Milman v. Fieger & Fieger, P.C. et al
OPINION and ORDER Granting in Part and Denying in Part 23 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:20-cv-12154
HONORABLE STEPHEN J. MURPHY, III
FIEGER & FIEGER, P.C. and
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS 
Plaintiff Polina Milman sued Defendant Geoffrey Fieger and his law firm for
violating the Family Medical Leave Act ("FMLA") and wrongful discharge in violation
of Michigan public policy. ECF 1, PgID 13–16. Within twenty-one days of serving the
complaint, Plaintiff amended it to include defamation and false light claims against
Fieger. ECF 14, PgID 104–06.
A month later, Defendants moved to dismiss the first amended complaint. ECF
23. In the motion, Defendants requested that the Court sanction Plaintiff because the
first amended complaint was "brought solely to embarrass and harass Defendants."
ECF 23, PgID 167; see also ECF 32, PgID 328, n.1. The Court held a hearing to
address whether the Court should dismiss the FMLA claim. ECF 35, PgID 354. And
the Court took the motion under advisement. For the reasons below, the Court will
grant in part and deny in part the motion to dismiss and will deny the sanctions
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Plaintiff worked as an attorney at Fieger's law firm for two years. ECF 14,
PgID 90. During those years, Plaintiff raised two children. Id.
In March 2020, the COVID-19 virus began to spread throughout the United
States. Around that time, the law firm scheduled employees—including Plaintiff—to
work from home on certain days as a test of the firm's ability to work remotely. Id. at
91. On Friday, March 13, President Donald J. Trump declared the COVID-19
pandemic a national emergency. Id. Later that day, the daycare center for Plaintiff's
children announced it would close the next week due to COVID-19 concerns. Id.
Because of the closure, Plaintiff emailed a partner at the firm with a request
to work from home on Monday and Tuesday, March 16 and 17. Id. at 92. The partner
informed Plaintiff that he could not approve her to work from home, but she should
contact Fieger directly. Id. at 93. The partner also advised Plaintiff to use her
personal time off if Fieger denied the request. Id.
On Monday morning, Plaintiff called Fieger, who denied the work from home
request. Id. Still, Plaintiff received approval to take paid time off through Tuesday.
On Tuesday, March 17, Plaintiff's son started to exhibit an occasional cough,
runny nose, and gastrointestinal issues. Id. at 94. Plaintiff informed her direct
Because the Court must view all facts in the light most favorable to the nonmoving
party, see Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008),
the Court's recitation does not constitute a finding or proof of any fact.
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supervisor about her plans to return to the office on Thursday and about her lack of
childcare. Id. Plaintiff was preassigned to work from home on Wednesday. Id.
During the day on Wednesday, the son's cough and runny nose persisted and
his gastrointestinal issues worsened. Id. at 96. Yet, later in the day, Plaintiff told the
firm's human resources head about her plans to return to the office the next day. Id.
Also on Wednesday, President Trump signed the Families First Coronavirus
Response Act ("FFCRA"), Pub. L. No. 116-127, 134 Stat. 178 (2020) into law. Id. at
On Thursday morning, Plaintiff emailed the human resources head about her
son's symptoms and her "major concerns" about returning to the office given her son's
health. Id. at 96; see, e.g., ECF 23-4, PgID 181; ECF 27-2, PgID 302. Plaintiff then
offered to take unpaid leave to avoid going into the office. Id. The human resources
head responded that Plaintiff could work from home for the rest of the week. ECF 14,
PgID 97. But, hours later, at the close of business on Thursday, the human resources
head emailed Plaintiff a termination letter signed by Fieger. Id.
The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to
allege facts "sufficient 'to raise a right to relief above the speculative level,' and to
'state a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc.,
579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). The Court views the complaint in the light most favorable to the
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plaintiff, presumes the truth of all well-pleaded factual assertions, and draws every
reasonable inference in the nonmoving party's favor. Bassett, 528 F.3d at 430.
