Ex-Fieger Attorney’s Family Leave Lawsuit Revived on Appeal

A Fieger & Fieger PC attorney who was fired immediately after requesting unpaid leave to care for her two-year old child as the Covid-19 pandemic grew saw her wrongful discharge suit renewed on Wednesday.

Polina Milman’s request for leave is protected under the Family and Medical Leave Act, regardless of whether she was entitled to the leave, the US Court of Appeals for the Sixth Circuit ruled, reversing the lower court’s dismissal.

Milman began working at Fieger & Fieger PC in 2018, according to the opinion. After the firm’s owner, Geoffrey Fieger, denied her request to work remotely for a couple days in mid-March 2020, she contacted human resources. She expressed her concerns about working in-person as her son was vulnerable due to a bout of Respiratory Syncytial Virus and was exhibiting symptoms resembling Covid-19.

She offered to take unpaid leave to stay out of the office, and HR instead offered that she work from home for a short time. HR sent her a termination letter signed by Fieger the second day she worked from home. A second termination later stated she refused to work because her “child had a cold” and “it was clear [she] had quit.”

The US District Court for the Eastern District of Michigan dismissed the case, holding precedent required Milman to show that “she was entitled to FMLA leave” to sustain an FMLA retaliation claim. Even if she had, the court said she didn’t allege facts to support that her son suffered from a “serious health condition” to create an entitlement to leave.

The circuit court disagreed, holding that the text of the FMLA provision and Congress’s intent support its conclusion that her request constituted a protected activity.

The initial request for leave must be protected under for the Act to “protect the ‘exercise or attempt to exercise’ FMLA rights,” and “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,” Judge Jane Branstetter Stranch said for the court.

The court noted that other circuits, including the Eighth and Seventh, have similarly concluded that an employee’s notice of need qualifies as protected conduct.

Fieger argued that even if Milman’s actions were protected, her claim failed because she didn’t provide necessary notice. The court rejected the argument, holding Milman plausibly attempted to engage with the firm, but it failed to exhaust any of its obligations in responding to her request.

Judge Raymond M. Kethledge joined the opinion. Judge John B. Nalbandian concurred, further discussing what he believes the limits are on “attempt to exercise” FMLA leave claims.

Deborah Gordon Law represents Milman. Fieger, Fieger, Kenney & Harrington PC represents itself and Geoffrey Fieger.

The case is Milman v. Fieger & Fieger PC, 6th Cir., No. 21-02685, 1/25/23.