58 F.4th 860
6th Cir.2023Background
- Milman worked as an attorney at Fieger & Fieger, P.C. (hired May 2018). In March 2020 her two-year-old son developed cough/runny nose/GI symptoms and had a history of severe RSV.
- Amid COVID-19 closures and emergency declarations, Milman asked to work remotely and later requested unpaid leave (or offered to take it) to care for her symptomatic son; HR initially approved PTO and then offered a work-from-home accommodation.
- After working remotely one pre-assigned day and accepting HR’s offer to work from home, Milman received a termination letter (March 19, 2020) asserting she failed to come into work and had effectively quit.
- Milman sued under the FMLA (retaliation/interference) and asserted state law claims; the district court dismissed the FMLA claim for failure to allege entitlement to leave and declined supplemental jurisdiction over state claims.
- The Sixth Circuit reversed and remanded, holding that an employee’s request for FMLA leave (the initial step of the statutory process) can be protected activity even if the employee is ultimately not entitled to the leave, provided adequate notice and employer knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an employee’s request for FMLA leave (without actually taking leave) is protected activity under § 2615 | Milman: the statute’s procedural scheme protects the initial request/attempt to exercise FMLA rights; firing for making that request is actionable | Firm: Sixth Circuit precedent requires showing entitlement to FMLA leave for a retaliation claim | Court: Request/attempt to exercise FMLA leave is protected under § 2615(a)(1); entitlement is not prerequisite to protection for mere requests |
| Whether entitlement to FMLA leave is a threshold requirement for a retaliation/interference claim | Milman: entitlement is not required to protect the initial request/attempt; protecting only entitled leave would chill requests | Firm: precedent (e.g., Branham) requires entitlement where leave was taken; thus no claim here | Court: Distinguishes Branham (involved leave actually taken); entitlement requirement applies to taken leave, not to initial requests; dismissal on entitlement grounds was error |
| Whether Milman gave sufficient notice and the Firm had knowledge of protected activity | Milman: she provided enough information (son’s symptoms, RSV history, offered unpaid leave) and received HR responses, so employer knew and should have inquired | Firm: alternatively, argues Milman failed to give requisite notice or employer lacked knowledge | Held: Allegations plausibly show adequate notice and employer awareness (HR offered work-from-home and did not seek certification); factual development required |
| Whether district court properly declined supplemental jurisdiction over state claims after dismissal | Milman: district court dismissed FMLA claim and then declined supplemental jurisdiction prematurely | Firm: court discretion to decline jurisdiction once federal claim dismissed | Held: Reversal of dismissal means district court may reconsider whether to exercise supplemental jurisdiction on remand |
Key Cases Cited
- Branham v. Gannet Satellite Info. Network, Inc., 619 F.3d 563 (6th Cir. 2010) (entitlement analysis where employee actually took leave)
- Bryant v. Dollar Gen. Corp., 538 F.3d 394 (6th Cir. 2008) (discussing § 2615(a)(2) as a basis for retaliation claims)
- Wierman v. Casey's General Stores, 638 F.3d 984 (8th Cir. 2011) (employee notice of need can be protected even if entitlement later contested)
- Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788 (1st Cir. 2011) (requesting leave is protected even where the leave ultimately may be unprotected)
- Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022) (employer need not formally deny leave for interference; chilling or burdensome practices can violate § 2615(a)(1))
- Hammon v. DHL Airways, Inc., 165 F.3d 441 (6th Cir. 1999) (employee need not expressly invoke the FMLA; must provide enough information for employer to know leave might be FMLA-qualifying)
- Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158 (2d Cir. 2017) (adverse action for exercising FMLA rights fits within § 2615(a)(1))
- Render v. FCA US, LLC, 53 F.4th 905 (6th Cir. 2022) (request for FMLA leave is protected activity even if entitlement ultimately lacking)