Polina Milman v. Fieger & Fieger, P.C. ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
POLINA MILMAN,
│
Plaintiff-Appellant, │
> No. 21-2685
│
v. │
│
FIEGER & FIEGER, P.C., dba Fieger, Fieger, Kenney & │
Harrington, P.C.; GEOFFREY NELS FIEGER, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-12154—Stephen J. Murphy, III, District Judge.
Argued: May 4, 2022
Decided and Filed: January 25, 2023
Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Molly Savage, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for
Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C.,
Southfield, Michigan, for Appellees. ON BRIEF: Molly Savage, Deborah L. Gordon,
Elizabeth Marzotto Taylor, Sarah Gordon Thomas, DEBORAH GORDON LAW, Bloomfield
Hills, Michigan, for Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY &
HARRINGTON, P.C., Southfield, Michigan, for Appellees.
STRANCH, J., delivered the opinion of the court in which KETHLEDGE and
NALBANDIAN, JJ., joined. NALBANDIAN, J. (pp. 18–23), delivered a separate concurring
opinion.
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 2
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. In March 2020, Fieger & Fieger, P.C., terminated
Polina Milman immediately after she made a request for unpaid leave to care for her two-year
old son—a child with a history of respiratory illness that was experiencing symptoms resembling
COVID-19. Milman sued Fieger & Fieger, P.C., and its owner, Geoffrey Fieger (collectively,
the Firm), alleging that her termination violated the Family and Medical Leave Act (FMLA).
The district court dismissed Milman’s FMLA claim, concluding that because she was not entitled
to the leave she sought, she could not state a plausible claim. For the reasons that follow, we
REVERSE and REMAND for further proceedings.
I. BACKGROUND
A. Factual Background
Because this case is addressed at the motion to dismiss stage, the following allegations as
set out in the First Amended Complaint1 are taken as true and construed in the light most
favorable to Milman. See Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp., 830 F.3d
376, 382–83 (6th Cir. 2016).
In May 2018, Milman was hired as an attorney at Fieger & Fieger, P.C., a Michigan law
firm. As an employee, she was annually entitled to two weeks of paid vacation, three personal
days of paid time off (PTO), and two sick days. By early March 2020, Milman had used five
days of vacation time and two sick days of her 2020 time off.
On Friday, March 13, 2020, President Trump declared a state of emergency as a result of
the rampant spread of COVID-19—a highly infectious respiratory illness. All schools and
daycare facilities immediately closed and would remain closed due to concerns about COVID-
19. Based on the imminent emergency, the Firm requested that Milman thoroughly clean her
1The First Amended Complaint, the operative complaint in this appeal, is referred to as “the Complaint”
herein.
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desk, and “pre-assigned certain teams of employees to work from home for one day in order to
provide for a test-run of those employees’ capability to work remotely on office equipment.”
Milman’s team was scheduled to work from home the following Wednesday, March 18.
Over the weekend, Milman e-mailed James Harrington, a partner at the Firm, to discuss
her concerns about COVID-19 exposure, and she requested to work from home on Monday,
March 16 and Tuesday, March 17. In her Saturday, March 14 e-mail, she noted her worry that
her children’s daycare facility had been closed due to COVID-19. The next day, Milman sent
another e-mail to Harrington, stating additional concerns about her son’s heightened
vulnerability to contracting COVID-19 as a result of his bout with Respiratory Syncytial Virus
(RSV)2—a dangerous respiratory infection that put him in the hospital for five days and required
his continued use of a nebulizer for his breathing episodes. In response, Harrington advised her
that he could not approve work-from-home requests and suggested that she make the request
directly to Geoffrey Fieger, the owner of the Firm. Harrington also advised Milman that if she
could not work from home, she could take PTO on those two days.
Early Monday morning, Milman called Fieger to request a remote working arrangement
for that day and the next (March 16 and 17), which he denied. Milman then contacted human
resources to use her PTO on those two days. By the end of the day, human resources approved
Milman’s use of PTO. On that same day, the federal government issued additional guidance to
curtail the spread of COVID-19, discouraging unnecessary travel and gathering in groups of
more than 10 people. Michigan Governor Whitmer also issued an executive order that banned
gatherings of more than 50 people, limited restaurant services, and ordered entertainment and
recreational venues to close.
On Tuesday, while Milman was out on PTO, Fieger sent a firmwide memo addressing the
Firm’s COVID-19 policies, instructing employees to “contact the firm if anyone in their family
contracted COVID-19.” Later that day, Marc Berlin, Milman’s direct supervisor, called her to
ask if she planned to return to the office on Thursday, March 19. She explained that she planned
2RSV is a serious respiratory illness that especially impacts young children, resulting in the hospitalization
of an estimated 58,000 children annually. See RSV in Infants and Young Children, Center for Disease Control and
Prevention (last updated Dec. 18, 2020), available at https://www.cdc.gov/rsv/high-risk/infants-young-children.html.
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 4
to return to the office but remained concerned about her children’s day care—which was still
closed due to COVID-19. Milman’s son had also developed symptoms resembling COVID-19,
based on the limited knowledge of the virus at that time: a cough, runny nose, and
gastrointestinal issues.
On Wednesday, Milman worked from home, as she was pre-assigned to do. Her son’s
symptoms persisted and worsened throughout the day. Berlin again contacted her to confirm
whether Milman would be in the office on Thursday, March 19, to which she responded
affirmatively.