But the Court will not presume the truth of legal conclusions in the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If "a cause of action fails as a matter of
law, regardless of whether the plaintiff's factual allegations are true or not," then the
Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
To resolve a Rule 12(b)(6) motion, the Court may rely on "exhibits attached [to the
complaint] . . . and exhibits attached to [D]efendant's motion to dismiss so long as
they are referred to in the [c]omplaint and are central to [the] claims." Bassett, 528
F.3d at 430.
The Court will first address the FMLA claim and then the state law claims.
After, the Court will address Defendants' request for sanctions.
The FMLA entitles an eligible employee to medical leave to care for a child who
has a "serious health condition." 29 U.S.C. § 2612(a)(1)(C). The law bans an employer
from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of or attempt to
exercise, any [FMLA] right." § 2615(a)(1). It also bans an employer from
"discharg[ing] or in any other manner discriminat[ing] against an individual for
opposing any practice" that the FMLA outlaws. § 2615(a)(2).
In the Sixth Circuit, plaintiffs have two "theories for recovery under the FMLA:
(1) the 'entitlement' or 'interference' theory arising from 29 U.S.C. § 2615(a)(1); and
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(2) the 'retaliation' or 'discrimination' theory arising from 29 U.S.C. § 2615(a)(2)."
Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555 (6th Cir. 2006) (internal
quotation omitted). The retaliation theory focuses on "whether the employer took the
adverse action because of a prohibited reason or for a legitimate nondiscriminatory
reason." Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012)
(internal quotations and quotation omitted).
Plaintiff explained that "[t]he gravamen of [her first claim] is in FMLA
retaliation, alleging that she was terminated in retaliation for requesting or inquiring
about FMLA leave." ECF 27, PgID 272 n.2. On that basis, Plaintiff asserted only a
retaliation claim under § 2615(a)(2). See Huffman v. Speedway LLC, 621 F. App'x
792, 797 (6th Cir. 2015) ("[I]f the 'essence' of a plaintiff's FMLA claim falls under only
one of the two theories, the district court does not err in confining its analysis to only
that theory.") (quoting Seeger, 681 F.3d at 283).2
To establish a prima facie FMLA retaliation claim, Plaintiff must plausibly
plead four elements. Seeger, 681 F.3d at 283 (citation omitted). First, "[s]he was
engaged in a statutorily protected activity." Id. (citation omitted). Second, Defendants
"knew that [s]he was exercising h[er] FMLA rights." Id. (citation omitted). Third,
"[s]he suffered an adverse employment action." Id. (citation omitted). And fourth, "a
causal connection  between the protected FMLA activity and the adverse
employment action." Id. (citation omitted).
At the motion hearing, Plaintiff's counsel confirmed the FMLA claim arises only
under a retaliation theory.
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The Court's analysis begins and ends with the first element. To satisfy the first
element, Plaintiff must show she was entitled to FMLA leave. Nawrocki v. United
Methodist Ret. Cmty's, Inc., 174 F. App'x 334, 339 (6th Cir. 2006). In other words, if
Plaintiff cannot plead that she sought leave "on account of [her son's] serious health
condition," then she cannot establish "that [s]he engaged in an activity protected by
the FMLA." Morris v. Family Dollar Stores of Ohio, Inc., 320 F. App'x 330, 338 (6th
Cir. 2009). Indeed, the Sixth Circuit has noted "a threshold requirement under the
FMLA" is whether a plaintiff has requested FMLA leave due to a "serious health
condition." Palmer v. Cacioppo, 429 F. App'x 491, 496 (6th Cir. 2011).
But Plaintiff failed to argue whether she was entitled to FMLA leave. See ECF
27, PgID 273–79. Instead, Plaintiff claimed she could assert an FMLA retaliation
claim without being "entitled to take leave." Id. at 273 (emphasis omitted). Based on
Plaintiff's reading of the case law, she need only qualify as "an 'eligible employee'
under the FMLA" to satisfy the first element of a retaliation claim. Id. at 275 (citation
Yet Plaintiff's reasoning contradicts binding Sixth Circuit precedent. Put
simply, "[t]o prevail on either her interference claim or her retaliation claim, [a
plaintiff] must prove that she was entitled to FMLA leave." Branham v. Gannet
Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir. 2010). To repeat, Plaintiff
"cannot prevail on her  retaliation claim unless she sought leave for an FMLAqualifying reason, namely, that [her son] had a 'serious health condition.'" Id. at 569.
