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.
“Generally, requests for medical information do not rise to the level of an adverse employment action.” Gordon v. U.S. Capitol Police, 923 F.Supp.2d 112, 117 (D.D.C.2013) (citing Franklin v. Potter, 600 F.Supp.2d 38, 70–71 (D.D.C.2009) (“The Court finds that defendant's requests for plaintiff's updated medical information ... were not materially adverse actions.”)); Koch v. Schapiro, 699 F.Supp.2d 3, 14 (D.D.C.2010) (“Absent some tangible effect on the employee's terms and conditions of employment or other material harm, an employer's request for medical documentation for the purpose of assessing an employee's creditability or determining an appropriate accommodation is not an adverse employment action.”). The plaintiff also alleges that the defendant denied her Flexiplace application because of discrimination.
"Generally, courts have rejected the argument that a fitness for duty examination, by itself, constitutes materially adverse action." Semsroth v. City of Wichita, 548 F. Supp. 2d 1203, 1211 (D. Kan. 2008), aff'd 555 F.3d 1182 (10th Cir. 2009); see also Franklin v. Potter, 600 F. Supp. 2d 38, 67 (D.D.C. 2009) ("[N]either the [fitness-for-duty] exams, nor plaintiff's orders to report for them, rose to the level of materially adverse actions."); Gordon v. U.S. Capitol Police, CIV. 12-00671 RJL, 2013 WL 543893, at *4 (D.D.C. Feb. 10, 2013) ("[A] fitness for duty examination, absent further evidence of humiliation or harm, does not rise to the level of an adverse employment action."); Jenkins v. Med. Laboratories of E. Iowa, Inc., 880 F. Supp. 2d 946, 963-64 (N.D. Iowa 2012); but see Dodd v. SEPTA, CIV.A. 06-4213, 2008 WL 2902618l, at *14 (E.D. Pa. July 24, 2008) (holding that "involuntary psychological exam" was materially adverse where it resulted in "a permanent record in [plaintiff officer's] personnel file and may be a detriment to obtaining law enforcement positions in the future").
A certification that an employee may return to work from FMLA leave simply requires that the employee be restored to work; it does not erase all of the events which occurred before the employee went on FMLA leave. ( Brownfield v. City of Yakima (9th Cir.2010) 612 F.3d 1140, 1145–1147; cf. Gordon v. United States Capitol Police (D.D.C.2013) 923 F.Supp.2d 112, 117 [when plaintiff's supervisor was concerned that plaintiff was experiencing severe depression while carrying a weapon, a legitimate basis existed for a FFDE].) White suggests that our conclusion that post-FMLA leave medical examinations which do not violate the ADA are permissible when based on pre-FMLA leave conduct would swallow whole the FMLA return-to-work guarantee.