On Thursday, confirmed COVID-19 cases in Michigan skyrocketed from 80 to 334.
Over the course of the morning, Milman’s son’s conditions did not improve, and she remained
concerned about working in person in the office if he had, in fact, contracted COVID-19.
Milman contacted Human Resources, “stating that her son’s symptoms were not any better and
that she had major concerns about working in the office because of her son’s condition,” and she
“offered to take unpaid leave, if necessary, to stay out of the office.” Human Resources
responded without addressing Milman’s request for unpaid leave and instead offered that she
could work from home for the remainder of the week. Milman accepted that offer, forwarded
Human Resources’ e-mail to Berlin, and worked with him as usual throughout the workday, but
from home. By the end of the day, however, Human Resources e-mailed Milman a letter, signed
by Fieger, that terminated her employment with the Firm and 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.
On March 23, Milman requested her personnel file pursuant to Mich. Comp. Laws
§ 423.501 (1979). The very next day, Fieger sent a second termination letter now stating that:
“[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.”
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 5
B. Procedural History
On August 11, Milman sued the Firm, asserting a federal claim that her discharge
violated the FMLA and a state law claim of wrongful discharge in violation of public policy.
She later filed an amended complaint, adding state law claims of defamation and false light.
The Firm moved to dismiss Milman’s Complaint. The district court granted the motion,
concluding that Milman had failed to state a claim under the FMLA and declining to exercise
supplemental jurisdiction over the remaining state law claims. The court reasoned that Sixth
Circuit precedent required Milman to show that “she was entitled to FMLA leave” to sustain her
FMLA retaliation claim. Because Milman “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 court found that she had not alleged a
plausible FMLA retaliation claim. Milman timely appealed.
II. ANALYSIS
We review de novo the district court’s order of dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th
Cir. 2008). “We construe the complaint in the light most favorable to the plaintiff, accept all
well-pleaded factual allegations as true, and examine whether the complaint contains ‘sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Ohio Pub.
Emps. Ret. Sys., 830 F.3d at 382–83 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
On appeal, Milman argues that the district court erred in concluding 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 argues that her initial request for unpaid
leave fell within the scope of protected activity under the FMLA. The Firm contends that our
precedent requires entitlement to leave in order to be engaged in protected activity under the
FMLA. The scope of protected activity under the FMLA is, therefore, at the heart of this case.
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A. The Family and Medical Leave Act
Congress enacted the FMLA “to balance the demands of the workplace with the needs of
families, to promote the stability and economic security of families, and to promote national
interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1)–(5). The FMLA does so by
conferring on eligible employees “two interrelated, employee substantive rights”: “the . . . right
to use a certain amount of leave for protected reasons, and . . . [the] right to return to . . . an
equivalent job after using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,
1122 (9th Cir. 2001). “These rights are essentially prescriptive, ‘set[ting] substantive floors’ for
conduct by employers, and creating ‘entitlements’ for employees.” See Hodgens v. Gen.
Dynamics Corp., 114 F.3d 151, 159 (1st Cir. 1998) (quoting Diaz v. Fort Wayne Foundry Corp.,
131 F.3d 711, 712–13 (7th Cir. 1997)).
In enacting the FMLA, Congress carefully implemented employees’ right to unpaid leave
“in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3).
To that end, the FMLA limits who is eligible for FMLA leave: only those employees who
worked for a covered employer for at least 12 months and have accumulated at least 1,250 hours
of service with that employer in the previous 12 months. Id. § 2611(2)(A). And the Act
specifies when those eligible can exhaust their right to leave: in circumstances that qualify for
FMLA leave, including, for example, a serious health condition that makes the employee unable
to perform his or her job, or the need to care for a spouse, child, or parent with a serious health
condition. See id. § 2612(a)(1)(C); see also § 2612(a)(1)(A)–(F).
Keeping the balance between protecting employees’ right to leave and employers’
legitimate interests in mind, the FMLA also prescribes a procedural framework to govern how
employees may access their statutory entitlements. The framework contemplates an interactive
dialogue between the employee and the employer, starting with an employee’s formal request for
leave, usually 30 days before the leave is to begin, but in any case, as soon as “practicable.” See
id. § 2612(e). Following an employee’s initial notice to the employer, employers may request
medical certification issued by the healthcare provider of the employee to establish that leave is
actually necessary. See id. § 2613(a). Employers may also request a second or even third
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 7
medical opinion from different healthcare providers, including one chosen by the employer, if
there are questions about an employee’s entitlement to leave. Id. § 2613(c)(1).
B. FMLA Protections of Employee Rights
In addition to the grant of substantive rights described earlier, the FMLA enumerates
prohibited acts. 29 U.S.C. § 2615(a). First, “Congress made it unlawful for an employer to
‘interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided’ by
the Act.” Bachelder, 259 F.3d at 1122 (quoting 29 U.S.C. § 2615(a)(1)). Second, Congress
made it unlawful for employers to “discriminat[e] against any individual for opposing any
practice made unlawful” by the Act. 29 U.S.C. § 2615(a)(2).
Milman’s Complaint alleges a retaliation claim under the FMLA without reference to a
precise statutory subsection. The district court cabined Milman’s claim to § 2615(a)(2),
reasoning that our caselaw designates § 2615(a)(2) as the sole basis for retaliation claims.
Milman notes that the distinction between the two prongs of § 2615(a) has proven to be an
unfortunate source of confusion in our circuit and others, and raises the question of whether the
district court properly designated § 2615(a)(2) as the statutory basis for her claim. See Phillips v.
