United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2014 Decided February 20, 2015

No. 13-5072

JUDY ANNE GORDON,

APPELLANT

V.

UNITED STATES CAPITOL POLICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-671)

Sara L. Faulman argued the cause and filed the briefs for 

appellant.

Frederick M. Herrera, Attorney, United States Capitol 

Police, argued the cause and filed the brief for appellee. R. 

Craig Lawrence, Assistant U.S. Attorney, entered an 

appearance.

Before: HENDERSON and PILLARD, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 
2

WILLIAMS, Senior Circuit Judge: This case involves the 

Family and Medical Leave Act (“FMLA” or the “Act”), 

which entitles eligible employees to take unpaid leave for 

family and medical reasons. 29 U.S.C. §§ 2601 et seq. 

Officer Judy Gordon sued her employer, the U.S. Capitol 

Police, alleging that it violated § 2615(a) by interfering with 

her exercise of FMLA rights and by retaliating against her for 

that exercise.

According to the complaint (from which all the facts 

below are drawn), Officer Gordon began suffering from bouts 

of depression following her husband’s suicide. The Capitol 

Police had in place (and evidently still do) a system allowing 

an employee to obtain a pre-approval of a “bank” of leave 

under the Act, without identifying specific start or end dates. 

Gordon applied for such a bank, also filing medical papers 

explaining that she was experiencing intermittent periods of 

severe and incapacitating depression. In May 2011 the 

Capitol Police granted approval for a bank of 240 hours of 

leave. 

A captain in the police later told Gordon that an upperlevel manager had said he was “mad” about FMLA requests 

generally and had vowed to “find a problem” with hers. In 

July 2011, two months after the grant of her leave request, 

police superiors ordered Gordon to submit to a “fitness for 

duty examination,” and told her that the facts supporting her 

FMLA request were the basis for the order. While she was 

waiting to take the examination, the police revoked her 

“police powers” and assigned her to administrative duties. 

The revocation and assignment deprived her of the

opportunity to earn $850 by working two days of scheduled

overtime. She also spent $50 traveling to and from the exam. 

Ultimately, Gordon passed the fitness for duty examination

and her police powers were reinstated. The examination 

remains on her record, and she alleges that its presence will be 
3

detrimental to her prospects for pay increases, promotions, 

and transfers. 

Several months later, as the anniversary of her husband’s 

death approached, Gordon’s sister died. Soon after, an 

appointment with her therapist (itself rescheduled so that she 

could go to her sister’s funeral) turned out to conflict with a 

three-day “active shooter training course” for which Gordon 

was scheduled. To resolve the conflict, Gordon made a 

request to draw on her bank of FMLA leave—her first such 

request. Her manager initially “became irate,” refused the 

request, and demanded a “doctor’s note.” He later relented 

and granted the request. 

Officer Gordon asserts claims of both “interference” and 

“retaliation,” which the district court dismissed under Rule 

12(b)(6). Gordon v. U.S. Capitol Police, 923 F. Supp. 2d 112 

(D.D.C. 2013). We reverse.

* * *

Our principal task here is the construction of 29 U.S.C. 

§ 2615(a), which reads as follows:

(a) Interference with rights

(1) Exercise of rights

It shall be unlawful for any employer to interfere 

with, restrain, or deny the exercise of or the attempt to 

exercise, any right provided under this subchapter. 

(2) Discrimination

It shall be unlawful for any employer to discharge 

or in any other manner discriminate against any 
4

individual for opposing any practice made unlawful by 

this subchapter. 

29 U.S.C. § 2615(a). Section 2615(b) makes various kinds of 

interference with “proceedings or inquiries” unlawful but is 

not directly relevant to this case. 

As it proves, there is a good deal of overlap in the 

coverage of § 2615(a)’s two subsections. The overlap is 

magnified by the Capitol Police’s provision for “banking” 

family leave time—applying for a store of leave to be used in 

the future, and then applying for successive uses. After an 

employee acquires an entitlement for future drawdowns, acts 

of the employer that operate as retaliation for the initial

request may also operate as interference with the later requests 

for use. Here we address retaliation first. 

