Judy Gordon v. United States Capitol Police
414 U.S. App. D.C. 204
D.C. Cir.2015Background
- Officer Judy Gordon, a U.S. Capitol Police officer, suffered depression after her husband's suicide and applied for a pre‑approved “bank” of intermittent FMLA leave; the agency approved 240 hours.
- After approval, supervisors told Gordon an upper‑level manager was "mad" about FMLA requests and vowed to "find a problem" with hers; the agency then ordered a mandatory fitness‑for‑duty exam, revoked her police powers temporarily, and reassigned her to administrative duties.
- The suspension of police powers caused Gordon to lose two days of overtime pay (~$850), incur travel costs (~$50), and she alleges long‑term career harm from the exam remaining on her record.
- Months later Gordon requested to draw on her FMLA bank for therapy around family bereavement; her manager initially refused, demanded a doctor’s note, then granted the request.
- Gordon sued under 29 U.S.C. § 2615(a) for both interference with FMLA rights and retaliation; the district court dismissed under Rule 12(b)(6). The D.C. Circuit reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2615(a)(1) can support a retaliation claim | Gordon contends (and relies on Gleklen) that (a)(1) supports retaliation claims similar to Title VII frameworks | Capitol Police argue retaliation derives only from § 2615(a)(2) and that (a)(1) differs | Court recognizes (a)(1) can support retaliation claims (consistent with Gleklen) and proceeds under that theory |
| Pleading standard for retaliation/inference of intent at motion to dismiss | Gordon need not plead full McDonnell Douglas prima facie case; direct evidence allegations suffice to infer retaliatory motive | Capitol Police contend Iqbal/Twombly require more detailed pleading to survive dismissal | Court holds Swierkiewicz remains applicable; Gordon pleaded facts that plausibly show retaliatory purpose and survives 12(b)(6) |
| Definition of "adverse action" / material adversity standard for FMLA retaliation | Gordon argues Burlington Northern ontrol (material adversity) and alleges monetary loss and career harms sufficient | Capitol Police assert Gordon's losses were de minimis and cases upholding fitness exams defeat material adversity | Court assumes Burlington standard and finds Gordon's alleged $900 loss plus career impact plausibly meets it |
| Scope of interference under §2615(a)(1): must interference be effective? | Gordon argues employer actions that reasonably tend to chill or interfere (even if unsuccessful) violate §2615(a)(1) | Capitol Police argue interference must be effective and cause actual deprivation | Court adopts similarity to NLRA §8(a)(1): liability may rest on employer conduct that has a reasonable tendency to interfere even if ineffective; Gordon pleaded such interference |
Key Cases Cited
- Gleklen v. Democratic Cong. Campaign Comm., 199 F.3d 1365 (D.C. Cir. 1999) (recognizing retaliation theory under §2615(a)(1) and importing McDonnell Douglas framework)
- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (plaintiff not required to plead prima facie case elements to survive Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards clarified but reaffirmed Swierkiewicz principle)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Plaintiff must plead plausible claim, but did not displace Swierkiewicz rule as applied here)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (materially adverse standard for retaliatory actions)
- Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (interpreting FMLA remedies and suggesting minimal prejudice requirement)