rule 12(b)(6) of the Federal Rules ofCivil Procedure on the ground that it fails to state a claim upon which reliefcan 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 "grantplaintiffthe benefit ofall inferences that can be derived from the facts alleged." Sparrow v. UnitedAirLines, Inc., 216 F.3d 1111, 1113 (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 ofhis entitle[ment] to reliefrequires more than labels and conclusions, and a formulaic recitation ofthe elements ofa cause ofaction will not do." BellAtlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citations omitted). 3Rather, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to reliefthat is plausible on its face." Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). "[T]he court need not accept inferences drawn by plaintiffl] ifsuch inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Indeed, where a court cannot infer more than the mere possibility ofmisconduct from the facts, "the complaint has alleged-but it has not shown-thatthe pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal quotation marks and citation omitted). ANALYSIS Plaintiffbrings two types ofclaims under the FMLA: an interference claim and a retaliation claim. Compl. ,-r,-r 65-89; see also Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 48 (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 oforthe attempt to exercise" her FMLArights. 29 U.S.C. § 2615(a)(l). A retaliation claim requires plaintiffto 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 ofeither

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., 851 F. Supp. 2d 146, 152 n.6 (D.D.C. 2011) (citing Stricklandv. Water Works andSewerBd. of City of Birmingham, 239 F.3d 1199, 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 Plaintiffsubmits that a "retaliation" claim is cognizable under either § 2615(a)(l) or§ 4interference orretaliation under the FMLA, plaintiffs complaint, for the following reasons, mustbe dismissed. A. Interference Claim Plaintifffails to state a claim ofinterference under the FMLA. To state a claim of interference, plaintiffmust show that she was entitled to an FMLA benefitthat was denied to her. Strickland, 239 F.3d at 1206-07. Plaintiffrequested FMLA leave on two occasions: in May 2011 and in October 2011. Compl.**~~** 12, 53, 56. Both ofthese requests were granted.**/d.~~** 14, 61. Absent evidence ofthe denial ofany FMLA benefits, plaintifffails 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." 29 CFR § 825.220(b). Yet even in cases where an employer discouraged an employee from using FMLA leave, the employee still must showthat the employer denied the employee entitlements under the FMLA. See Quinn v. St. Louis Cnty., 653 F.3d 745, 753 (8th Cir. 2011) (citing Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010). Thus, plaintifffails to demonstrate interference by alleging that her employervowed to "find a problemwith herFMLArequest," became "irate" upon herrequest for FMLA leave, or hesitated before granting her leave, Compl.**~~** 31, 58, absent any showing thather employer denied her FMLA benefits. Plaintiffsremaining claims relate to actions her employertook after she requested 2615(a)(2). Pl.'s Opp'n at 6 (citingHopkins, 851 F. Supp. 2d at 152). Forclarity's sake, I will use the term "retaliation"to cover all forms ofretaliatory conductprohibited under the FMLA, whetherunder§ 2615(a)(l) or§ 2615(a)(2). 

### 5FMLA leave. While plaintiffappears to characterize these claims as examples ofboth "interference" and "retaliation,"see id.**~~** 65-89, the essence ofthese claims is retaliation and will be analyzed as such. See Simmons v. Akin Gump Strauss Hauer & Feld, LLP, No. 11-4480,2013 WL 261537, at *3 n.1 (2d Cir. Jan. 24, 2013) (citing Sista v. CDC!xis N. Am., Inc., 445 F.3d 161, 175-76 (2d Cir. 2006)). 

### B. Retaliation Claim Like her interference claim, plaintiffsretaliation claim fails to pass muster. The FMLAprohibits discharge ordiscrimination against employees who oppos.e their employer's FMLA violations. 29 U.S.C. 

### §2615(a)(2). FMLAretaliation claims are analyzed underthe McDonnellDouglas burden-shifting framework. Hopkins, 851 F. Supp. 2d at 153. Specifically, aprima facie claim ofdiscrimination requires thatplaintiff show (1) that she exercised an FMLAright, (2) that she suffered an adverse employment action, and (3) thatthere was a causal connectionbetween the exercise ofthe right and the adverse action. /d. (citingRoseboro v. Billington, 606 F. Supp. 2d 104, 109 (D.D.C. 2009)). To demonstrate an adverse employment action, "aplaintiffmust showthat 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 ofdiscrimination." BurlingtonNandSanta Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted). "Trivial harms

..