* * *

For her retaliation claim Gordon relies mainly on 

§ 2615(a)(2). The legislative history explains that this 

provision was “derived” from a Title VII provision that is 

universally taken as creating a retaliation claim, 42 U.S.C. 

§ 2000e-3, and that the FMLA provision “is intended to be 

construed in the same manner.” S. Rep. No. 103-3, at 34-35 

(1993); H.R. Rep. No. 103-8, at 46 (1993). A comparison of 

the two provisions seems to confirm this link:

Title VII, 42 U.S.C. § 2000e-3: “It shall be an unlawful 

employment practice for an employer to discriminate 

against any of his employees or applicants . . . because he 

has opposed any practice made an unlawful employment 

practice by this subchapter . . . .”

FMLA, 29 U.S.C. § 2615(a)(2): “It shall be unlawful for 

any employer to discharge or in any other manner 
5

discriminate against any individual for opposing any 

practice made unlawful by this subchapter.” 

Given the overlap it is unsurprising that the Supreme Court 

has referred to § 2615(a)(2) as an “antiretaliation” provision. 

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. 

Ct. 1325, 1333 (2011). 

Nonetheless, we have also recognized a retaliation claim 

arising under § 2615(a)(1), Gleklen v. Democratic Cong. 

Campaign Comm., Inc., 199 F.3d 1365, 1367-68 (D.C. Cir. 

2000), a view with some support from other circuits.

1 Gordon 

also asserts her retaliation claim under that provision, albeit 

somewhat more obscurely. 

Gleklen imported Title VII’s prima facie case and burdenshifting regime to the FMLA retaliation context even as it 

relied on subsection (a)(1), a provision not modeled on Title 

VII. 199 F.3d at 1367-68 (citing McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973)). The elements of a prima facie 

case of FMLA retaliation are the well-known triad: (1) the 

employee “engaged in a protected activity under this statute”; 

(2) the employee “was adversely affected by an employment 

decision”; and (3) “the protected activity and the adverse 

employment action were causally connected.” Gleklen, 199 

F.3d. at 1368. 

 1 See, e.g., Pulczinski v. Trinity Structural Towers, Inc., 691 

F.3d 996, 1006-07 (8th Cir. 2012); Hodgens v. Gen. Dynamics 

Corp., 144 F.3d 151, 160 n.4 (1st Cir. 1998); see also Lichtenstein 

v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) 

(finding such a claim arising under the “sum” of §§ 2615(a)(1) and 

(a)(2)). But see Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 

1124 n.10 (9th Cir. 2001) (criticizing Gleklen’s application of Title 

VII doctrine to § 2615(a)(1) claims as a product of “semantic 

confusion”). 
6

As Gordon rightly argues, she need not plead facts 

showing each of these elements in order to defeat a motion 

under Rule 12(b)(6). In Swierkiewicz v. Sorema N.A., 534 

U.S. 506 (2002), the Court rejected such a pleading 

requirement for discrimination claims, emphasizing that it 

would be an odd requirement for a cause of action on which 

plaintiffs could prevail without proving the elements of a 

prima facie case—by producing direct evidence of 

discrimination. Id. at 511. We have observed that retaliation, 

too, can be proven by direct evidence rather than through the 

McDonnell Douglas prima facie case. E.g., Porter v. Natsios, 

414 F.3d 13, 17-18 (D.C. Cir. 2005). The Capitol Police 

contend that Swierkiewicz was rejected by Ashcroft v. Iqbal, 

556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 

U.S. 544 (2007). But Iqbal said nothing about the issue and

Twombly actually reaffirmed Swierkiewicz. Twombly, 550 

U.S. at 569-70. Although it is unnecessary for the application 

of Swierkiewicz, we note that Gordon pleads facts that if true 

would tend to directly show retaliatory purpose. 

