FMLA Retaliation: Requesting FMLA Paperwork Is “Protected Activity” Even Before Entitlement Is Determined

Case: Daniel Paris v. MacAllister Machinery Co., Inc.
Court: Court of Appeals for the Sixth Circuit
Date: May 14, 2026

I. Introduction

This Sixth Circuit decision arises from Daniel Paris’s dispute with his former employer, MacAllister Machinery Company, Inc. (d/b/a Michigan CAT), and his union, the International Union of Operating Engineers, Local 324. Paris alleged multiple theories of liability, including: (1) FMLA interference and retaliation against MacAllister; and (2) LMRA “hybrid” claims premised on an alleged breach of the collective bargaining agreement (CBA) by MacAllister and an alleged breach of the duty of fair representation by the Union. He also brought Michigan ELCRA claims, which the district court declined to hear after dismissing the federal labor claims.

The factual backdrop included a long record of disciplinary and performance issues, a “last chance agreement” (LCA) signed October 31, 2018, a December 2018 workplace incident that Paris described as triggering anxiety and distress, an email inquiry about the process and forms to request FMLA leave, and a January 2019 termination that MacAllister attributed to LCA violations and ongoing performance/work-rule issues.

The principal appellate issues were whether the district court correctly: (1) granted summary judgment on FMLA interference (serious health condition/entitlement); (2) granted summary judgment on FMLA retaliation (protected activity and pretext); and (3) dismissed LMRA claims for failure to plausibly plead a union breach of the duty of fair representation.

II. Summary of the Opinion

  • FMLA interference: Affirmed. Paris failed to create a genuine dispute that he had a statutory “serious health condition” because he received neither inpatient care nor continuing treatment by a health care provider.
  • FMLA retaliation: Affirmed on pretext grounds, but with an important clarification. The Sixth Circuit held the district court erred in concluding Paris did not engage in protected activity; Paris’s request for FMLA paperwork/information was protected activity. Still, MacAllister prevailed because Paris could not show its stated reasons for termination were pretextual.
  • LMRA § 301 / duty of fair representation: Affirmed dismissal. Paris did not plausibly allege that the Union’s conduct was arbitrary, discriminatory, or in bad faith, and he waived several arguments on appeal.

III. Analysis

A. Precedents Cited

1. Pleading and summary-judgment standards

  • Ashcroft v. Iqbal (556 U.S. 662 (2009)) anchored the Rule 12(b)(6) approach: courts accept well-pleaded facts as true but reject “threadbare recitals” and conclusory assertions. This mattered for the LMRA/duty-of-fair-representation allegations, where Paris’s assertions of coercion and union wrongdoing lacked factual detail.
  • Anderson v. Liberty Lobby, Inc. (477 U.S. 242 (1986)), Morales v. Am. Honda Motor Co., Inc. (71 F.3d 531 (6th Cir. 1995)), Alexander v. CareSource (576 F.3d 551 (6th Cir. 2009)), and Donald v. Sybra, Inc. (667 F.3d 757 (6th Cir. 2012)) framed summary judgment: a nonmovant needs admissible evidence showing a genuine dispute; a “mere scintilla” is insufficient. Those standards were decisive for the FMLA interference claim (no evidence of qualifying medical treatment) and for the retaliation pretext analysis (no evidence beyond timing).
  • Doe v. Univ. of Ky. (111 F.4th 705 (6th Cir. 2024)) was cited for considering the full record at summary judgment.

