                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
CYNTHIA LOVELY-COLEY,                )
                                     )
            Plaintiff,               )
                                    )
            v.                      )   Civil Action No. 12-1464 (RBW)
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
            Defendant.              )
___________________________________ )

                                        MEMORANDUM OPINION

         The plaintiff, Cynthia Lovely-Coley, brings this civil action against the defendant, the

District of Columbia, asserting claims of interference and retaliation under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2611-2619 (2012), arising out of delays in granting

her applications for FMLA leave in 2010. See Civil Complaint for Equitable and Monetary

Relief and Demand for Jury Trial (“Compl.”) ¶¶ 1-34. Currently pending before the Court is the

District of Columbia’s Motion for Summary Judgment (“Def.’s Mot.”). Upon careful

consideration of the parties’ submissions, 1 the Court concludes that the motion must be denied,

and this case must advance to trial. 2



1
  In addition to the filings already mentioned, the Court considered the following submissions in rendering its
decision: (1) Memorandum in Support of District of Columbia’s Motion for Summary Judgment (“Def.’s Mem.”);
(2) the District of Columbia’s Statement of Undisputed Material Facts (“Def.’s Facts I”); (3) the Plaintiff’s
Opposition to [the] Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”); (4) the Plaintiff’s Statement of
Genuine Disputed Issues (“Pl.’s Facts”); (5) the District of Columbia’s Reply to Plaintiff’s Opposition to District of
Columbia’s Motion for Summary Judgment (“Def.’s Reply”); (6) the [Defendant’s] Additional Facts Not Directly
Relevant to Above Responses (“Def.’s Facts II”); and (7) the Plaintiff’s Surreply to [the] Defendant’s Reply in
Support of [the] Defendant’s Motion for Summary Judgment (“Pl.’s Surreply”), which was ordered by the Court, see
May 10, 2016 Order at 1-2, ECF No. 46.
2
  Although a complete copy of the complaint does not appear to have been filed on the public docket, that
deficiency has no bearing on the Court’s resolution of the motion.




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                                            I.       BACKGROUND

         The plaintiff “is a detective in the District of Columbia Metropolitan Police

Department.” 3 Pl.’s Facts ¶ 1. She requested FMLA leave on three occasions in 2010, see id. ¶¶

2, 3, 4, so that she could “tend to her daughter, who was battling, and would eventually die

from[] cancer,” Def.’s Mem. at 1 (citing Compl. ¶¶ 9, 19).

         A.       The Defendant’s Alleged Interference

         The plaintiff first applied on May 25, 2010 for FMLA leave, see Pl.’s Facts ¶ 2, seeking

640 hours of sick leave to be taken between May 23, 2010 and September 4, 2010, 4 see Def.’s

Mem., Exhibit (“Ex.”) 3 (May 2010 FMLA Leave Application (“First FMLA Leave Appl.”)) at

41; 5 see also Def.’s Mem., Ex. 4 (July 27, 2010 Email From Defendant to Plaintiff (“July 27,

2010 Email”)) at 45. According to the plaintiff, her “immediate supervisor” rejected her

application the following day because of “insufficient manpower.” Def.’s Facts II ¶ 5 (quoting

Pl.’s Opp’n, Ex. 1 (Affidavit of Cynthia Lovely-Coley (“Lovely-Coley Aff.”) ¶ 6); Pl.’s Opp’n,

Ex. 2 (Excerpts of the Deposition of Lovely-Coley (“Lovely-Coley Dep.”)) at 46:9-20, 61:4-20).

Nevertheless, at or about that same time, the Human Resource Management Division of the D.C.

Police Department (“Human Resources”) approved the plaintiff’s FMLA leave application

because it was “under the impression that the application had been submitted through the chain-

of[-]command.” Def.’s Mem., Ex. 4 (July 27, 2010 Email) at 45; see also Def.’s Facts II ¶ 6;

Pl.’s Opp’n, Ex. 8 (May 26, 2010 Email From Plaintiff’s Supervisor to Human Resources (“May


3
 Hereinafter, the Court will refer to the District of Columbia Metropolitan Police Department as the “D.C. Police
Department” or the “Department.”
4
  Although immaterial, the plaintiff has not explained why she sought leave for any period of time earlier than May
25, 2010.
5
  In referencing the parties’ exhibits, the Court will use as pincites the numbers assigned to the pages of the exhibits
by the Court’s electronic court filing (“ECF”) system.