Mathews, 547 F.3d 905, 913–15 (8th Cir. 2008) (Colloton, J., concurring). At oral argument, the
Firm conceded that “this is an [§ 2615](a)(1) case,” acknowledging that the claim more naturally
falls within the text of that provision. Recording of Oral Arg. at 33:12–33:55.
In the two subsections of § 2615(a), the FMLA recognizes two types of claims. The first,
known as an entitlement or interference claim, arises when an employee is wrongfully denied a
substantive entitlement—for example, the employee is denied leave to which she is entitled. See
Hoge v. Honda of Am. Mfg., 384 F.3d 238, 244 (6th Cir. 2004). In this type of claim, “the
plaintiff need not show that he was treated worse than other employees, just that he was denied
an entitlement under the Act.” Id. The second type of claim, generally known as a retaliation or
discrimination claim, arises when an employer takes an adverse employment action against the
employee for exercising or attempting to exercise a right protected by the FMLA. See Bryant v.
Dollar Gen. Corp., 538 F.3d 394, 400–02 (6th Cir. 2008).
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 8
The confusion arises over the statutory subsection for retaliation claims. Some panels of
our court and other circuits have identified § 2615(a)(2) as the statutory basis for retaliation
claims, and have limited § 2615(a)(1) to entitlement claims only. See id. at 400; see also
Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 810–11 (8th Cir. 2012) (applying the same
dichotomy); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006)
(same). In Bryant, we explained that the structure of the FMLA and legislative history “strongly
support interpreting § 2615(a)(2) as prohibiting retaliation against employees” who engage in
protected activity. Bryant, 538 F.3d at 401–02. Thus, Bryant suggests that § 2615(a)(2)
provides the statutory basis for Milman’s retaliation claim.
But, as we and other circuits have recognized, a retaliation claim may also be cognizable
under § 2615(a)(1). Wysong v. Dow Chem. Co., 503 F.3d 441, 446–47 (6th Cir. 2007); Smith v.
City of Niles, 505 F. App’x 482, 486 (6th Cir. 2012) (citing Skrjanc v. Great Lakes Power Serv.
Co., 272 F.3d 309, 315 (6th Cir. 2001)); see also Woods v. START Treatment & Recovery Ctrs.,
Inc., 864 F.3d 158, 167 (2d Cir. 2017). Section 2615(a)(1) makes it unlawful for an employer
“to interfere with, restrain, or deny” the exercise or attempted exercise of any right protected
under the FMLA. Logically, an adverse employment action in response to the exercise of (or the
attempt to exercise) a statutory right—retaliation for engaging in protected activity—is a form of
interference or restraint on the ability to exercise that statutory right. Constraining § 2615(a)(1)
to wrongful denials of FMLA entitlements only and making § 2615(a)(2) the only avenue for
recourse against adverse employment action would ignore the plain text of § 2615(a)(1). As the
Second Circuit recognized, an “adverse employment action in the face of a lawful exercise of
FMLA rights fits comfortably within § 2615(a)(1)’s ‘interfere with, restrain, or deny’ language.”
Woods, 864 F.3d at 167. Under this statutory language, it makes little sense to cabin solely to
§ 2615(a)(2) retaliation claims that are based on the exercise or attempt to exercise FMLA rights.
Termination of an employee for exercising or attempting to exercise rights under the FMLA falls
squarely within the plain language of § 2615(a)(1) too, as the Firm concedes here.
In the context of the statutory provisions of the FMLA, the distinction between
§ 2615(a)(1) and § 2615(a)(2) is of no practical consequence, as the First Circuit explained:
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The distinction would matter if the standards of proof used turned on
which statutory section were pled . . . Yet, whether a claim is characterized as
‘interference’ or not, its elements actually differ depending on whether the
plaintiff is, at bottom, claiming that the employer denied his or her substantive
rights under the FMLA or that the employer retaliated against him or her for
having exercised or attempted to exercise those rights.
Colburn v. Parker Hannifin, 429 F.3d 325, 331–32 (1st Cir. 2005). Thus, this case leaves
undisturbed our past precedent that has analyzed retaliation claims under § 2615(a)(2).
Turning to this case, Milman’s core claim is that she was fired for inquiring about and
making a request to take FMLA leave, which she argues is protected activity under the FMLA.
As explained above, the issue is clearly cognizable under both prongs of § 2615(a).
To state a claim for retaliation for exercising (or attempting to exercise) FMLA rights,
Milman must establish that: (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. See Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (citation
omitted). Here, only the first two elements are at issue. The remaining elements of Milman’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 Milman’s
request for leave, regardless of whether she was entitled to the requested leave, is a protected
right under the FMLA.
C. Scope of Protected Activity Under the FMLA
In assessing whether Milman’s conduct fell within the scope of protected activity under
the FMLA, the district court largely relied on Branham v. Gannet Satellite Info. Network, Inc.,
619 F.3d 563, 568 (6th Cir. 2010), in holding that our precedent requires entitlement to FMLA
leave. Because Milman did not allege entitlement to the leave she requested, the court
determined that she had not engaged in protected activity under the FMLA and her retaliation
claim failed. Milman contends that the district court erred by relying exclusively on Branham,
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that the Branham statement on which the court relied was non-binding dicta, and that the case is
distinguishable.