2. FMLA interference and retaliation framework

  • Edgar v. JAC Prods., Inc. (443 F.3d 501 (6th Cir. 2006)) supplied the classic Sixth Circuit distinction between the FMLA “interference/entitlement” theory and the “retaliation” theory, and it undergirded the interference prima facie elements.
  • Walton v. Ford Motor Co. (424 F.3d 481 (6th Cir. 2005)) was used to state entitlement principles: leave requires a “serious health condition” rendering an employee unable to perform job functions.
  • Seeger v. Cincinnati Bell Tel. Co., LLC (681 F.3d 274 (6th Cir. 2012)) supported key points: (i) interference does not require employer intent; (ii) temporal proximity can help establish prima facie causation; but (iii) temporal proximity alone cannot establish pretext.
  • Milman v. Fieger & Fieger, P.C. (58 F.4th 860 (6th Cir. 2023)) was the opinion’s most important FMLA precedent. Paris extends Milman’s reasoning: the FMLA protects not only the exercise of rights but the “attempt to exercise” rights, and the “first step” can be protected. Here, the Sixth Circuit treated requesting the paperwork required to initiate the process as a protected “first step.”
  • Render v. FCA US, LLC (53 F.4th 905 (6th Cir. 2022)) was distinguished. The court noted that Render did not hold that asking for forms is not protected; rather, Render involved a situation where a serious health condition and medical certification were already in play.
  • McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)) provided the burden-shifting framework for circumstantial-evidence retaliation claims.
  • Bryson v. Regis Corp. (498 F.3d 561 (6th Cir. 2007)) was used for the “minimal” prima facie burden and temporal-proximity causation at the initial stage.
  • Skrjanc v. Great Lakes Power Serv. Co. (272 F.3d 309 (6th Cir. 2001)) framed the employer’s burden to articulate a legitimate, nondiscriminatory reason and the plaintiff’s subsequent burden to show pretext.
  • Lackey v. Jackson County (104 F. App’x 483 (6th Cir. 2004)) supported the interference holding that insufficient medical evidence defeats the “serious health condition” requirement.
  • Hammon v. DHL Airways, Inc. (165 F.3d 441 (6th Cir. 1999)) appeared in the court’s discussion to clarify that interference “notice” principles are distinct from the “protected activity” inquiry in retaliation claims.
  • The court also used out-of-circuit authority consistent with Milman’s approach to “first-step” protection: McArdle v. Town of Dracut/Dracut Pub. Schs. (732 F.3d 29 (1st Cir. 2013)) and Ziccarelli v. Dart (35 F.4th 1079 (7th Cir. 2022)).
  • Two unpublished Sixth Circuit decisions were discussed because the district court relied on them: Basch v. Knoll, Inc. (619 F. App’x 457 (6th Cir. 2015)) and Festerman v. County of Wayne (611 F. App’x 310 (6th Cir. 2015)). The Sixth Circuit emphasized that neither meaningfully analyzed what constitutes “protected activity,” so they did not justify the district court’s narrow view.

3. LMRA hybrid § 301 and duty of fair representation

  • White v. Anchor Motor Freight, Inc. (899 F.2d 555 (6th Cir. 1990)), Jones v. Gen. Motors Corp. (939 F.2d 380 (6th Cir. 1991)), Garris v. Int'l Union United Auto., Aerospace, & Agric. Implement Workers of Am. (417 F.3d 590 (6th Cir. 2005)), and Bagsby v. Lewis Bros., Inc. of Tenn. (820 F.2d 799 (6th Cir. 1987)) supplied the basic hybrid rule: the plaintiff must prove both (i) employer breach of the CBA and (ii) union breach of the duty of fair representation; failure of one defeats the entire hybrid claim.
  • Air Lines Pilots Ass'n Int'l v. O'Neill (499 U.S. 65 (1991)) was used to define the duty’s standard and deference: union conduct is unlawful if it falls outside a “wide range of reasonableness.”
  • Black v. Ryder/P.I.E. Nationwide, Inc. (15 F.3d 573 (6th Cir. 1994)) reiterated the tripartite test: union conduct must be “arbitrary, discriminatory, or in bad faith.”
  • Merritt v. Int'l Ass'n of Machinists & Aerospace Workers (613 F.3d 609 (6th Cir. 2010)) refined “bad faith” as requiring improper motive (e.g., fraud/dishonesty/intentionally misleading conduct) and explained arbitrariness through O’Neill’s reasonableness lens.
  • Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge (403 U.S. 274 (1971)) was used (via Merritt) for the arbitrariness/union-objectives framing.
  • Agema v. City of Allegan (826 F.3d 326 (6th Cir. 2016)) and Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp. (830 F.3d 376 (6th Cir. 2016)) supported the plausibility requirement for pleading.
  • Bates v. Green Farms Condo. Ass'n (958 F.3d 470 (6th Cir. 2020)) was cited for the rule that briefing cannot amend an insufficient complaint.
  • McPherson v. Kelsey (125 F.3d 989 (6th Cir. 1997)) drove waiver: underdeveloped appellate arguments are forfeited.

