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Date: 01-25-2023

Case Style:

Polina Milman v. Fieger & Feiger, P.C., et al.

Case Number: 21-2685

Judge: Stranch

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Michigan (Wayne County)

Plaintiff's Attorney: Molly Savage

Defendant's Attorney: Robert G. Kamenee

Description: Detroit, Michigan civil rights lawyer represented Plaintiff who sued Defendant on a Family and Medical Leave Act violation theory.

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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.

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 COVID19. Based on the imminent emergency, the Firm requested that Milman thoroughly clean her 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 cto 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.

Outcome: We REVERSE and REMAND the case for further proceedings consistent with this opinion.

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