It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain
circumstances. In the more common circumstance, if an employee actually takes leave without
being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the
FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to
which the employee was not entitled unambiguously falls outside the FMLA’s protections. That
was largely the issue in Branham. See id. at 567, 571–73. There, the plaintiff was terminated for
excessive absenteeism after she had taken multiple, extended leaves and then put her employer
on notice that she intended to take additional unpaid leave. Id. at 565–67. Because the plaintiff
took leave and the employer terminated her for being absent pursuant to that leave, the claim in
Branham hinged on whether the leave plaintiff took was actually protected. Id. at 568. Finding
disputes of material fact as to the entitlement issue, we reversed the district court’s grant of
summary judgment, and remanded the case for trial. Id. at 574. The other cases in this circuit,
cited by the Firm and the district court, grappled with that same fact pattern—where employees
took leave to which they were ultimately not entitled—and so, unsurprisingly, those cases also
hinged on entitlement to leave. See, e.g., Morris v. Family Dollar Stores of Ohio, Inc., 320 F.
App’x 330, 337–38 (6th Cir. 2009) (concluding that because plaintiff was not entitled to the
leave he took, he was not engaged in protected activity); Katoula v. Detroit Ent., LLC, 557 F.
App’x 496, 498–99 (6th Cir. 2014) (same); Palmer v. Cacioppo, 429 F. App’x 491, 496–97 (6th
Cir. 2011) (same); Nawrocki v. United Methodist Ret. Cmtys. Inc., 174 F. App’x 334, 339 (6th
Cir. 2006) (same).
This case presents an entirely different circumstance. Milman never actually took leave;
she only made a request for leave. Faced with similar arguments and similar precedent requiring
entitlement, then-Tenth Circuit Judge Gorsuch recognized the same distinction, concluding that
the question was “open and contestable.” See Wilkins v. Packerware Corp., 260 F. App’x 98,
103 (10th Cir. 2008). Then-Judge Gorsuch provided an explanatory hypothetical: “[i]f . . . an
employee took time off to care for an ailing spouse, . . . only to discover that the spouse had been
misdiagnosed and did not suffer from a serious health condition, it would arguably serve to
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defeat the purpose of the statute to allow the employer to fire the employee on the basis of a
doctor’s misdiagnosis.” Id. This case does not involve a plaintiff who took the leave requested,
as in Branham; instead, the question is whether the FMLA protects the right of an employee to
inquire about and request leave even if it turns out that she is not entitled to such leave. For an
answer, we first look to the plain language of the statute.
The FMLA’s language, as explained earlier, requires employees to put their employers
on notice of their desire to use their unpaid leave by making a formal request to the employer.
29 U.S.C. § 2612(e). This is the first step in the process contemplated by the FMLA’s
procedural framework. See supra pp. 6–7 (discussing procedural framework of FMLA); see also
29 U.S.C. § 2601(b)(3) (specifying that the FMLA is designed “in a manner that accommodates
the legitimate interests of employers”). Because this process facilitates both employees’ access
to their statutory right to take unpaid leave and employers’ ability to assess the validity of an
FMLA request, the entirety of the process must be harmonized with the statute’s provisions
entitling employees to leave. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (instructing courts to interpret statutes in a manner that “fit[s], if possible, all parts
into an harmonious whole” (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959))).
To do so here, the steps of the process created by the FMLA—including the first step, i.e., the
employee’s initial request for leave—must be protected activity under the Act. FMLA rights and
the statute’s purpose would be significantly diminished if employers could fire an employee who
simply took the required initial steps to access FMLA leave.
This understanding comports with the broader statutory scheme. See Brown &
Williamson Tobacco Corp., 529 U.S. at 133. There is no basis for imagining that Congress
created a statutory scheme that puts the onus on employees to know preemptively whether their
leave requests would fall within the scope of statutory entitlement—an aspect of the FMLA that
is hardly a model of clarity, see, e.g., Morris, 320 F. App’x at 336–38 (grappling with definition
of “serious health condition”). That view would, as the First Circuit put it, create an “‘ask at
your peril’ approach [that] could deter employees, including eligible employees uncertain of the
extent of their rights, from taking the first step necessary to exercise their rights.” McArdle v.
Town of Dracut/Dracut Pub. Sch., 732 F.3d 29, 36 (1st Cir. 2013). Under that interpretation, the
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statutory structure itself would chill employees’ willingness to exercise their rights under the
FMLA. And chilling an employee’s ability to exercise her statutory rights goes to the very heart
of conduct that § 2615(a)(1) seeks to redress. See, e.g., Bachelder, 259 F.3d at 1124(“Employees are, understandably, less likely to exercise their FMLA leave rights if they can
expect to be fired or otherwise disciplined for doing so.”).
Suppose that an employee, intending to exercise her FMLA rights, meets with her
employer and asks questions concerning her FMLA rights, then is fired for doing so.
Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to
leave would render the employee unprotected during the step required to initiate the FMLA’s
process. Without protection, employees would be discouraged from taking authorized initial
steps—including preparing or formulating a request—to access FMLA benefits. We are not to
impose nonsensical readings of a statute “if alternative interpretations consistent with the
legislative purpose are available.” Donovan v. FirstCredit, Inc., 983 F.3d 246, 254 (6th Cir.
2020) (quoting Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012)).
Accordingly, for the Act to protect the “exercise or attempt to exercise” FMLA rights, the
procedural framework the statute established—including its first step—must fall within the scope
of protected activity, without regard to ultimate entitlement.
