An employee’s request to take time off under the Family and Medical Leave Act (FMLA) is a protected activity, regardless of whether the employee was actually entitled to the requested leave, the 6th U.S. Circuit Court of Appeals has ruled for the first time.

The plaintiff in Milman v Fieger & Fieger, PC, et al. (Docket No. 21-2685) worked for the defendant-law firm. She was fired after requesting unpaid leave to care for her son, who had a history of respiratory illness and was exhibiting symptoms of COVID-19.

The plaintiff filed this action against the defendant in the U.S. District Court for the Eastern District of Michigan, claiming that her firing violated the FMLA. The Eastern District dismissed the plaintiff’s claims. According to the court, the plaintiff was not entitled to FMLA relief because she “failed to argue whether she was entitled to leave” and, even if she had, she did not allege sufficient facts to support that her son suffered from a “serious health condition” to “create an entitlement to leave.”  

The 6th Circuit reversed and remanded.

“[W]e conclude that [the plaintiff’s] Complaint ‘state[s] a claim to relief that is plausible on its face’ with respect to her FMLA claim, and the district court erred in dismissing the case,” Judge Jane B. Stranch wrote for the panel, joined by Judge Raymond M. Kethledge.

Judge John B. Nalbandian wrote a separate concurring opinion.

Background

The plaintiff, Polina Milman, began working as an attorney at the defendant-law firm, Fieger & Fieger, PC, in 2018. As part of her benefits package, she was entitled to two weeks of paid vacation, three personal days and two sick days. As of March 2020, the plaintiff had used five vacation days and two sick days.

A state of emergency was declared in Michigan on March 13, 2020, as a result of the COVID-19 pandemic. Schools and daycare facilities closed immediately. The plaintiff became worried that her children’s daycare had been closed due to COVID-19 and had concerns about her son’s increased vulnerability to contracting COVID-19 because of his history of respiratory illness.

She asked to work at home for a few days in mid-March 2020. Geoffrey Fieger, the owner of the defendant-law firm, denied the plaintiff’s request. The plaintiff then contacted human resources to use some paid time off (PTO), which was quickly approved.

Subsequently, the Michigan Governor issued an executive order that prohibited gatherings of more than 50 people. A memo was issued by Fieger instructing the firm’s employees to “contact the firm if anyone in their family contracted COVID-19.” At this time, the plaintiff explained to her direct supervisor that her son was exhibiting symptoms of COVID-19. As a result, she worked at home for one day and, although her son’s COVID-like symptoms had worsened, she told her supervisor she would be in the office the next day.

The next day, the number of COVID-19 cases in Michigan skyrocketed and the plaintiff’s son’s condition had not improved. The plaintiff contacted human resources with her concerns about working in the office and “offered to take unpaid leave, if necessary, to stay out of the office.” Human resources emailed the plaintiff and told her that she could work from home for the rest of that week. The plaintiff forwarded that email to her supervisor and worked with him from home that day.

By the end of that workday, however, the plaintiff received an email from human resources with a letter signed by Fieger that terminated her employment. The letter stated: “You failed to come in to work on Monday and Tuesday and indicated that you were taking personal time off. You assured your supervisor … that you were going to come in on Thursday. Today, Thursday, you did not come into work and indicated that your child had a minor cold …. Today will be your last day on our payroll.”

When the plaintiff subsequently requested her personnel files, Fieger sent a second termination letter that said: “’[Milman] made it clear by [her] activity that [she] had no intention of coming into work’; she refused to work because her ‘child had a cold’; and ‘[a]t that point, it was clear [she] had quit.’”

Thereafter, the plaintiff sued the defendant in the U.S. District Court for the Eastern District of Michigan. Her complaint included a federal claim asserting that her firing violated the FMLA. She also brought a state-law claim of wrongful discharge in violation of public policy. She subsequently amended her complaint to include state-law claims of defamation and false light.

The Eastern District granted the defendant’s motion to dismiss the complaint, concluding the plaintiff had failed to state a claim. The district court also declined to exercise supplemental jurisdiction over the remaining state-law claims. According to the federal district court, 6th Circuit precedent required the plaintiff show that “she was entitled to FMLA leave” to sustain her claim. The federal district court found that the plaintiff did not assert a plausible FMLA claim because she “failed to argue whether she was entitled to leave,” and, even if she had, she did not allege facts to support that her son suffered from a “serious health condition” to create an entitlement to leave.