.petty slights, minor annoyances, and simple lack ofgood manners" generally do not rise to the level ofretaliation. 

### /d. To show the causal connection between the exercised right 6and the adverse employment action, plaintiffcan show that "the protected activity and the adverse action were not wholly unrelated." Roseboro, 606 F. Supp. 2d at 109 (quoting Brungartv. Bel/South Telecomm., Inc., 231 F.3d 791, 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 plaintiffto show that the proffered reason is pretextual." Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 37 (D.D.C. 2010) (citingRoseboro, 606 F. Supp. 2d at 1 09). Defendant concedes that plaintiffengaged in a protected activity-thatis, requesting FMLA leave on two occasions. See Def.'s Mot. at 9. Plaintiffalleges that, as

a consequence ofengaging in this protected activity, her employer committed several acts ofretaliation: (1) revoking herpolice powers and requiring her to submit to a FFDE; (2) preventing her from working two days ofscheduled 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 ofthese claims, unfortunately for plaintiff, constitute retaliation under the statute. How so? First, the revocation ofher police powers pending her FFDE does not constitute

an actionable incident ofretaliation. Plaintiffspolice powers were revoked for a total of four business days, during which she continued to work in an administrative position. Plaintiffdoes not allege that she suffered any change in salary orbenefits during these four days. Further, applicable case law, such as it is, suggests that a fitness for duty 7examination, absent further evidence ofhumiliation or harm, does not rise to the level of

an adverse employment action. See Franklin v. Potter, 600 F. Supp. 2d 38, 67-68 (D.D.C. 2009). Butsee Hunter v. D.C. ChildandFamily Servs. Agency, 710 F. Supp. 2d 152, 160 (D.D.C. 2010) ("Discovery may or may not show that the fitness exam caused [plaintiff] any particular injury or harm."). Yet even iftherevocation ofpolice powers and the FFDE constituted adverse employment actions, defendant proffers a legitimate basis for these actions: plaintiff's supervisor was concerned that plaintiffwas experiencing severe depression while carrying a weapon. Def.'s Mot. at 7. Such an explanation constitutes a legitimate basis for the FFDE, and plaintiffhas presented no convincing evidence that this basis was pretextual. See Franklin, 600 F. Supp. at 68 (citing Fuentes v. Postmaster Gen. ofUS. PostalServ., 282 F. App'x 296, 303-04 (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 ofovertime does not rise to the level ofactionable retaliation. A denial ofovertime does not necessarily constitute an adverse employment action. SeeAlfordv. DefIntelligenceAgency, No. 10-631, 2012 WL 6185726, at *3-*4 (D.D.C. Dec. 12, 2012). Even ifit did, plaintiffcannot overcome the non-retaliatory explanation that overtime was prohibited while on restricted duty. Compl.**~** 24; see also Faisan v. Vance-Cooks, No. 08-714, 2012 WL 4789172, at* 21 (D.D.C. Oct. 9, 2012) (accepting as legitimate basis for denial ofovertime that light duty assignment was not eligible for overtime). 8Finally, plaintiffagain fails to demonstrate retaliation based upon her employer's demands for medical information, either as part ofthe FFDE orto approve herFMLA request. Generally, requests for medical information do not rise to the level ofan adverse employment action. See Franklin, 600 F. Supp. 2d at 70-71 (citations omitted). Plaintiff notes thatthe FFDE medical exam included over 900 written questions, but she does not allege thatthis exam "produce[d) an injury orharm." !d. at 67 (citingBurlington, 548 U.S. at 67). Similarly, she alleges no harm from the delay oftwo business days ofher duty status conference-aclaim that rings akin to the "trivialharms

... , petty slights, [and] minor annoyances" that the FMLA's retaliationprovision was not intended to include. Burlington, 548 U.S. at 68. Put simply, her employer's legitimate requests and actions do not constitute retaliation under the statute. CONCLUSION Plaintiffhas failed to state a claim ofan FMLA violation, either in the context of interference orretaliation. Forthis 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

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