In any event, Gordon adequately pleaded each element of 

the prima facie case. Gordon argues that her two requests for 

FMLA leave both constitute “protected activity.” The Capitol 

Police argue that such requests do not track the language of 

§ 2615(a)(2), which refers to “opposing any practice made 

unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2). But we 

need not resolve the adequacy of her claim under § 2615(a)(2)

because Gordon also advances her retaliation claim under 

§ 2615(a)(1), which contains no requirement that she “oppose 

any practice.”

As to adverse action, we have not previously decided 

whether the “material adversity” standard articulated for Title 

VII in Burlington Northern & Santa Fe Railway Co. v. White, 

548 U.S. 53, 68-70 (2006), governs in the context of FMLA 

claims. As we’ve just seen, however, Congress derived at 
7

least one of FMLA’s retaliation provisions, § 2615(a)(2), from 

Title VII’s retaliation provision, 42 U.S.C. § 2000e-3. 

Further, we have imported Title VII’s burden-shifting and 

prima facie case for purposes of FMLA retaliation under 

§ 2615(a)(1). Gleklen, 199 F.3d at 1367-68. Moreover, there 

is an overwhelming consensus among our sister circuits that 

FMLA retaliation claims are governed by the Title VII 

standard.2 

On the other hand, it is conceivable that a lower standard 

might govern. In Ragsdale v. Wolverine World Wide, Inc., 

535 U.S. 81 (2002), the Court held that FMLA claimants must 

demonstrate “prejudice” as defined by the statute’s 

enumeration of remedies. Id. at 89. Because those remedies 

include “damages equal to the amount of . . . any actual 

monetary losses sustained by the employee as a direct result 

of the violation,” § 2617(a)(1)(A)(i)(II) (emphasis added), 

Ragsdale seems to suggest that an FMLA plaintiff can satisfy

 2 Eight of our sister circuits have reached this conclusion. 

Crawford v. JP Morgan Chase & Co., 531 F. App’x 622, 627 (6th 

Cir. 2013); Wierman v. Caseys Gen. Stores, 638 F.3d 984, 999 (8th 

Cir. 2011); Millea v. Metro-N. R. Co., 658 F.3d 154, 164 (2d Cir. 

2011); Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 

2008); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 

1171 n. 2 (10th Cir. 2006); McArdle v. Dell Prods., L.P., 293 F. 

App’x 331, 337 (5th Cir. 2008); DiCampli v. Korman Cmtys., 257 

F. App’x 497, 500-01 (3d Cir. 2007); Csicsmann v. Sallada, 211 F. 

App’x 163, 167-68 (4th Cir. 2006). But see Erdman v. Nationwide 

Ins. Co., 582 F.3d 500, 507 n.2 (3d Cir. 2009). Of the three 

remaining, one relied on Burlington in analyzing an FMLA claim, 

Foraker v. Apollo Grp. Inc., 302 F. App’x 591, 594 (9th Cir. 2008), 

and two noted its possible applicability without resolving the issue, 

Roman v. Potter, 604 F.3d 34, 43 (1st Cir. 2010); Foshee v. 

Ascension Health-IS, Inc., 384 F. App’x 890, 891 (11th Cir. 2010).
8

his burden by identifying any monetary loss, no matter how 

slight.

We need not resolve the issue here. Assuming that the 

more demanding standard from Burlington Northern applies, 

Gordon’s claim plainly satisfies that standard. She alleges 

that the Capitol Police’s actions caused her to lose $850 in 

wages, incur travel expenses of $50, and diminish her 

prospects for pay increases, promotion, and transfer. It is 

plausible that a reasonable person in Gordon’s position 

threatened with such losses might well be dissuaded from 

engaging in protected activity. See Burlington Northern, 548 

U.S. at 68-70. For Gordon, the losses were the equivalent of 

three days’ pay—not an overwhelming fraction of her annual 

wages, perhaps, but not one easily characterized as trivial or 

“de minimis,” as the Capitol Police suggest. 