                                                           2
26, 2016 Email”)) at 2. On May 27, 2010, in an email, the defendant informed the plaintiff that

Human Resources “granted [her FMLA leave application] in error” and was “immediately

rescinding the approval” because “no one within [her] chain-of[-]command had any knowledge

of the [FMLA] application being filed[.]” Def.’s Mem., Ex. 4 (July 27, 2010 Email) at 45.

Instead, the email “urge[d]” the plaintiff to “resubmit the [FMLA leave] application through the

proper channels.” Id.

       On July 28, 2010, the plaintiff again applied for FMLA leave to be used “[i]ntermittently

as medically necessary.” Def.’s Mem., Ex. 5 (July 2010 FMLA Leave Application (“Second

FMLA Leave Appl. I”)) at 49; see also Pl.’s Facts ¶ 3. The FMLA leave application was

apparently denied, see Pl.’s Opp’n, Ex. 5 (July 2010 FMLA Leave Application (“Second FMLA

Leave Appl. II”)) at 5 (“FMLA disapproved—annual leave approved”), but the defendant claims

that “what happened to this application” is “unclear,” Def.’s Mem. at 2.

       On or about August 18, 2010, the plaintiff submitted a third FMLA leave application “to

be used intermittently from August 22, 2010 [through] December 11, 2010.” See Pl.’s Opp’n,

Ex. 5 (August 2010 FMLA Leave Application (“Third FMLA Leave Appl.”)) at 10; see also

Pl.’s Facts ¶ 4. The following day, the application was approved. See Def.’s Facts II ¶ 11; Pl.’s

Opp’n, Ex. 9 (August 19, 2010 Internal Defendant Email (“Aug. 19, 2010 Email”)) at 2. The

plaintiff asserts that nobody told her that the FMLA request had been approved. See Def.’s Facts

II ¶ 12. Instead, on August 24, 2010, the plaintiff received a note informing her that her third

application was denied and advising her that if her “situation” continued, she needed to consider

taking a leave of absence to afford the defendant an opportunity to hire a replacement. Pl.’s

Opp’n, Ex. 5 (August 24, 2010 Note From Defendant to Plaintiff (“Aug. 24, 2010 Note”)) at 10-

11. Ultimately, this third application was approved on or about October 1, 2010. See Def.’s




                                                 3
Facts II ¶ 18; see also Pl.’s Opp’n, Ex. 5 (Third FMLA Leave Appl.) at 13 (handwritten notations

indicating that third FMLA application was approved).

       As a result of the FMLA leave denials, the plaintiff notes that she “was forced to use 112

[sick and annual] leave hours” between May 25, 2010, and October 1, 2010. Pl.’s Surreply at 2.

       B.      The Defendant’s Alleged Retaliation

       On or about September 9, 2010, the plaintiff complained to the D.C. Police Department’s

Equal Employment Opportunity Office (“EEO”) about the denial of her requests for FMLA

leave. Def.’s Facts II ¶ 15; see also Pl.’s Opp’n, Ex. 10 (September 9, 2010 Email From D.C.

Police Department EEO to Plaintiff (“Sept. 9, 2010 Email”)) at 2. Thereafter, she alleges that the

Department took “a series of retaliatory actions” against her, including the issuance of “two low

performance reviews that made her ineligible for promotion” in 2010 and 2011. Pl.’s Opp’n, Ex.

1 (Lovely-Coley Aff.) ¶ 15; see also id. ¶ 16; Pl.’s Opp’n, Ex. 2 (Lovely-Coley Dep.) at 116:14-

120:8. The plaintiff eventually appealed these performance evaluations internally, and they

“were upgraded.” Def.’s Mem. at 7; see also Pl.’s Surreply at 3 (“[T]he [low] reviews were only

overturned after a lengthy appeal process.” (citing Pl.’s Opp’n, Ex. 2 (Lovely-Coley Dep.) at

92:5-93:6)).

