Legal Briefing: Punishment at the Capitol for FMLA Leave

Judy Gordon is a uniform police officer for the U.S. Capitol Police, which provides law enforcement services for Congress. After her husband committed suicide, she experienced bouts of incapacitating depression.

She applied and was approved for Family and Medical Leave Act leave for use intermittently. Gordon was ordered to take a fitness for duty examination, and her “police powers” were temporarily revoked. Although Gordon passed, the exam results were retained in her personnel record. Approximately six months later, when Gordon first requested to use the leave, her manager became upset with her leave usage and refused a leave request but eventually granted the request. Gordon sued under FMLA alleging the employer’s actions were unlawful interference and retaliation.

Reversing a district court’s decision, the U.S. Court of Appeals for the District of Columbia Circuit held 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 … even when the action fails to actually prevent such exercise or attempt.”Gordon v. U.S. Capitol Police, No. 13-5072, D.C. Circuit, (Feb. 20, 2015).

IMPACT: An employer’s discouragement of an employee taking FMLA leave can violate the act, even if the discouragement is ineffective.