As to the harms flowing from the fitness for duty exam, 

the three successive decisions in the case originating as 

Hunter v. District of Columbia Child and Family Services 

Agency, 710 F. Supp. 2d 152 (D.D.C. 2010), illustrate the 

critical difference between motions for dismissal and for 

summary judgment. In the initial decision, the district court 

found that an allegation of a mandatory fitness for duty 

examination was “sufficient to withstand the . . . motion to 

dismiss,” insofar as “[t]he circumstances of this case are not 

known at this time because no discovery has taken place.” Id. 

at 160 (using the quoted language on the subject of 

discrimination but invoking it by cross-reference as to 

retaliation). Only after the parties had the opportunity for 

discovery did the court find that imposition of the exam was 

not materially adverse, granting summary judgment and 

dismissing as “unsupported” plaintiff’s general assertion that 

the exam impacted him “physically, mentally and financially, 

manifesting itself in insomnia, and anxiety.” Hunter v. 

District of Columbia, 905 F. Supp. 2d 364, 378 (D.D.C. 
9

2012). We affirmed by order. Hunter v. D.C. Gov’t, No. 13-

7003, 2013 WL 5610262 (D.C. Cir. Sept. 27, 2013). Gordon, 

of course, has alleged burdens beyond the examination itself, 

namely the $900 in total losses and the effect on her future 

employment prospects. Accepting these factual allegations as 

true, and in no way diluted by other allegations, we cannot say 

that imposition of the fitness for duty examination did not 

inflict a “materially adverse” harm. We note that all the cases 

relied on by the Capitol Police in relation to such mandates 

were summary judgment decisions.3 

As to the causal link between the initial FMLA request 

and the mandate to undergo a fitness for duty examination, 

Gordon’s complaint explicitly alleges such a link, claiming 

that one manager said he was “mad” about FMLA requests 

generally and vowed to “find a problem” with her request, 

while another became “irate” on receiving her request. In 

response, the Capitol Police pointed to Gordon’s allegations 

regarding her “severe and incapacitating depression,” and 

those regarding possession of firearms on duty, saying that in 

combination they demonstrated a public security risk and thus 

a non-retaliatory purpose for the fitness examination. The 

district court ruled that Gordon failed to provide “convincing 

evidence” that this non-retaliatory purpose was pretextual. 

Gordon, 923 F. Supp. 2d at 117. But under Rule 12(b)(6) we 

must accept the complaint’s allegations as true and draw all 

reasonable inferences in favor of the non-moving party. See 

Howard v. Office of Chief Admin. Officer of U.S. House of 

 3 See Schoffstall v. Henderson, 223 F.3d 818, 825-26 (8th Cir. 

2000); Semsroth v. City of Wichita, 555 F.3d 1182, 1187 (10th Cir. 

2009); Baum v. Rockland Cnty., 161 F. App’x 62, 64 (2d Cir. 

2005); Stone v. Bd. of Dirs. of Tenn. Valley Auth., 35 F. App’x 193, 

199 (6th Cir. 2002); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 

772, 787 (7th Cir. 2007); Franklin v. Potter, 600 F. Supp. 2d 38, 67 

(D.D.C. 2009). 
10

Representatives, 720 F.3d 939, 950 (D.C. Cir. 2013). Judged 

by that standard, Gordon’s allegations (including those 

especially identified in the Capitol Police’s motion to dismiss) 

amply support the inference of retaliatory purpose and are 

thus enough to defeat the motion to dismiss. The district 

court’s grant of the motion was error. 

We note that the complaint charges other conduct alleged 

to interfere with Gordon’s FMLA rights and/or retaliate 

against her for exercise of those rights, such as a “request” 

that Gordon execute a waiver authorizing her employer to 

directly contact her therapist. In view of the facts surrounding 

the mandated fitness for duty exam, we need not now assess 

those claims. 

