Daniel Paris v. Macallister Machinery Company, Inc.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DANIEL PARIS,
Plaintiff-Appellant,
v.
MACALLISTER MACHINERY COMPANY, INC.;
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 324,
Defendants-Appellees.
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No. 25-1726
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:19-cv-12053—Denise Page Hood, District Judge.
Argued: March 19, 2026
Decided and Filed: May 14, 2026
Before: CLAY, GIBBONS, and HERMANDORFER, Circuit Judges.
_________________
COUNSEL
ARGUED: Carla D. Aikens, CARLA D. AIKENS, P.L.C., Detroit, Michigan, for Appellant.
Christopher R. Mikula, OGLETREE DEAKINS, PLLC, Birmingham, Michigan, for Appellee
MacAllister Machinery Company. Jacquelyne M. Zolynsky, ASHERKELLY, PLLC,
Southfield, Michigan, for Appellee International Union of Operating Engineers. ON BRIEF:
Carla D. Aikens, CARLA D. AIKENS, P.L.C., Detroit, Michigan, for Appellant. Christopher R.
Mikula, Jeffrey A. Bove, OGLETREE DEAKINS, PLLC, Birmingham, Michigan, for Appellee
MacAllister Machinery Company. Jacquelyne M. Zolynsky, David J. Selwocki,
ASHERKELLY, PLLC, Southfield, Michigan, for Appellee International Union of Operating
Engineers.
GIBBONS, J., delivered the opinion of the court in which CLAY, J., concurred, and
HERMANDORFER, J., concurred in all but Part IV.B.1.
>

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_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. This appeal arises from Daniel Paris’s action
against his former employer, MacAllister Machinery Company, Inc., d/b/a Michigan CAT, and
the International Union of Operating Engineers, Local 324. Paris sued MacAllister for alleged
violations of the Family and Medical Leave Act (FMLA), Labor Management Relations Act
(LMRA), and Michigan Elliott-Larsen Civil Rights Act (ELCRA). He also brought LMRA and
ELCRA claims against the Union.
The district court dismissed Paris’s LMRA claims against MacAllister and the Union
because Paris failed to plausibly allege that the Union breached the duty of fair representation.
And the court declined to exercise supplemental jurisdiction over Paris’s state law claims against
both defendants. At the close of discovery, the court entered summary judgment for MacAllister
on Paris’s FMLA claims.
We affirm the district court’s decisions.
I.
In our review of the district court’s orders, we accept as true Paris’s well-pleaded factual
allegations but reject “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements[.]” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To review the
district court’s grant of summary judgment to MacAllister, we also consider “the plethora of
material available in the record.” See Doe v. Univ. of Ky., 111 F.4th 705, 715 (6th Cir. 2024).
Paris began working for MacAllister on August 25, 2014, and became a member of the
Union around that time. After several promotions, Paris assumed the role of “Field Technician,”
in which he serviced customers’ CAT trucks. DE 50-3, Depo. Tr. Paris, Page ID 470–71
(citation modified). Paris alleged that non-union-affiliated employees discriminated against him
because of his union membership, employees discriminated against him because of his younger
age, and he received harsher scrutiny than his co-workers for similar behavior.

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Paris had a history of disciplinary incidents and negative performance reviews. One
review of his performance from 2015 to 2016 indicated that Paris’s supervisors felt the need to
“consistently” remind him to “complete simple daily tasks.” Id. at 473; DE 50-10, Performance
Plan, Page ID 785. On August 4, 2017, Paris received an attendance warning because he had
incurred six disciplinary “points” for early departures, absences, and tardy appearances. DE 50-
12, Employee Warning Notice, Page ID 795; DE 50-3, Depo. Tr. Paris, Page ID 474. Another
warning dated October 13, 2017, indicated that Paris had issues of poor productivity or
performance and that further issues could result in termination. MacAllister expressly noted that
it would “further discipline” Paris or “terminate” his employment if these problems continued.
DE 50-3, Depo. Tr. Paris, Page ID 475.
Paris’s disciplinary and performance-related issues continued. For instance, a
performance plan dated November 9, 2017, noted that Paris’s productivity and service quality
needed improvement. On June 29, 2018, MacAllister issued Paris another disciplinary warning
for attendance-related issues.
On October 31, 2018, MacAllister gave Paris the opportunity to sign a “last chance”
“final warning” or face termination. Id. at 489. Paris stated that he signed the last-chance
agreement (LCA) “[u]nder duress” because if he “did not sign it, [his employment] would be
terminated immediately.” Id. While Paris’s allegations reflect some ambiguity regarding
whether MacAllister presented him with the LCA on October 31, 2018, or in December 2018,
the record is clear that Paris signed the LCA on October 31, 2018.
Paris claimed that in December 2018 his union steward informed him that MacAllister
intended to terminate his employment. Moreover, Paris alleged that the Union met with
MacAllister’s agents without him present. And the steward told Paris that he could no longer
“help [Paris] as much” because Paris, having mentioned his possible termination to a coworker,
did not “keep his mouth shut.” DE 25, Am. Compl., Page ID 145. According to Paris,
MacAllister’s and the Union’s agents acknowledged that Paris had been “targeted and treated
differently,” but they ordered him to “stop talking” and stop “filing grievances,” and they “forced
and coerced him” to sign the LCA. Id. at 145–46. MacAllister changed Paris’s role from “Field
Technician” to “Tech I,” resulting in a pay reduction. Id. at 151 (citation modified). Paris either