B. Legal Reasoning

1. FMLA interference: “serious health condition” as a threshold gate

The court treated “serious health condition” as dispositive of interference entitlement. The statutory definition (29 U.S.C. § 2611(11)) requires either (A) inpatient care, or (B) continuing treatment by a health care provider. Paris presented evidence of self-described anxiety, stress, sleep and appetite changes, and “mental anguish,” and he pointed to his email describing an “anxiety attack.” But he admitted he did not see a mental-health professional and submitted nothing from a provider. On that record, the court held no reasonable jury could find “inpatient care” or “continuing treatment,” and thus no entitlement to FMLA leave.

Notably, the court rejected the framing that this was “weighing evidence.” It treated the issue as a legal insufficiency: Paris’s own testimony foreclosed the statutorily required medical-treatment element.

2. FMLA retaliation: the “protected activity” expansion—paperwork requests count

The most significant doctrinal development is the court’s holding that requesting FMLA paperwork “under these circumstances” is protected activity. Building on Milman v. Fieger & Fieger, P.C., the court reasoned:

  • The FMLA prohibits interference with the “exercise of or the attempt to exercise” FMLA rights (29 U.S.C. § 2615(a)(1)).
  • Because employees must initiate the process (including employer notice and, often, certification), the statute’s protections would be hollow if employers could lawfully terminate employees for taking the “first step.”
  • A request for the forms and doctor-related requirements is functionally part of initiating that process—especially where the employer has directed the employee to the HR contact responsible for leave administration.

The court also corrected a methodological error it attributed to the district court: importing “notice for interference” concepts (which focus on whether the employer has enough information to assess entitlement) into the “protected activity” element for retaliation. For retaliation, the first-step inquiry is whether the employee attempted to exercise rights and whether the employer knew it.

Importantly, the court limited what it was deciding. It did not define every scenario in which “inquiries” are protected; it held only that a request for paperwork initiating the FMLA process can be protected activity, and emphasized that other elements (causation, legitimate reason, pretext) still constrain liability.

3. Retaliation nevertheless fails: no evidence of pretext

Even after finding a prima facie case (protected activity, employer knowledge, adverse action, and temporal-proximity causation), the court affirmed summary judgment because MacAllister offered legitimate, nondiscriminatory reasons and Paris offered no evidence of pretext.

  • Legitimate reason: extensive discipline/performance history plus the LCA, and the employer’s decision that post-LCA violations were “too great.”
  • No pretext: Paris did not produce evidence undermining the stated reasons; timing alone cannot prove pretext under Seeger v. Cincinnati Bell Tel. Co., LLC.

4. LMRA hybrid § 301: pleading the duty of fair representation is not optional

The opinion reaffirms an unforgiving structural feature of hybrid § 301 litigation: the claim collapses unless the plaintiff plausibly alleges (and ultimately proves) both employer breach of the CBA and union breach of the duty of fair representation. The district court focused on the latter, and the Sixth Circuit agreed that was sufficient because failure of one element defeats the whole claim.

The Sixth Circuit found Paris’s allegations deficient in two main ways:

  • Demotion/pay cut grievance: Paris did not clearly allege he requested a grievance or that the union was required to pursue it; his own phrasing (“attempted” to grieve or “thought” he was grieving) did not plausibly establish union dereliction.
  • LCA coercion and termination grievance: conclusory assertions of “force and coercion” lacked factual content showing arbitrary, discriminatory, or bad-faith conduct as defined by Merritt v. Int'l Ass'n of Machinists & Aerospace Workers and Air Lines Pilots Ass'n Int'l v. O'Neill. Attempts to add detail in briefing were barred by Bates v. Green Farms Condo. Ass'n. Several theories were also waived on appeal under McPherson v. Kelsey.