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To this point in the litigation, neither party has addressed Branham's binding
precedent. See ECF 27, PgID 273–79.3 Rather, Plaintiff relied on Skrjanc v. Great
Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) and Edgar v. JAC Prod.,
Inc., 443 F.3d 501 (6th Cir. 2006). ECF 27, PgID 272–74.
Plaintiff claimed that Skrjanc allows a plaintiff to assert an FMLA retaliation
claim if "she is discharged in retaliation for intending to take FMLA." ECF 27, PgID
274 (emphasis in original). But Skrjanc's plain text fails to support that reading. The
plaintiff in Skrjanc had a foot injury that qualified as a "serious health condition" and
so "[t]he district court properly concluded that Skrjanc presented a prima facie case
of retaliatory discharge." 272 F.3d at 314. The plaintiff therefore had a serious injury
that created a right to FMLA leave.
Plaintiff also argued Edgar supported her reading of the case law. ECF 27
PgID 272–73. Edgar, like the Sixth Circuit opinions cited above (Branham, Skrjanc,
Nawrocki, Morris, and Palmer), reviewed FMLA claims at the summary judgment
stage. And Edgar merely listed the elements of a prima facie FMLA retaliation claim
that were cited in Skrjanc. Edgar, 443 F.3d at 508 (citing Skrjanc, 272 F.3d at 314).
Beyond that, the analysis from the Sixth Circuit in Edgar focused only on whether
"an employer can lawfully fire an employee who is unable to return to work at the
end of the FMLA leave period" or whether the plaintiff's serious health condition
"prevented her from returning to work was 'exacerbated' by the firing." Id. at 509. At
At the motion hearing, the Court brought Branham to counsel's attention. Neither
counsel, however, addressed Branham at the hearing.
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most, the Sixth Circuit's holding in Edgar stands for no more than its holding in
Skrjanc: a plaintiff with a "serious health condition" presented a prima facie FMLA
retaliation case. Skrjanc, 272 F.3d at 314.
At the motion hearing, Plaintiff's counsel suggested Edgar holds that the
employer's motive is the crux of an FMLA retaliation claim. See 443 F.3d at 508
("Under the retaliation theory . . ., the employer's motive is an integral part of the
analysis.") (emphasis omitted). And the suggestion is true, but "[t]he employer's
motive is relevant because retaliation claims impose liability on employers that act
against employees specifically because those employees invoked their FMLA rights."
Id. (emphasis in original). In other words, the employer's motive is relevant under
the fourth prong of an FMLA retaliation claim: that "a causal connection existed
between the protected FMLA activity and the adverse employment action." Seeger,
681 F.3d at 283; see Morris, 320 F. App'x at 338 ("The significant difference between
an interference and a retaliation claim is the causal connection element, which
encompasses an employer's intent."). All told, Sixth Circuit precedent does not
harmonize Plaintiff's argument with the fact that she "cannot prevail on her 
retaliation claim unless she sought leave for an FMLA-qualifying reason."
Branham, 619 F.3d at 569.
What is more, even apart from Branham, several recent, unpublished Sixth
Circuit cases also undercut Plaintiff's reasoning. E.g., Katoula v. Detroit Entm't, LLC,
557 F. App'x 496, 499 (6th Cir. 2014) (explaining that, at the motion to dismiss stage,
a plaintiff not entitled to FMLA leave could not plausibly state an FMLA retaliation
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claim against her employer); Palmer, 429 F. App'x at 496; Morris, 320 F. App'x at
338; Nawrocki, 174 F. App'x at 339. At bottom, the Sixth Circuit requires plaintiffs
who assert FMLA retaliation claims to plead and prove they would have been entitled
to FMLA leave. And the Court cannot ignore Branham's plain text: "[t]o prevail
on . . . her retaliation claim, [a plaintiff] must prove that she was entitled to FMLA
leave." 619 F.3d at 568 (citing Edgar, 443 F.3d at 508).
