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Capitol cop's family leave interference claim reinstated

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The District of Columbia appeals court has reinstated Family Medical Leave Act interference and retaliation claims filed by a Capitol Police officer, even though she was able to take the leave on two occasions.

Judy Anne Gordon applied for FMLA Leave in 2011 after she began suffering from bouts of depression following her husband’s suicide, according to Friday’s ruling in Judy Anne Gordon v. United States Capitol Police.

She was subsequently told that an upper level manager said he was “mad” about FMLA requests generally and had vowed to “find a problem with hers,” but she was granted leave in May 2011.

After she returned to work, Ms. Gordon was ordered to submit to a “fitness for duty examination.” While she was waiting to take the exam, she was assigned to administrative duties, which deprived her of the opportunity to earn $850 of scheduled overtime. Taking the test also cost her $50 in travel expenses.

Ms. Gordon passed the test, but it remains on her record, and she alleges its presence will be detrimental to her prospects for pay increases, promotions and transfers, according to the ruling.

Several months later, as the anniversary of her husband’s death approached, Ms. Gordon’s sister died, and the funeral conflicted with a training course she was scheduled to take.

To resolve the conflict, she again asked for FMLA leave. Her manager initially “became irate,” refused the request and demanded a doctor’s note, but later relented, according to the ruling.

Ms. Gordon filed suit against the police charging interference and retaliation in connection with her FMLA leave. The Washington District Court granted the police department summary judgment dismissing the case.

Pointing to the loss of overtime and travel costs, the appeals court said while these were the equivalent of only three days’ pay and “not an overwhelming fraction of her annual wages,” they could not easily be characterized as trivial, as the Capitol Police suggested.

The court also discussed how Ms. Gordon had successfully taken her leave, despite the comments others had allegedly made. “We have not previously addressed whether ineffective employer discouragement — such as is alleged by Gordon — could give rise to an interference claim.”

The court held that it could do so. An FMLA right “may give rise to a valid interference claim…even where the action fails to actually prevent such exercise or attempt,” said a unanimous three-judge panel in reversing the lower court’s ruling.

In October, a federal appeals court reinstated an FMLA lawsuit filed by a worker who was fired nine days after returning from FMLA leave, allegedly in part for being about five minutes late for work for a few days.

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