Gordon v. U.S. Capitol Police
| Citation | 778 F.3d 158 |
| Decision Date | 20 February 2015 |
| Docket Number | No. 13–5072.,13–5072. |
| Parties | Judy Anne GORDON, Appellant v. UNITED STATES CAPITOL POLICE, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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.
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 upper-level 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 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.
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Our principal task here is the construction of 29 U.S.C. § 2615(a), which reads as follows:
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:
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., ––– U.S. ––––, 131 S.Ct. 1325, 1333, 179 L.Ed.2d 379 (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 burden-shifting 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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.
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, 122 S.Ct. 992, 152 L.Ed.2d 1 (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, 122 S.Ct. 992. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). But Iqbal said nothing about the issue and Twombly actually reaffirmed Swierkiewicz. Twombly, 550 U.S. at 569–70, 127 S.Ct. 1955. 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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), governs in the context of FMLA claims. As we've just seen, however, Congress derived at 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, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002), the Court held that FMLA claimants must demonstrate “prejudice” as defined by the statute's enumeration of remedies. Id. at 89, 122 S.Ct. 1155. 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 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,...
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