* * *

To prevail on her “interference” claim under 

§ 2615(a)(1), Gordon must show that “her employer interfered 

with, restrain[ed], or denied the exercise of or the attempt to 

exercise, any right provided by the FMLA and that she was 

prejudiced thereby.” McFadden v. Ballard Spahr Andrews & 

Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010) (quotations and 

citations omitted). Here, Gordon doesn’t contend that she 

suffered any actual deprivation of FMLA leave, only that her 

employer attempted to discourage her from seeking or using 

such leave and that this attempt caused her harm. We 

recognized in McFadden that a plaintiff could succeed on an 

interference claim “without showing [that her employer] 

denied her any leave she requested.” See id. at 3, 7. In that 

case, however, the employer’s discouragement proved 

successful; it induced the employee to seek less leave than she 

was entitled to. See id. We have not previously addressed 

whether ineffective employer discouragement—such as is 

alleged by Gordon—could give rise to an interference claim. 
11

The text of § 2615(a)(1) does not resolve the issue. The 

trio “interfere with, restrain, or deny” could be construed as 

requiring that the interference, restraint, or denial be 

effective—or not. The phrase “exercise of or the attempt to 

exercise” doesn’t help, as the statute could be limited to 

successful efforts to interfere with either, or could encompass 

unsuccessful efforts as well.

We turn to prior judicial constructions of a closely related 

provision for guidance. Section 2615(a)(1) largely mimics 

§ 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 

§ 158(a)(1):

NLRA, 29 U.S.C. § 158(a)(1): “It shall be an unfair labor 

practice for an employer . . . to interfere with, restrain, or 

coerce employees in the exercise of the rights guaranteed 

in section 157 of this title.”

FMLA, 29 U.S.C. § 2615(a)(1): “It shall be unlawful for 

any employer to interfere with, restrain, or deny the 

exercise of or the attempt to exercise, any right provided 

under this subchapter.” 

These provisions serve parallel functions in their respective 

statutory regimes: defining circumstances in which the 

employer prevents or chills employees’ exercise of 

substantive rights created by other provisions. Compare 29 

U.S.C. § 157, with 29 U.S.C. § 2612. Other courts have noted 

the similarity. See Bachelder v. Am. W. Airlines, Inc., 259 

F.3d 1112, 1123 (9th Cir. 2001); see also Conoshenti v. Pub. 

Serv. Elec. & Gas Co., 364 F.3d 135, 147 n.9 (3d Cir. 2004). 

The two provisions are not, to be sure, identical. While 

victims of interference under the FMLA may file a district 

court action, the NLRA allocates exclusive enforcement 

authority to the National Labor Relations Board. Compare 29 

U.S.C. § 2617, with 29 U.S.C. § 160. Also, the FMLA 
12

provision substitutes “deny” for NLRA’s “coerce,” and adds 

protection for the mere “attempt to exercise” a right. 

Nonetheless, there is a substantial similarity between the two 

provisions, which is “a strong indication” that the two statutes 

should be interpreted similarly. Northcross v. Bd. of Ed. of 

Memphis City Sch., 412 U.S. 427, 428 (1973).

By the time Congress enacted the FMLA, nearly every

circuit had recognized that an employer action constituted

unlawful interference under NLRA § 8(a)(1) if it had a 

“reasonable tendency” to interfere with employees’ rights, 

whether or not it actually did so.

4 Where Congress “adopts a 

new law incorporating sections of a prior law, Congress 

normally can be presumed to have had knowledge of the 

interpretation given to the incorporated law, at least insofar as 

it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 

581 (1978). The prior judicial constructions of NLRA

§ 8(a)(1) provide a strong indication that FMLA interference 

 4 Equitable Gas Co. v. NLRB, 966 F.2d 861, 866 (4th Cir. 

1992); J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616, 621 (7th 

Cir. 1991); NLRB v. Okun Bros. Shoe Store, 825 F.2d 102, 107 (6th 

Cir. 1987); Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 816 (3d 

Cir. 1986); NLRB v. Vought Corp.-MLRS Sys. Div., 788 F.2d 1378, 

1381 (8th Cir. 1986); NLRB v. Marine Optical, Inc., 671 F.2d 11, 

18 (1st Cir. 1982); TRW-United Greenfield Div. v. NLRB, 637 F.2d 

410, 415 (5th Cir. Feb. 20, 1981); Bill Johnson’s Restaurants, Inc. 

