Judy Gordon v. United States Capitol Police , 778 F.3d 158 ( 2015 )

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 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
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 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 (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.