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“attempted to grieve” the demotion or “thought that he was in the process of grieving” it, but the
Union did not process his grievance. Id.
Later in December, Patrick Monahan, one of Paris’s supervisors, accused Paris of
violating company policy by not wearing steel-toed boots. When Paris denied the accusation,
Monahan tried to grab him and step on his foot to determine whether Paris was wearing the
required boots. Paris emailed MacAllister’s human-resources contact that he was “mentally
distraught and having an anxiety attack from the harassment,” so he needed to take the day off
from work. DE 50-27, Depo. Tr. Paris, Page ID 1142–43. Later, Paris stated that he experienced
anxiety, stress, drinking problems, loss of sleep, appetite, and weight, and “just sheer mental
anguish” because he feared being singled out and fired. DE 50-3, Depo. Tr. Paris, Page ID 519.
Paris did not see a “mental health professional” for these issues. Id.
Peter S. Israel, a human-resources employee at MacAllister, responded to Paris’s email
on December 20, 2018. Israel acknowledged that Monahan “invad[ed] [Paris’s] personal space”
and stated that Paris could inquire about FMLA leave by reaching out to another employee, Irina
Itskovich. DE 50-26, Emails with Israel, Page ID 1112. Paris emailed Itskovich on December
21, 2018, to inquire about the process of taking leave for his “medical condition.” DE 50-28,
Decl. Irina Itskovich, Page ID 1155; DE 50-29, Emails with Itskovich, Page 1159. He asked
Itskovich to indicate the forms that he and his doctor needed to provide. Itskovich sent Paris the
FMLA request form that day and asked him to return it to her. The form contained “questions
designed to obtain information about the reason an employee is requesting FMLA, whether the
leave [would] be continuous or intermittent, and the start and end date of the leave.” DE 50-28,
Decl. Irina Itskovich, Page ID 1155; see also DE 50-29, Emails with Itskovich, Page ID 1160–
61.
Itskovich stated that Paris never responded to her email or returned the FMLA Request
Form. Paris later stated that he “informed” MacAllister’s agents that he would be filing for
intermittent FMLA leave, that he could not “remember” whether he reached out to Itskovich, and
that he could not remember whether he told someone that he would be filing for leave. DE 55-8,
Decl. Paris, Page ID 1343; DE 50-27, Depo. Tr. Paris, Page ID 1136–37, 1143. Moreover, Paris

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stated that he “never” submitted anything from a health care provider to request leave. DE 50-
27, Depo. Tr. Paris, Page ID 1143.
Within a month, the union steward informed Paris that MacAllister was terminating his
employment “because he had not worn steel-toed boots on the work site[.]” DE 25, Am. Compl.,
Page ID 147. After learning about his termination, Paris unsuccessfully attempted to contact
several of the Union’s agents and texted the Union’s benefits director to ask why he was being
fired and request that the Union file a grievance. The director said that the Union could not file a
grievance because Paris signed an LCA; a week later, the director sent Paris a list of infractions
that MacAllister cited as the reasons for firing him.
This list included infractions that Paris has called “negligible.” Id. at 148. It reflected
numerous incidents from October 2018 to January 2019, including Paris’s adherence to incorrect
troubleshooting procedures, failure to wear required protective equipment, overcharging
customers, and parking an unapproved personal vehicle in the company’s yard. When asked
why Paris was fired, Monahan identified Paris’s “inability to follow proper procedure and
[MacAllister’s] work rules,” as well as Paris’s “performance[-]related issues[.]” DE 50-7, Depo.
Tr. Monahan, Page ID 651; see id. at 719–20. And Israel stated that a group of employees
reviewed “all the instances” and “felt at that time that the violations were too great and moved to
termination.” DE 50-16, Depo. Tr. Israel, Page ID 830. MacAllister’s “Employee Warning
Notice” dated January 11, 2019, indicated that Paris was fired because he “failed to uphold his
commitments defined in his [LCA] dated 10/31/2018.” DE 50-22, Employee Warning Notice,
Page ID 1101.
II.
Paris sued MacAllister and the Union on July 10, 2019. On October 6, 2020, he filed the
now-operative Amended Complaint, which includes six counts: (I) a hybrid LMRA section 301
claim based on MacAllister’s breach of the collective bargaining agreement (CBA) and the
Union’s breach of the duty of fair representation; (II) an LMRA section 301 claim based on
MacAllister’s breach of the CBA; (III) FMLA interference and retaliation claims against
MacAllister; (IV) ELCRA harassment and age-discrimination claims against both defendants;

