UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ POLINA MILMAN, │ Plaintiff-Appellant, │ > No. 21-2685 │ v. │ │ FIEGER & FIEGER, P.C., dba Fieger, Fieger, Kenney & │ Harrington, P.C.; GEOFFREY NELS FIEGER, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:20-cv-12154—Stephen J. Murphy, III, District Judge.

Argued: May 4, 2022

Decided and Filed: January 25, 2023

Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.

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COUNSEL ARGUED: Molly Savage, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellees. ON BRIEF: Molly Savage, Deborah L. Gordon, Elizabeth Marzotto Taylor, Sarah Gordon Thomas, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellees.

STRANCH, J., delivered the opinion of the court in which KETHLEDGE and NALBANDIAN, JJ., joined. NALBANDIAN, J. (pp. 18–23), delivered a separate concurring opinion. No. 21-2685 Milman v. Fieger & Fieger, P.C., et al. Page 2

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OPINION _________________

JANE B. STRANCH, Circuit Judge. 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. For the reasons that follow, we REVERSE and REMAND for further proceedings.

I. BACKGROUND

A. Factual Background

Because this case is addressed at the motion to dismiss stage, the following allegations as set out in the First Amended Complaint1 are taken as true and construed in the light most favorable to Milman. See Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp., 830 F.3d 376, 382–83 (6th Cir. 2016).

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 COVID- 19. Based on the imminent emergency, the Firm requested that