Because FMLA entitlement is an element to an FMLA retaliation claim,
Plaintiff "cannot prevail on her  retaliation claim unless she sought leave for an
FMLA-qualifying reason, namely, that [her son] had a 'serious health condition.'" Id.
at 569; see also Morris, 320 F. App'x at 338 ("Because [Plaintiff's] leave was not on
account of a serious health condition, [s]he cannot establish the first element, that
[s]he engaged in an activity protected by the FMLA"). Plaintiff's complaint must
therefore plausibly state an entitlement to FMLA leave.
And to be entitled to FMLA leave, Plaintiff must show that her son had a
"serious health condition." 29 U.S.C. § 2612(a)(1)(C). The FMLA defines a "serious
health condition" as "an illness . . . that involves" "inpatient care in a hospital" or
"continuing treatment by a health care provider." Id. § 2611(11). Federal regulations
exclude conditions like "the common cold, the flu, ear aches, [and] upset stomach"
from qualifying as a "serious health condition." 29 C.F.R. § 825.113(d). Federal
regulations also define what constitutes "continuing treatment by a health care
provider." Id. § 825.115.
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Here, Plaintiff alleged her son suffered from a cough, runny nose, and
gastrointestinal issues. ECF 14, PgID 94, 96. Plaintiff did not allege her son went to
the hospital. See id. She did not allege her son received treatment for his cold- and
flu-like symptoms. See id. Granted, Plaintiff's son had contracted a respiratory
infection that required a five-day stay in the hospital and use of a nebulizer. Id. at
92. But all the treatment for the infection occurred well before the events here and
ongoing treatment for the past infection was not given as a reason why Plaintiff asked
to take unpaid leave. Id. Even though the respiratory infection may have been a
"serious health condition" in the past, no allegations hint that the infection was
ongoing or still a serious health condition when Plaintiff sought leave from
Defendants in March 2020. See Tillman v. Ohio Bell Tel. Co., 545 F. App'x 340, 354
(6th Cir. 2013) (Plaintiff must show that she "qualif[ied] for FMLA leave on or about
the dates in question."). Rather, "Plaintiff worried that her son's previous bout with
[the infection] left him particularly vulnerable to contracting COVID-19." Id. To be
sure, Plaintiff never alleged her son's cough, runny nose, and gastrointestinal issues
in March 2020 required "inpatient care in a hospital" or specific "continuing
treatment by a health care provider." § 2611(11); see ECF 14, PgID 92, 94, 96. Without
those crucial factors, the Court, even absent medical expertise, must find that
Plaintiff's son did not plausibly suffer from a "serious health condition" as defined by
the FMLA in March 2020.4 § 2611(11); see Lackey v. Jackson Cnty., 104 F. App'x 483,
Tellingly, Plaintiff's response brief failed to address whether her son suffered from
a "serious health condition" as defined by the FMLA. § 2611(11); see ECF 27, PgID
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490 (6th Cir. 2004) ("Not all medical problems are subject to the FMLA. It is Plaintiff's
burden to establish that [her son's] medical problems are severe enough to warrant
the FMLA protection."). After viewing the complaint in the light most favorable to
Plaintiff, the complaint contains no allegations that would allow the Court to infer
Plaintiff's son plausibly suffered from a "serious health condition" in March 2020.
Likewise, Plaintiff cannot plausibly establish a claim under the FFCRA.
President Trump signed the FFCRA into law before Plaintiff's firing. ECF 14, PgID
95. The FFCRA created two acts: the Emergency Paid Sick Leave Act ("EPSLA") and
the Emergency Family and Medical Leave Expansion Act ("EFMLEA").
EPSLA "requires covered employers to provide paid sick leave to employees"
who must care "for a child . . . whose childcare provider is unavailable because of
COVID-19." New York v. United States Dep't of Labor, 477 F. Supp. 3d 1, 5 (S.D.N.Y.
