Polina Milman v. Fieger & Fieger, P.C.
58 F.4th 860 (2023)
Rule of Law:
An employee's inquiry about or request for Family and Medical Leave Act (FMLA) leave constitutes protected activity under 29 U.S.C. § 2615(a)(1), even if the employee is not ultimately entitled to the requested leave, provided the request gives sufficient notice of a potentially FMLA-qualifying reason.
Facts:
- In May 2018, Polina Milman was hired as an attorney at Fieger & Fieger, P.C.
- On March 13, 2020, President Trump declared a national state of emergency due to COVID-19, leading to immediate closures of schools and daycare facilities.
- Milman expressed concerns to James Harrington, a partner, and then to Geoffrey Fieger, the owner, about COVID-19 exposure and her son's heightened vulnerability due to a history of Respiratory Syncytial Virus (RSV) requiring nebulizer use, requesting to work from home.
- Fieger denied Milman's request for remote work on March 16 and 17, so Milman contacted human resources to use her paid time off (PTO) for those days, which was approved.
- Milman's two-year-old son developed symptoms resembling COVID-19, including a cough, runny nose, and gastrointestinal issues, which persisted and worsened.
- On March 19, Milman contacted Human Resources, stating her son's symptoms were not improving and expressing major concerns about working in the office, offering to take unpaid leave if necessary.
- Human Resources offered Milman the option to work from home for the remainder of the week, which she accepted, and she worked from home that day.
- Fieger & Fieger, P.C. terminated Milman's employment on March 19, stating she failed to come to work and indicated her child had a 'minor cold,' and later sent a second letter stating she 'had quit.'
Procedural Posture:
- Polina Milman sued Fieger & Fieger, P.C. and Geoffrey Fieger (the Firm) in the United States District Court for the Eastern District of Michigan, asserting a federal claim for FMLA violation and state law claims for wrongful discharge.
- Milman later filed an amended complaint, adding state law claims of defamation and false light.
- The Firm moved to dismiss Milman’s Complaint under Federal Rule of Civil Procedure 12(b)(6).
- The district court granted the Firm's motion, concluding Milman failed to state an FMLA claim because she did not allege facts showing entitlement to FMLA leave, and consequently declined to exercise supplemental jurisdiction over the remaining state law claims.
- Milman timely appealed the district court's dismissal to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Does an employee's request for FMLA leave, providing sufficient notice of a potentially FMLA-qualifying reason, constitute protected activity against retaliation under the FMLA, regardless of whether the employee is ultimately entitled to the leave?
Opinions:
Majority - Stranch
Yes, an employee's request for FMLA leave, even if she is not ultimately entitled to that leave, constitutes protected activity under the FMLA, specifically under 29 U.S.C. § 2615(a)(1), which prohibits interference with the 'exercise of or the attempt to exercise' any FMLA right. The FMLA's statutory purpose and procedural framework dictate that the initial step of an employee's request for leave must be protected to prevent employers from chilling employees' willingness to exercise their statutory rights. Distinguishing from cases where an employee actually took leave without entitlement, the court found that an "ask at your peril" approach would undermine the FMLA. Other circuit courts and FMLA implementing regulations support this interpretation, recognizing that inquiries and discussions about FMLA qualification are part of the protected process. Milman's request was grounded in a legitimate FMLA concern (caring for a child with a serious health condition) given her son's symptoms and history amid the early COVID-19 pandemic. Furthermore, Milman provided sufficient notice of a potentially FMLA-qualifying reason, which triggered the Firm's obligation to inquire further, an obligation it failed to meet by terminating her instead.
Concurring - Nalbandian
Yes, Milman’s request could qualify for protection as an 'attempt to exercise' FMLA leave, and her claim should proceed. However, claims for retaliation based on exercising FMLA rights should arise solely under 29 U.S.C. § 2615(a)(1) (interference with FMLA rights), not § 2615(a)(2) (discrimination for opposing unlawful FMLA practices), as each subsection protects distinct rights. Section 2615(a)(1) expressly covers the 'exercise of or the attempt to exercise' FMLA rights, including termination for such attempts. The scope of a protected 'attempt' begins when an employee provides sufficient notice of a potentially FMLA-qualifying reason for leave, giving the employer enough information to reasonably conclude an FMLA event might have occurred. An 'attempt' ends when an employee actually takes leave; at that point, the employee must prove entitlement to the leave for it to be protected. Milman's claim is valid at this stage because she alleges she was fired for the request itself and claims she worked from home, not that she took unauthorized leave.
Analysis:
This decision significantly broadens the definition of 'protected activity' under the FMLA's anti-retaliation provisions, ensuring that employees are protected from adverse actions simply for inquiring about or requesting FMLA leave. It reinforces the FMLA's intent to promote family stability by removing the 'ask at your peril' deterrent and places a greater onus on employers to engage in an interactive process to determine FMLA eligibility. This precedent may lead to an increase in FMLA retaliation claims based on pre-leave requests, requiring employers to implement more robust protocols for handling such inquiries and to exercise caution and due diligence before making adverse employment decisions following an employee's FMLA-related communication.