In alignment with these points, other circuits have treated an employee’s notice of need—
regardless of whether the employee was ultimately entitled to the leave—as protected conduct.3
The Eighth Circuit in Wierman v. Casey’s General Stores reasoned that “[i]n order to benefit
from the protections of the statute, an employee must provide [her] employer with enough
information to show that [she] may need FMLA leave.” 638 F.3d 984, 1000 (8th Cir. 2011)
(emphasis added) (quoting Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005)).
In rejecting the argument that an employee’s termination before FMLA certification means that
she never exercised her FMLA leave, the Eighth Circuit treated the employee’s notice of need as
3We, too, have recently explained that “[e]mployers are charged with knowing about FMLA protected
activity as soon as an employee requests leave, even if it turns out the employee was not entitled to benefits. It is the
request that is protected activity.” Render v. FCA US, LLC, 53 F4th 905, 920 (6th Cir. 2022) (emphasis in original)
(also noting that employer knew employee was “engaging in protected activity” when he first applied for FMLA
leave).
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protected conduct or an exercise of FMLA rights. See id. The employer’s duties arose, and it
was not allowed to use its termination of the employee before the deadline for submission of
FMLA paperwork to argue that the employee never exercised her FMLA rights. Id. The First
Circuit made a similar observation, noting that “[r]equesting leave is also an FMLA-protected
right . . . for which retaliation conceivably could be wrongful even where the leave itself was
unprotected.” Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 793 (1st Cir. 2011).
In a related circumstance, the Seventh Circuit recently held that an employer need not
formally deny a request for leave to violate the FMLA. See Ziccarelli v. Dart, 35 F.4th 1079,
1085–86 (7th Cir. 2022). The court explained that the FMLA broadly prohibits an employer’s
activity that restrains, limits, or discourages an employee’s exercise or attempt to exercise FMLA
rights. Id. That can happen even “without explicitly denying a leave request.” Id. at 1086. “For
example, an employer that implements a burdensome approval process or discourages employees
from requesting FMLA leave could interfere with and restrain access without denying many
requests because few requests requiring a formal decision would ever be made.” Id. The court
further posited, “an employer that wanted to prevent FMLA use would have many options that
would stop short of denying a claim, such as not providing basic FMLA information to an
employee unaware of his rights, or orally discouraging FMLA use before the employee actually
requested leave.” Id. These concerns led the Seventh Circuit to conclude that the broad
coverage of § 2615(a)(1)’s language takes into account the fact that the FMLA protects
employees from all employer actions that chill employees’ ability to access their unpaid leave.
Id. That reasoning applies with equal force to Milman’s preparing or engaging in the initial steps
of the processes under the FMLA’s framework. Terminating her for doing so, even if she is not
ultimately entitled to leave, would raise the very same concerns that convinced the Seventh
Circuit that an employer’s formal denial was not necessary to establish a violation under
§ 2615(a)(1).
Lastly, the FMLA’s implementing regulations are consistent with this understanding.
Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an
employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”
29 C.F.R. § 825.220(a) (emphasis added). Inquiries relating to entitlement to leave, like
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 14
Milman’s, plainly fall within that definition. And, of course, the act of inquiring by its very
nature is at odds with the conclusion that Milman must be entitled to leave.
The regulation implementing the FMLA’s procedural framework similarly contemplates
that some employees may make requests that raise questions of entitlement. See 29 C.F.R.
§ 825.301(c). Indeed, that provision explicitly requires that in the event of a dispute over
whether leave qualifies under the FMLA, the employee and employer “should” discuss and
attempt to resolve the matter. Id. It would make no sense for the regulations to contemplate
such a discussion as part of the FMLA’s procedural framework, if employers may simply fire
any employee who turns out not to qualify.
Thus, the scope of protected activity under the FMLA starts with the first step
contemplated under the Act’s procedures: a request made to the employer. That request,
moreover, need not lead to entitlement in order to be protected. In this case, when her son began
exhibiting symptoms associated with COVID-19, Milman made a request to her employer for
unpaid leave—following the first step of the FMLA’s process. The Firm, through Human
Resources, then offered, and Milman accepted, a work-from-home arrangement for those two
days and never responded to her request. Milman’s action was grounded in a legitimate exercise
of the FMLA’s procedural framework and was therefore protected under the FMLA.
The Firm raises concerns noted by the Eleventh Circuit in Hurley v. Kent of Naples, Inc.,
746 F.3d 1161, 1167 (11th Cir. 2014), that FMLA protections could conceivably “apply to every
leave request.” But the facts in Hurley have no relation to this case. There, the plaintiff sent an
email request for a total of 11 weeks of vacation time over the course of two years. Id. at 1163.
Hurley himself acknowledged that he intended to use that time to do “things that would help him
get better” like “visiting the Grand Canyon.” Id. at 1164. Hurley’s request for unpaid FMLA
leave as a subterfuge for extensive vacation time was in no way tethered to his chronic condition
and thus could not potentially qualify under any subcategory of the FMLA.
By contrast, taking the circumstances alleged in the Complaint as true and construing
them in the light most favorable to Milman, the Complaint’s allegations make clear that when
faced with a pandemic involving a novel respiratory illness (COVID-19), concurrent recognition
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 15
by federal and state executive orders, and a rising number of COVID-19 cases, Milman believed
that her symptomatic two-year old son—who had a history of hospitalization for respiratory
issues, including a serious case of RSV which required ongoing nebulizer use—may have
contracted the illness. Faced with these facts, Milman made a request for unpaid leave to care for
her son, a hallmark FMLA claim. See § 2612(a)(1)(C).
