By David Worley
A District of Columbia federal court dismissed a Capitol Police Officer’s FMLA interference and retaliation claims in Gordon v. U.S. Capitol Police, 20 WH Cases2d 453 (D.D.C. 2013), when she could provide no evidence that her employer denied her FMLA benefits (interference) and no evidence that she experienced and adverse employment action because of her use of her FMLA rights (retaliation). Despite an angry supervisor’s response to her request, the court found insufficient evidence of an “adverse action.”
Gordon requested, and was granted, FMLA leave for depression, but was told by another employee that the inspector was “mad” the request was granted without his knowledge. Because of the depression, Gordon was required to take a fitness for duty exam (FFDE) three days after her return from leave. She was placed in an administrative position until the exam, and missed an overtime opportunity. She passed the FFDE and returned to work. Gordon, who was scheduled to attend a specialized training session, again requested FMLA leave as the anniversary of her husband’s death was approaching. Her supervisor was allegedly “irate” and demanded a doctor’s note. However, the leave request was granted.
To show interference, the court explained, Gordon needed to show that she was actually denied her FMLA leave, or at least that the employer discouraged her from exercising her FMLA rights:
“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.” Here, as indicated by the facts, Gordon made no such showing.
Gordon’s claim of retaliation centered on her being assigned to an administrative position, being denied an overtime opportunity, and having to take a FFDE. First, the court found that the reassignment does not constitute retaliation. As an initial matter, the court noted that there was no reduction in pay or benefits. Then the court stated that
“even if the 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.”
Regarding the denial of overtime, the court noted that usually denials of overtime do not raise to the level of adverse employment actions.
However, “[e]ven if it did, plaintiff cannot overcome the non-retaliatory explanation that overtime was prohibited while on restricted duty.”
Finally, although Gordon alleged that both the request for a doctor’s note and the FFDE exam was adverse employment actions, she alleged no harm from those events, and therefore cannot use these events to prove retaliation.