2020) (citing FFCRA § 5102(a)). And the EFMLEA amended the FMLA so that
"employees who are unable to work because they must care for a dependent child due
to COVID-19" may receive "paid leave." Id.
The provisions, however, did not go into effect until after Plaintiff's firing. Paid
Leave Under the FFCRA, 85 Fed. Reg. 19326-01, at 19327 (Apr. 6, 2020) (to be codified
at 29 C.F.R. pt. 826) ("These new paid sick leave and expanded family and medical
leave requirements became operational on April 1, 2020, effective on April 2, 2020.").
And the FFCRA is not retroactive. Id. at 19341; see Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988) ("Retroactivity is not favored in the law. Thus, congressional
enactments and administrative rules will not be construed to have retroactive effect
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unless their language requires this result."). As a result, the FFCRA provides no relief
for Plaintiff under the FMLA. Put differently, Congress and the President enacted a
law to protect working parents from COVID-19's consequences, but the law's
protections came into effect too late for Plaintiff to avail herself of them.
In sum, Plaintiff failed to plausibly plead entitlement to FMLA leave and thus
failed to plead an FMLA retaliation claim. The Court will grant the motion to dismiss
the FMLA claim.
State Law Claims
The Court has exercised supplemental jurisdiction over the three state law
claims. ECF 14, PgID 89, 102–06. A district court "may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction[.]" 28 U.S.C. § 1367(c). Generally,
district courts should decline to exercise supplemental jurisdiction over state law
claims when all federal law claims have been dismissed from the case before trial.
See Brown v. Cassens Transp. Co., 546 F.3d 347, 363 (6th Cir. 2008) ("[A] federal court
should typically decline to exercise pendent jurisdiction over a plaintiff's state-law
claims after dismissing the plaintiff's federal claims.").
The Court will therefore decline to exercise supplemental jurisdiction over the
remaining state law claims. For one, the Court lacks original jurisdiction over the
claims. And two, the interests of judicial economy do not override the presumption
against retaining the case because the parties have not even begun discovery. ECF
33; see Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002). For those two
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reasons, the Court will dismiss the state law claims without prejudice. Because the
Court is declining to resolve the state law claims on the merits, the Court will deny
the motion to dismiss the state law claims.
Defendants' Request for Sanctions
Last, under Federal Rule of Civil Procedure 11(b)(1), when an attorney signs a
pleading, the attorney is certifying to the Court the pleading is "not being presented
for any improper purpose, such as to harass." When the Court determines a party has
violated Rule 11(b), it "may impose an appropriate sanction" on the party. Fed. R.
Civ. P. 11(c)(1) (emphasis added). But when a party moves for Rule 11 sanctions, the
rule itself sets out three steps the moving party must follow.
First, "[a] motion for sanctions must be made separately from any other
motion." Fed. R. Civ. P. 11(c)(2). Second, that motion "must describe the specific
conduct that allegedly violates Rule 11(b)." Id. And third, the party must follow the
so-called safe-harbor requirement. Id. The safe-harbor provision requires a party to
formally serve the sanctions motion on the opposing party and then wait twenty-one
days to file the motion with the Court. Id. "Failure to comply with the safe-harbor
provision precludes imposing sanctions on the party's motion." Penn, LLC v. Prosper
Bus. Dev. Corp., 773 F.3d 764, 767 (6th Cir. 2014) (citations omitted).
Defendants did not follow Rule 11(c)'s steps. Defendants filed no detached
request for sanctions. ECF 23; ECF 32, PgID 328, n.1. And Defendants offered no
evidence they adhered to the safe-harbor provision. Id.; see also Fed. R. Civ. P.
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11(c)(2). Because Defendants failed to follow the proper procedures, the Court will
deny the sanctions request.
WHEREFORE, it is hereby ORDERED that Defendants' motion to dismiss
 is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the FMLA claim against Defendants are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the state law claims against Defendants
are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants' request for sanctions is
This is a final order that closes the case.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: June 4, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 4, 2021, by electronic and/or ordinary mail.
s/ David P. Parker
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