The district court ultimately concluded that the Complaint failed to make allegations that
would allow the court to conclude her son suffered from a “serious health condition” based on
the alleged symptoms. But, in March 2020, national actions indicated that COVID-19 could be a
serious health condition for which Milman might seek FMLA leave. Although they did not
apply to her at the time of her termination, the Emergency Family and Medical Leave Expansion
Act and the Emergency Paid Sick Leave Act went into effect just days after these events
transpired. The circumstances alleged show that COVID-19 was serious enough to merit the
federal government’s swift action, including enactment of emergency legislation to provide relief
and paid leave to impacted individuals. Nothing in the Complaint can be construed as an attempt
by Milman to abuse her FMLA leave or exploit her employer; rather, she alleges legitimate
FMLA concerns, the need to attend to her son’s health issues amid the early uncertainty of a
pandemic, as the basis for the leave she sought. Those legitimate concerns are tethered to a
statutory provision that would lead to entitlement. See § 2612(a)(1)(C). These concurrent events
and the specifics of Milman’s request for unpaid leave, as alleged in the Complaint, support the
conclusion that her request for FMLA leave fit plausibly within the statute’s framework. We
conclude that Milman’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. Milman’s Complaint thus sufficiently alleges facts to establish that she was engaged in
protected activity.
D. Requisite Notice
The Firm contends, in the alternative, that even if a request for FMLA leave—regardless
of entitlement—could be protected activity, Milman’s claim still fails because she did not
provide the requisite notice for FMLA leave. It is entirely unclear whether the Firm contends
that the notice deficiency deprives Milman of protection under the FMLA as a threshold matter
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 16
(going to the first element of a prima facie case for retaliation) or whether it argues that
Milman’s alleged failure to give the requisite notice causes her claim to fail under the second
element of a prima facie FMLA claim—that the Firm knew she was exercising her FMLA rights.
Either way, Milman plausibly alleged that she provided the requisite notice to suggest that she
sought FMLA leave.
“[A]n employee does not have to expressly assert his right to take leave as a right under
the FMLA” to trigger its protections. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th
Cir. 1999). But the employee must provide enough information for the employer to know that
the leave she has requested reasonably might fall under the FMLA. In addition, where leave is
needed to care for a family member, the employee must so indicate. See Nicholson v. Pulte
Homes Corp., 690 F.3d 819, 826 (7th Cir. 2012) (citing 29 C.F.R. §§ 825.302(c), 825.124(a)).
“In general, if an employer lacks sufficient information about an employee’s reason for
taking leave, it should inquire further to ascertain whether the employee’s leave was potentially
FMLA-qualifying.” Nawrocki, 174 F. App’x at 338 (citing Cavin v. Honda of Am. Mfg., 346
F.3d 713, 726 (6th Cir. 2003)); see also Nicholson, 690 F.3d at 826 (“If [an employee] provided
sufficient notice that she needed time off to care for her seriously ill parents, then [her employer]
had a duty to inquire further to confirm [her] FMLA entitlement.”). The implementing
regulation makes this clear: “In any circumstance where the employer does not have sufficient
information about the reason for an employee’s use of leave, the employer should inquire further
of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.”
29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her
FMLA leave, moreover, “the employer bears the obligation to collect any additional information
necessary to make the leave comply with the requirements of the FMLA.” Hammon, 165 F.3d at
450.
Based on the circumstances outlined in her Complaint, Milman plausibly attempted to
engage in the process contemplated under the Act when she requested unpaid leave due to her
son’s health and the growing pandemic. The Firm indicated that it was aware of Milman’s
request based on its response: it offered an alternative accommodation to work from home for
two days. The Firm had notice that Milman sought leave to care for her son who had recently
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 17
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 Firm to, at minimum,
engage in the communication required by the statute. The Firm neither sought to clarify
Milman’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. 29 U.S.C.
§ 2612(a). Instead, the Firm offered a work-from-home arrangement—which Milman
accepted—and then terminated her after the first day for failing to “come into work,” indicating
that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in
responding to Milman’s request. On these allegations, Milman provided proper notice to her
employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed
procedures. The Firm was on notice of her protected activity.
Based on the analysis in the preceding sections, we conclude that Milman’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. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
E. Remaining State Law Claims
The district court did not analyze Milman’s state law claims in the first instance and
declined to exercise supplemental jurisdiction. Considering our ruling that Milman’s complaint
states a plausible claim for relief under the FMLA, the district court may reconsider its decision
to decline to exercise supplemental jurisdiction over Milman’s state law claims, in its discretion,
on remand. See, e.g., Sw. Williamson Cnty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1038 (6th Cir.
1999).
III. CONCLUSION
We REVERSE and REMAND the case for further proceedings consistent with this
opinion.
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 18
_________________
CONCURRENCE
_________________
NALBANDIAN, Circuit Judge, concurring. Fieger & Fieger, P.C. terminated Polina
Milman after she made a leave request under the Family and Medical Leave Act (“FMLA”). Her
proposed leave, as it turns out, would not have qualified for FMLA protection. So the district
court rejected her claim. I agree with the majority opinion, however, that Milman’s request
could qualify for protection as an “attempt to exercise” FMLA leave. But I write separately
because I believe that claims like hers should arise solely under 29 U.S.C. § 2615(a)(1). I also
explain what I think the limits are on “attempt” claims based on the FMLA’s text and our
precedent—none of which goes against the majority opinion.
