MEMORANDUM OPINION
Plaintiff Judy Gordon alleges that her employer, defendant United States Capitol Police, interfered with her rights and committed retaliation as prohibited under the
BACKGROUND
Plaintiff works as a uniform police officer during the overnight shift. Compl. ¶¶ 7-8 [Dkt. # 1], On May 6, 2011, plaintiff submitted a request to defendant’s Office of Human Resources for a bank of FMLA leave to be used at future, unspecified dates. Id. ¶¶ 11-12. In the request, plaintiff stated that she experienced intermittent depression due to her husband’s suicide in October 2010. Id. ¶ 9, 13. Plaintiffs FMLA request was approved with 240 hours of leave on May 20, 2011. Id. ¶ 14. Two months later, plaintiff said she learned through a police captain that the 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.” Id. ¶¶ 29-31.
On July 20, 2011, plaintiff was informed that, due to the same facts underlying her FMLA leave request, her police powers would be revoked pending a fitness for duty exam (“FFDE”). Id. ¶¶ 18-19. Instead of following its typical practice of scheduling duty status conferences one business day following the revocation of police powers, defendant scheduled plaintiffs conference three business days after her revocation. Id. ¶¶ 43^44. Plaintiff was temporarily reassigned to a light duty administrative position during her regular tour of duty while awaiting her FFDE. Id. ¶¶ 22-34. In this administrative position, plaintiff was unable to work two days of overtime she had previously scheduled. Id. ¶ 25.
As part of her FFDE, plaintiff was required to submit medical information and meet with a doctor to complete a medical exam. Id. ¶¶ 32-42. The medical exam included more than 900 written questions and an interview. Id. ¶ 47. The doctor concluded that plaintiff was fit for duty, and plaintiffs police powers were reinstated on July 26, 2011. Id. ¶¶ 48-49.
On October 16, 2011, plaintiff learned that she was scheduled to attend an active shooter training session during daytime hours on October 18-20, 2011. Id. ¶¶ 53. Due to the upcoming anniversary of her husband’s death, the stress from her sister’s recent death, and a scheduled appointment with her therapist, plaintiff requested use of her FMLA leave to miss the scheduled training. Id. ¶¶ 54-56. Plaintiffs supervisor allegedly was irate that plaintiff would miss the training and demanded a doctor’s note to justify the leave request. Id. ¶¶ 58-59. After initially “refus[ing]” to approve plaintiffs FMLA request, he eventually granted her request. Id. ¶ 58, 61.
After unsuccessful mediation, plaintiff received a notice of the end of mediation on February 1, 2012. Id. ¶ 1. She filed the above-captioned matter on April 27, 2012. Id.
STANDARD OF REVIEW
Defendant moves to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that it fails to state a claim upon which relief can be granted. Motion
“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 of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,
ANALYSIS
Plaintiff brings two types of claims under the FMLA: an interference claim and a retaliation claim. Compl. ¶¶ 65-89; see also Breeden v. Novartis Pharm. Corp.,
A. Interference Claim
Plaintiff fails to state a claim of interference under the FMLA. To state a claim of interference, plaintiff must show that she was entitled to an FMLA benefit that was denied to her. Strickland,
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 C.F.R. § 825.220(b). 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. See Quinn v. St Louis Cnty.,
Plaintiffs remaining claims relate to actions her employer took after she requested FMLA leave. While plaintiff appears to characterize these claims as examples of both “interference” and “retaliation,” see id. ¶¶ 65-89, the essence of these claims is retaliation and will be analyzed as such. See Simmons v. Akin Gump Strauss Hauer & Feld, LLP,
B. Retaliation Claim
Like her interference claim, plaintiffs retaliation claim fails to pass muster. The FMLA prohibits discharge or discrimination against employees who oppose their employer’s FMLA violations. 29 U.S.C. § 2615(a)(2). FMLA retaliation claims are analyzed under the McDonnell Douglas burden-shifting framework. Hopkins,
To demonstrate an adverse employment action, “a plaintiff must show that 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 of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White,
Defendant concedes that plaintiff engaged in a protected activity — that is, requesting FMLA leave on two occasions. See Def.’s Mot. at 9. Plaintiff alleges that,
First, the revocation of her police powers pending her FFDE does not constitute an actionable incident of retaliation. Plaintiffs police powers were revoked for a total of four business days, during which she continued to work in an administrative position. Plaintiff does not allege that she suffered any change in salary or benefits during these four days. Further, applicable case law, such as it is, suggests that a fitness for duty examination, absent further evidence of humiliation or harm, does not rise to the level of an adverse employment action. See Franklin v. Potter,
Similarly, plaintiffs inability to work two days of overtime does not rise to the level of actionable retaliation. A denial of overtime does not necessarily constitute an adverse employment action. See Alford v. Def. Intelligence Agency,
Finally, plaintiff again fails to demonstrate retaliation based upon her employer’s demands for medical information, either as part of the FFDE or to approve her FMLA request. Generally, requests for medical information do not rise to the level of an adverse employment action. See Franklin;
Plaintiff has failed to state a claim of an FMLA violation, either in the context of interference or retaliation. For this reason, the Court GRANTS defendant’s Motion to Dismiss. An Order consistent with this decision accompanies this Memorandum Opinion.
Notes
. The FMLA is applicable to federal employees in the legislative branch pursuant to the Congressional Accountability Act ("CAA”). 2 U.S.C. §§ 1302(a)(5), 1312.
. The complaint incorrectly identifies the date of her 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.
. 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.,
. Plaintiff submits that a “retaliation” claim is cognizable under either § 2615(a)(1) or • § 2615(a)(2). Pl.’s Opp’n at 6 (citing Hopkins, 851 F.Supp.2d .at 152). For clarity’s sake, I will use the term "retaliation” to cover all forms of retaliatory conduct prohibited under the FMLA, whether under § 2615(a)(1) or § 2615(a)(2).