       C.      Damages

       Following these events, the plaintiff commenced this litigation, asserting interference and

retaliation claims pursuant to the FMLA. See Compl. ¶¶ 1-34. She seeks damages of $4,118.00,

which is the alleged monetary value of the 112 hours of sick and annual leave she used between

May 25, 2010, and October 1, 2010, as well as $557,370.00 in compensation from lost

promotion potential. Pl.’s Surreply at 6; see also Compl. at 9. The defendant has moved for

summary judgment, which the plaintiff opposes.




                                                4
                                II.     STANDARD OF REVIEW

       Courts will grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “A fact is material ‘if it might affect the outcome of the suit under

the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the non[-]moving party.’” Steele v. Schafer, 535 F.3d

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

       On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255 (citation

omitted). “Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a

motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the

absence of a genuine issue of material fact and that the non-moving party “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

       In responding to a summary judgment motion, the non-moving party “must do more than

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party

must not rely on “mere allegations or denials . . . but must set forth specific facts showing that

there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (one ellipsis omitted) (quoting

First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). “The mere existence of

a scintilla of evidence in support of the [non-moving party’s] position [is] insufficient” to defeat




                                                  5
a motion for summary judgment, as “there must be [some] evidence on which the jury could

reasonably find for the [non-movant].” Id. at 252.

                                        III.    ANALYSIS

       “The [FMLA] entitles eligible employees to take up to [twelve] work weeks of unpaid

leave annually for any of several reasons, including the onset of a ‘serious health condition’ in an

employee’s spouse, child, or parent.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724

(2003) (quoting 29 U.S.C. § 2612(a)(1)(C)). It “creates a private right of action to seek both

equitable relief and money damages ‘against any employer . . . ,’ should that employer ‘interfere

with, restrain, or deny the exercise of’ FMLA rights[.]” Id. at 724-25 (first quoting 29 U.S.C. §

2617(a)(2); and then quoting 29 U.S.C. § 2615(a)(1)). “An employer may be held liable for

violating the FMLA under two distinct claims: (1) interference, if the employer restrained,

denied, or interfered with the employee’s FMLA rights, and (2) retaliation, if the employer took

adverse action against the employee because the employee took leave or otherwise engaged in

activity protected by the Act.” Holloway v. District of Columbia, 9 F. Supp. 3d 1, 7 (D.D.C.

2013) (citing Deloatch v. Harris Teeter, 797 F. Supp. 2d 48, 64 (D.D.C. 2011); Price v. Wash.

Hosp. Ctr., 321 F. Supp. 2d 38, 45-46 (D.D.C. 2004)). “Under both the interference and

retaliation theories, the FMLA affords relief only for actual damages,” and thus, “[p]rejudice to

the employee is a necessary element of these claims . . . .” Roseboro v. Billington, 606 F. Supp.

2d 104, 108 (D.D.C. 2009) (citation and footnote omitted). “An FMLA violation prejudices an

employee only when the ‘employee loses compensation or benefits by reason of the violation,

sustains other monetary losses as a direct result of the violation, or suffers some loss in

employment status remediable through appropriate equitable relief.’” Id. at 108 (quoting Reed v.

Buckeye Fire Equip., 241 F. App’x 917, 924 (4th Cir. 2007)). The defendant concedes that as to




                                                  6
both the interference and retaliation claims, “[t]he only issue in this case is whether [the plaintiff]

has suffered any harm compensable under the [FMLA].” Def.’s Reply at 1. Given this

concession, and drawing all justifiable inferences in favor of the plaintiff, summary judgment on

the issue of prejudice is improper.

         First, with respect to the interference claim, although the defendant maintains that it has

permitted the plaintiff to take leave whenever she needed, see Def.’s Mem. at 2-3 (identifying

leave dates), that does not necessarily render summary judgment appropriate, see McFadden v.

Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 3, 7 (D.C. Cir. 2010) (“[The plaintiff] can

succeed on her [interference] claim under the FMLA without showing [that the defendant]

denied her any leave she requested . . . .” (citations omitted)). There is at least a genuine dispute

as to whether she properly elected to take FMLA leave to care for her daughter, see Pl.’s Opp’n,

Ex. 6 (June 1991 Special Order (“Special Order”)) at 1 (“Members are eligible to use any one, or

combination of, annual leave, personal leave days, compensatory leave, or leave without pay, as

family leave[.]”), as well as whether the defendant’s conduct deterred the plaintiff from taking

FMLA leave—thereby compelling her to use sick and annual leave hours, see Pl.’s Opp’n, Ex. 2

(Lovely-Coley Dep.) at 120:9-22. If so, a reasonable jury could find that the defendant’s alleged

conduct prejudiced the plaintiff because she was forced to use sick and annual leave hours that

she otherwise would not have taken, see Pl.’s Surreply at 2-3; see also Def.’s Mem., Ex. 6 (June

2010 Through January 2011 Attendance Records (“Attendance Records”)) at 2-19, and that this

loss in benefits is compensable through monetary relief, such as the value of each hour of leave

she unnecessarily used, 6 see McFadden, 611 F.3d at 3, 7 (reversing summary judgment on


6
  To the extent the plaintiff seeks any monetary compensation for the time she lost with her dying child, Pl.’s Facts
¶ 7 (“A mother’s lost time with a dying child is quantifiable.”), such relief is prohibited, see, e.g., Rodgers v. City of
Des Moines, 435 F.3d 904, 909 (8th Cir. 2006) (“Our sister circuits . . . have held emotional distress damages are
                                                                                                          (continued . . . )


                                                             7
FMLA retaliation claim where reasonable jury could find that defendant discouraged plaintiff

from taking FMLA leave), or equitable relief such as the restoration of the plaintiff’s annual and

sick leave hours.

         Second, as to the retaliation claim, despite the fact that the plaintiff’s low performance

reviews in 2010 and 2011 were favorably changed after an appeal process, there remains a

genuine dispute as to whether the performance evaluations hurt her candidacy for promotion at

the time she received those reviews, which occurred well before her performance reviews were

amended. See Gordon v. U.S. Capitol Police, 778 F.3d 158, 162-63 (D.C. Cir. 2015) (allegations

of “diminish[ed] . . . prospects for pay increases, promotion, and transfer” constitute prejudice).

A jury could reasonably find that the plaintiff was prejudiced because the defendant “prevented

the [plaintiff] from advancing to a [more senior position]” in 2010 and 2011, Pl.’s Surreply at 3,

and such a denial is compensable through monetary relief, such as the amount of salary increase

she would have received upon a proper, non-retaliatory performance evaluation, see 29 U.S.C. §

2617 (a)(1)(A)(i)(I) (monetary damages include “any wages, salary, employment benefits, or

other compensation denied or lost”); see also Gordon, 778 F.3d at 162-63, or equitable relief

such as a promotion, see 29 U.S.C. § 2617 (a)(1)(B) (“appropriate” equitable relief “includ[es]

employment, reinstatement, and promotion”).

                                              IV.      CONCLUSION

         The plaintiff has shown that genuine disputes of material fact exist as to whether the

defendant interfered with her rights under the FMLA and retaliated against her for attempting to

( . . . continued)
not recoverable under the FMLA. These courts have reasoned that because the FMLA specifically lists the types of
damages for which an employer may be liable and the list includes only the actual monetary losses of the employee,
the FMLA does not permit recovery for emotional distress damages.” (citations omitted)); Knussman v. State, 65 F.
Supp. 2d 353, 356-57 (D. Md. 1999) (“[E]vidence of emotional distress and lost time with . . . newborn daughter as
consequential damages resulting from the . . . FMLA violations . . . are not recoverable . . . .”), aff’d in part, vacated
in part, remanded, 272 F.3d 625 (4th Cir. 2001).



                                                            8
exercise those rights. More specifically, a reasonable jury could find that the defendant’s alleged

conduct prejudiced her in such a manner that either monetary or equitable relief can remedy that

prejudice. Accordingly, the Court must deny the defendant’s summary judgment motion.

          SO ORDERED on this 8th day of June, 2016. 7

                                                            REGGIE B. WALTON
                                                            United States District Judge




7
    The Court has contemporaneously issued an Order consistent with this Memorandum Opinion.



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