I emphasize that the posture of this case matters. Milman argues that she was fired for
attempting to exercise FMLA leave. It appears, however, that Milman may have taken some
leave—at least she admits that she was not at work on the day before she was fired. Under our
precedent, someone who takes a leave that turns out not to be authorized by the FMLA has no
FMLA claim. But here, Milman alleges that she was actually fired for requesting FMLA leave,
not for taking leave. I expect that these questions, along with whether Milman provided
adequate notice to Fieger & Fieger, will be resolved as the record is developed, but for now,
I agree that this claim should proceed.
I.
Although our precedent seems to allow at least some FMLA-retaliation claims to arise
under § 2615(a)(2), (a)(1) charts the proper course here.1 As the majority recognizes, this Court
has sometimes used (a)(2) for retaliation claims and limited (a)(1) to entitlement claims. See
Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018) (citing (a)(2) for an
1Section 2615(a) protects employees from interferences with their FMLA rights. Subsection (a)(1) protects
the exercise of those rights by stating “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.” § 2615(a)(1). The second
subsection, (a)(2), protects employees who oppose an unlawful FMLA practice from employer discrimination.
§ 2615(a)(2). That subsection makes it “unlawful for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by this subchapter.” Id.
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FMLA-retaliation claim involving an employee who “went on leave”); Hunter v. Valley View
Loc. Sch., 579 F.3d 688, 690 (6th Cir. 2009) (citing (a)(2) when asserting that “[a]n employer
may not discriminate or retaliate against an employee for taking FMLA leave”). For example, in
Bryant v. Dollar Gen. Corp., we explained that the FMLA and its legislative history “strongly
support interpreting § 2615(a)(2) as prohibiting retaliation against employees who use FMLA
leave.” 538 F.3d 394, 401 (6th Cir. 2008).
Yet, at other times, we have used (a)(1) as a basis for FMLA-retaliation claims. See
Wysong v. Dow Chem. Co., 503 F.3d 441, 446–47 (6th Cir. 2007) (reasoning that (a)(1)’s
“prohibition [against interfering, restraining, or denying the exercise of or attempted exercise of
any FMLA right] includes retaliatory discharge for taking leave”); Smith v. City of Niles, 505 F.
App’x 482, 486 (6th Cir. 2012) (quoting 29 C.F.R. § 825.220(c)). And at least one of our cases
has stated that “a claim for retaliatory discharge is cognizable under either” (a)(1) or (a)(2).
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012).
It would behoove courts to stop using both subsections interchangeably in favor of
textual precision. Importantly, when as here, an employee brings a retaliation claim and does not
oppose an “unlawful FMLA practice,” protection for the FMLA-leave request stems solely from
§ 2615(a)(1), not (a)(2). We should recognize that each subsection protects a different right.
And although one could imagine a situation in which an employee could bring both claims
against an employer, this case is not one of them.
An (a)(1) claim protects employees when they “exercise” or “attempt to exercise” their
rights under the FMLA. § 2615(a)(1) (emphasis added). Section 2615(a)(1) protects “any right
provided under” the FMLA. Such rights can include an entitlement to leave when an employee
must take care of a new-born baby, § 2612(a)(1)(a), cannot work because of a serious health
condition, § 2612(a)(1)(d), or as relevant here, takes care of a son with a serious health condition,
§ 2612(a)(1)(c).
On the employer side, (a)(1) prevents employer actions that “interfere with, restrain, or
deny” the exercise or attempt to exercise FMLA rights. § 2615(a)(1). That includes termination.
See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017)
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 20
(“[A]dverse employment action in the face of a lawful exercise of FMLA rights fits comfortably
within § 2615(a)(1)’s ‘interfere with, restrain, or deny’ language.”). Thus, by its terms, (a)(1)
covers retaliation against an attempt for FMLA leave. And as such, Milman’s request for leave
falls under (a)(1)’s scope.
But (a)(2) is irrelevant here. That subsection protects individuals who “oppos[e] any
practice made unlawful” by the FMLA. § 2615(a)(2). This opposition can include, for example,
an employee’s protest against unlawful FMLA conduct, such as an employer’s refusal to grant
leave or the like. See Hoffman v. Pro. Med Team, 394 F.3d 414, 415, 421 (6th Cir. 2005). But
(a)(2)’s scope does not extend to employees who exercise or attempt to exercise an FMLA right.
And courts should not read (a)(1)’s language as part of (a)(2). Courts cannot add protections to
what (a)(2)’s text states or reasonably implies. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 93 (2012) (discussing the casus omissus canon of
interpretation). Retaliation against an “exercise” or “attempt to exercise” FMLA rights instead
falls in (a)(1)’s purview. § 2615(a)(1). And (a)(1)’s reference to these employee safeguards
only relates to that subpart. See Scalia & Garner, supra at 156–60 (discussing the “scope-of-
subparts” canon).
Milman’s claim arises under (a)(1) only. Indeed, at oral argument, both parties
acknowledged that “this is an (a)(1) case” because Milman did not oppose any practice.
(Recording of Oral Argument at 33:12–33:55, 38:30–39:13.) Because courts should use (a)(1) in
FMLA-retaliation claims like this one, I believe that the district court should not have designated
(a)(2) as the statutory basis for Milman’s claim.
II.