C. Impact

1. Practical effect in the Sixth Circuit: “paperwork requests” are now clearly within the protected zone

The decision meaningfully strengthens retaliation protections at the earliest stage of FMLA invocation. After this case, employers in the Sixth Circuit face increased litigation risk if they take adverse action shortly after an employee requests: (i) FMLA forms; (ii) instructions about medical certification; or (iii) other process-initiating paperwork—at least where the request is tied to seeking leave for a medical condition and is directed through the employer’s designated HR channel.

2. The holding is employee-protective but not employee-dispositive

The court directly addressed the employer’s “indefinite unresponsiveness” concern by emphasizing that protected activity does not equal liability. Plaintiffs must still prove causation and—most importantly in contested terminations—pretext. This opinion itself illustrates that even a broadened “protected activity” rule will not overcome a well-supported disciplinary record absent evidence undermining the employer’s explanation.

3. Interference claims remain medically anchored

On interference, the opinion underscores a continuing evidentiary reality: without inpatient care or continuing provider treatment (and often some certification-related proof), plaintiffs face steep odds in establishing “serious health condition.” The court’s approach signals limited tolerance for purely self-reported symptoms unsupported by provider involvement when entitlement is the issue.

4. Hybrid § 301 claims: careful pleading and appellate preservation are essential

The LMRA portion reinforces two recurring barriers: (i) plausibility pleading must include concrete facts showing the union was asked to act (and had reason/obligation to act) and then acted arbitrarily, discriminatorily, or in bad faith; and (ii) undeveloped arguments are waived on appeal. For practitioners, this decision is a cautionary example of how hybrid claims can fail at the threshold without robust, specific factual allegations.

IV. Complex Concepts Simplified

  • “Serious health condition” (FMLA): Not every health problem qualifies. The statute requires either hospital-type care or ongoing treatment by a health care provider. Feeling anxious or stressed, without provider treatment, generally will not meet the definition for interference/entitlement.
  • FMLA “interference” vs. “retaliation”: Interference asks whether the employee was denied an FMLA benefit (e.g., leave) they were entitled to. Retaliation asks whether the employer punished the employee for trying to use FMLA rights—even if leave never actually occurred.
  • “Protected activity”: Conduct the law protects from employer punishment. This case clarifies that asking HR for the forms/instructions needed to request FMLA leave can be protected activity because it is an “attempt to exercise” FMLA rights.
  • McDonnell Douglas burden-shifting: A three-step structure for circumstantial evidence: (1) employee shows a minimal prima facie case; (2) employer offers a legitimate reason; (3) employee must show that reason is a pretext (not the real reason).
  • Pretext: Evidence that the employer’s stated reason is not credible or did not actually motivate the decision (e.g., inconsistencies, comparators, shifting explanations). Timing alone is usually insufficient.
  • Hybrid LMRA § 301 claim: A combined lawsuit against employer and union. The employee must show both (a) the employer violated the CBA and (b) the union violated its duty of fair representation. Missing either one defeats the claim.
  • Duty of fair representation: The union’s legal duty to represent members honestly and in good faith. Breach requires conduct that is arbitrary, discriminatory, or in bad faith—more than negligence or dissatisfaction with outcomes.
  • Waiver on appeal: If a party does not adequately argue an issue in its appellate brief, the court may treat it as forfeited and refuse to consider it.

V. Conclusion

The Sixth Circuit affirmed judgment for MacAllister and the Union, but it announced a noteworthy clarification for FMLA retaliation law: an employee’s request for FMLA paperwork and doctor-related requirements—i.e., a process-initiating “first step”—is “protected activity” under the FMLA’s protection of the “attempt to exercise” rights. Even so, the plaintiff must still prove the employer’s stated reason was pretextual, and Paris could not overcome MacAllister’s well-documented performance and LCA-based rationale.

The opinion simultaneously reinforces two limiting principles: FMLA interference claims require evidence satisfying the statutory “serious health condition” definition, and hybrid LMRA claims demand specific, plausible allegations (and preserved arguments) showing a union’s arbitrary, discriminatory, or bad-faith representation failures.