The plaintiff appealed.

Protected Activity

On appeal, the plaintiff argued the Eastern District wrongly held that she was required to prove entitlement to FMLA leave to sustain her retaliation claim, where she made a request for unpaid leave but did not actually take any leave. She asserted that her initial request for unpaid leave fell within the scope of protected activity under the FMLA.

Meanwhile, the defendant argued that 6th Circuit precedent requires entitlement to leave in order to be engaged in protected activity under the FMLA.

Therefore, “[t]he scope of protected activity under the FMLA is, therefore, at the heart of this case,” the 6th Circuit observed.

According to the 6th Circuit, the Eastern District wrongly designated 29 USC §2615(a)(2) as the only statutory basis for the plaintiff’s retaliation claim. Rather, the plaintiff’s “core” claim - that she was fired for inquiring about and making a request to take FMLA leave, which she argued is protected activity under the FMLA - was viable under both §2615(a)(1) and §2615(a)(2), the panel said.

The 6th Circuit continued by explaining the plaintiff had to establish certain factors to state a claim for retaliation for exercising - or trying to exercise - her FMLA rights. Those factors are: 1) she was engaged in protected activity; 2) her employer knew she was engaged in the protected activity; 3) her employer took an adverse employment action against her; and 4) there was a causal connection between the protected activity and the adverse employment action.

Only the first two factors were at issue in this case, the 6th Circuit said. “The remaining elements of [the plaintiff’s] retaliation claim - that her termination constituted an adverse employment action, and that there was a causal connection between the protected activity - are not in dispute here and were not disputed before the district court. On the facts alleged, the key question is whether [the plaintiff’s] request for leave, regardless of whether she was entitled to the requested leave, is a protected right under the FMLA.”

According to the 6th Circuit, the plaintiff attempted to participate in the FMLA process by asking for unpaid leave and the defendant acknowledged her request based on its response of offering an alternative accommodation for her to work from home for a few days. “[The plaintiff’s] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA,” the panel said.

In addition, the 6th Circuit said it joined other federal circuits that “have treated an employee’s notice of need - regardless of whether the employee was ultimately entitled to the leave - as protected conduct.”

The 6th Circuit also rejected the defendant’s lack of notice argument. The defendant “had notice that [the plaintiff] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. … This knowledge gave rise to a duty for the [defendant] to, at minimum, engage in the communication required by the statute. The [defendant] neither sought to clarify [the plaintiff’s] request nor did it attempt to obtain ‘a certification issued by a healthcare provider of … [her] son’ to determine whether her request fell outside the scope of the Act. … Instead, the [defendant] offered a work-from-home arrangement - which [the plaintiff] accepted - and then terminated her after the first day for failing to ‘come into work,’ indicating that her ‘child had a minor cold.’”

As a result, “[w]e conclude that [the plaintiff’s] request for leave was protected - even if she ultimately was not entitled to it - and that the district court erred in concluding that her request fell outside the FMLA’s scope,” the 6th Circuit wrote. “[The plaintiff’s complaint] thus sufficiently alleges facts to establish that she was engaged in protected activity.”

Concurrence

In his concurring opinion, Judge Nalbandian said that pursuant to 6th Circuit precedent, “someone who takes a leave that turns out not to be authorized by the FMLA has no FMLA claim.”

However, in this case, the plaintiff alleged “that she was actually fired for requesting FMLA leave, not for taking leave,” the judge said. “I expect that these questions, along with whether [the plaintiff] provided adequate notice to Fieger & Fieger, will be resolved as the record is developed, but for now, I agree that this claim should proceed.”

Judge Nalbandian also said he agreed that the plaintiff’s request could qualify for protection as an “attempt to exercise” FMLA leave. “… I write separately because I believe that claims like hers should arise solely under 29 U.S.C. § 2615(a)(1).”

In addition, the judge pointed out there is a “serious question” about whether the plaintiff provided sufficient notice. “She will have to prove that she provided her employer with ‘enough information’ to conclude that she needed to take FMLA leave to care for her son with a serious medical condition.”