Second, I write to build upon the majority’s discussion of “attempt” under the FMLA.
(Maj. Opinion, pp. 9–17.) My fear is that recognizing unmoored, unsuccessful “attempt” claims
could lead to uncertainty and possible abuses. To clarify, the majority opinion does not embrace
such unbounded claims. I simply write here separately to outline the restrictions that I see on
those claims consistent with the majority’s opinion. Thus, I agree that the FMLA can protect
unsuccessful attempts at FMLA leave as here. As the majority states, employee action that is
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 21
“grounded in a legitimate exercise of the FMLA’s procedural framework [is] protected under the
FMLA.” (Id. at 14 (emphasis added).) This procedural framework cabins “attempt” by its start
and end: The FMLA’s text and our precedent require employees to provide sufficient notice of
an FMLA right and limit how long an “attempt” may extend.
A. An Attempt’s Starting Point
Two parts of the FMLA’s text inform when an “attempt” at FMLA leave begins. First,
and perhaps obviously, (a)(1) protects only those who “attempt to exercise” their FMLA rights.
§ 2615(a)(1). The subsection states that the “attempt” must seek to accomplish “any right
provided under this subchapter.” Id. By negative implication, “any right” excludes all attempts
that unambiguously seek to obtain non-protected activities. See Eaton Corp. & Subsidiaries v.
Comm’r, 47 F.4th 434, 444 (6th Cir. 2022) (“After all, under the expressio unius canon, ‘[t]he
expression of one thing implies the exclusion of others.’” (quoting Scalia & Garner, supra at
107)). Thus, a request for vacation time would not qualify as an attempt at FMLA-protected
leave. See Hurley v. Kent of Naples, Inc., 726 F.3d 1161, 1164–67 (11th Cir. 2014). But
practically no one would overtly seek vacation time as FMLA leave. Instead, that person would
try to couch an otherwise illegitimate request in FMLA terms.
So we come to the important second consideration for a legitimate “attempt”—sufficient
notice under § 2612(e). A protected FMLA request must provide sufficient “notice” of FMLA
leave to an employer. See § 2612(e)(1) (requiring employees to provide employers “30 days’
notice” to take FMLA-qualifying “leave” or notice as soon as “practicable” if the employee must
take leave before 30 days). And we only recognize notice as sufficient when an employee
provides “enough information for the employer to reasonably conclude that an event described in
[the] FMLA has occurred.” Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999).
So a request for leave with insufficient information about the basis for the FMLA request is not
an FMLA attempt.
Simply stated, an employee’s initial request must provide sufficient notice of an FMLA
right for an employer’s obligations to arise. See § 2612(e) (containing notice requirements for
foreseeable leave); § 2613 (providing employers ways to certify that the leave qualifies under the
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 22
FMLA). For example, an employer would have sufficient notice if an employee requested leave
to take care of a new-born son. See § 2612(a)(1)(A). That employee’s leave request would fall
within the scope of FMLA protection. And the employer would then “bear[] the obligation to
collect any additional information necessary to make the leave comply with the requirements of
the FMLA.” Hammon, 165 F.3d at 450.
Pair the FMLA’s sufficient notice trigger with (a)(1), which provides that employers
cannot “interfere with, restrain, or deny” employees’ attempts to obtain FMLA rights.
§ 2615(a)(1). Employers can only “interfere with” attempts at FMLA leave after their
obligations arise. It then follows that when an employer has sufficient notice of an employee’s
potential-FMLA right, an employer’s obligations kick in, and that employer cannot “interfere
with” an employee’s attempt to obtain FMLA leave. But that can change when the attempt ends.
In this case, there is a serious question about whether Milman provided sufficient notice
of her desire to take FMLA leave to Fieger & Fieger. 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. Hammon, 165 F.3d at 450.
B. An Attempt’s End
The next issue is defining the boundaries of an attempt to take FMLA leave. Under our
precedent, an “attempt” ends when an employee takes leave—regardless of whether it turns out
that the FMLA protects that leave.
We require employees with retaliation claims to prove that the FMLA protects any actual
leave taken. Branham v. Gannet Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir. 2010)
(requiring an employee who took leave to “prove that she was entitled to FMLA leave” for her to
“prevail on . . . her retaliation claim”). So if an employee takes leave because of sickness and
“cannot demonstrate that his challenged leave was caused by a ‘serious health condition,’” the
FMLA does not protect that leave. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111
(6th Cir. 1997). Or if an employee takes leave to take care of her sick son, that employee “has a
cause of action under [the] FMLA only if” her son “had a serious health condition that required”
the employee’s care. Perry v. Jaguar of Troy, 353 F.3d 510, 514 (6th Cir. 2003). In either case,
No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 23
the attempt must end when the employee takes leave because she can only succeed on a FMLA-
retaliation claim by proving entitlement to that leave.
So to avoid Branham’s framework, Milman must show that her employer punished her
for her request per se, not for any “leave” that she might have taken. Milman tries to thread the
needle here by alleging that she was fired after she requested leave that she thought would be
FMLA protected, (R. 1, First Amended Complaint, PageID 100 ¶¶ 83–88), and after she received
permission to work from home, (id. at PageID 96–97 ¶¶ 59–64.) Thus, she claims that any time
she spent at home was work time and not leave. (Appellant Br. at 8, 11.) Again, at this stage of
the case, I would allow her claim to move forward.
III.
For these reasons, I agree with the opinion that we should reverse and remand the case
for further proceedings.