v. NLRB, 660 F.2d 1335, 1341 (9th Cir. 1981); Sw. Reg’l Joint Bd., 

Amalgamated Clothing Workers of Am., AFL-CIO v. NLRB, 441 

F.2d 1027, 1031 (D.C. Cir. 1970); Irving Air Chute Co. v. NLRB, 

350 F.2d 176, 179 (2d Cir. 1965). (The Fifth Circuit opinion is also 

binding on the Eleventh Circuit. See Bonner v. City of Prichard,

661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).) The Tenth 

Circuit reached the same conclusion shortly after the enactment of 

the FMLA. Manna Pro Partners, L.P. v. NLRB, 986 F.2d 1346, 

1354 (10th Cir. 1993).
13

claims do not require effective interference, but only employer 

conduct that reasonably tends to interfere with the exercise of 

FMLA rights. (As the complaint cites facts showing 

deliberate interference, we need not address the rather 

confusing authority on the issue of intent under § 8(a)(1).5)

This view is further supported by our prior recognition of 

a retaliation claim arising under § 2615(a)(1) in Gleklen, 199 

F.3d at 1367-68. Retaliation claims are not ordinarily 

defeated by a plaintiff’s resolute insistence on her rights; they 

do not require any actual deprivation of statutory entitlements, 

but rather involve employer conduct designed to deter and/or 

punish the exercise of those rights. It would be anomalous to 

allow such claims to proceed under a backwards-looking 

“retaliation” theory under § 2615(a)(1) as we did in Gleklen,

while barring them under a forward-looking “interference” 

one, such as Gordon advances here. 

Accordingly, we hold that an employer action with a 

reasonable tendency to “interfere with, restrain, or deny” the 

“exercise of or attempt to exercise” an FMLA right may give

rise to a valid interference claim under § 2615(a)(1) even 

where the action fails to actually prevent such exercise or 

attempt.

Gordon satisfies this element of her interference claim. 

She alleges that senior Capitol Police officials expressed 

hostility towards requests for FMLA leave generally and her 

request in particular. And, after she had obtained a bank of 

leave but before she had occasion to use it, the Capitol Police 

required her to take a fitness for duty exam which caused her 

 5 See 1 J. Higgins, The Developing Labor Law 89-90 (6th ed. 

2012) (characterizing the Supreme Court’s position on the role of 

employer intent in § 8(a)(1) claims as “somewhat blurred” and “not 

. . . so clear”) (collecting cases).
14

to suffer losses worth $900 plus unquantifiable harms to her 

future career prospects. Such a course of conduct would have 

a reasonable tendency to interfere with an employee’s 

exercise of her FMLA rights.

Turning to the second element of her interference claim,

“prejudice,” we face another doctrinal ambiguity. As 

discussed above, Ragsdale seemed to define this requirement

in minimalist terms by deriving it from the FMLA’s 

enumeration of remedies. 535 U.S. at 89. Then again, 

interference claims based on ineffective discouragement 

might be required to satisfy the “materially adverse” standard

from Title VII doctrine that many circuits have already 

applied to FMLA retaliation claims. See Burlington 

Northern, 548 U.S. at 68-70. It would seem anomalous for 

the same ineffective employer action to be subject to one 

definitional floor when characterized as retaliation, and

another when characterized as interference, when both are of 

concern because of their chilling effect. 

Once again, we need not resolve these questions here

because even if the more stringent Burlington Northern

standard governs, Gordon’s pleadings satisfy that standard. 

Dismissal of the interference claim was therefore error.

* * *

We reverse the order of the district court. 

So ordered.