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(V) ELCRA retaliation claims against both defendants; and (VI) an ELCRA hostile workplace
environment claim against MacAllister.
On December 7, 2021, the district court dismissed Paris’s LMRA claims against the
Union and MacAllister for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). And the court dismissed Paris’s ECLRA claims against both defendants after it
declined to exercise supplemental jurisdiction over these claims. Paris filed a motion for
reconsideration of the order, which the district court denied on August 15, 2022. Paris appealed
from this denial and an earlier panel of our court dismissed his appeal for lack of jurisdiction.
On December 13, 2024, MacAllister moved for summary judgment on Count III, which
comprised Paris’s FMLA claims against MacAllister. These were Paris’s sole remaining claims.
The district court granted MacAllister’s motion for summary judgment on August 7, 2025. On
August 12, 2025, Paris timely appealed. See Fed. R. App. P. 4(a)(1)(A).
III.
We review de novo the district court’s grant of summary judgment. Edgar v. JAC
Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006). Summary judgment is appropriate if a party
establishes there is no genuine issue of material fact and that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). A fact is material if it could affect the suit’s outcome under the
governing law, and a dispute about a material fact is genuine if the evidence would allow a
reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). At this stage, we must believe the non-moving party’s evidence and draw justifiable
inferences in that party’s favor. Morales v. Am. Honda Motor Co., Inc., 71 F.3d 531, 535 (6th
Cir. 1995). A party opposing a motion for summary judgment must lay out “enough evidence
that will be admissible at trial” to show a genuine issue of material fact. Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (emphasis removed). And a “mere scintilla” of
evidence supporting the non-movant’s position will not suffice to survive summary judgment.
Donald v. Sybra, Inc., 667 F.3d 757, 760–61 (6th Cir. 2012).
We also review de novo the district court’s dismissal of Paris’s claims pursuant to Rule
12(b)(6). Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). We take as true well-

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pleaded factual allegations in the operative complaint and construe them in the light most
favorable to Paris. See Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 865 (6th Cir. 2023). But
the complaint must contain enough “factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp., 830 F.3d
376, 382–83 (6th Cir. 2016) (citation modified).
IV.
Paris raises three main issues on appeal. First, Paris asserts that the district court
improperly granted MacAllister summary judgment on his FMLA interference claim. Second,
he argues that the district court improperly granted MacAllister summary judgment on his
FMLA retaliation claim. Third, he argues that the district court erroneously dismissed his
LMRA claims against MacAllister and the Union.
The district court properly entered summary judgment on Paris’s FMLA interference
claim because Paris failed to establish a genuine issue of material fact as to whether he had a
“serious health condition” under the FMLA. See 29 U.S.C. § 2611(11). We affirm the court’s
entry of summary judgment on Paris’s FMLA retaliation claim because MacAllister established
that its termination of Paris’s employment was not pretextual. Finally, we affirm the district
court’s dismissal of Paris’s LMRA claims because Paris did not plausibly allege that the Union
violated the duty of fair representation and Paris waived several arguments on appeal.
A.
The district court properly granted summary judgment in favor of MacAllister on Paris’s
FMLA interference claim. Indeed, no genuine dispute of material fact existed as to whether
Paris showed an entitlement to leave under the FMLA because Paris failed to establish a “serious
health condition.” DE 57, Op. & Order, Page ID 1428. Paris argues that the court “usurped the
role of the jury” by impermissibly weighing evidence and making credibility determinations
about his “serious health condition.” CA6 R. 20, Appellant Br., Page ID 10, 13–14.
Under the FMLA, an “eligible employee” may be entitled to up to twelve weeks of
unpaid leave each year if he establishes, among other things, that he has a “serious health

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condition” rendering him “unable to perform the functions of the position of such employee.”
Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting 29 U.S.C. §
2612(a)(1)(D)). A “serious health condition” is an “illness, injury, impairment, or physical or
mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical
care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11); see
also 29 C.F.R. § 825.113(a). Employers may require employees claiming a “serious health
condition” to support their contention with a written certification from a health care provider.
See 29 U.S.C. § 2613(a).
Section 105 of the FMLA prohibits covered employers from interfering with, restraining,
or denying employees’ statutory rights, 29 U.S.C. § 2615(a)(1), and from discharging or “in any
other manner discriminat[ing] against any individual for opposing any practice made unlawful”
under the subchapter, id. § 2615(a)(2), (b). Section 107 provides a private right of action against
employers who violate that section. Id. § 2617(a)(2). The FMLA creates two theories of
recovery: the “entitlement” or “interference” theory, applicable where an employer denies an
employee a statutory entitlement, and the “retaliation” theory, applicable where an employer acts
against an employee because he invoked FMLA rights. See Edgar, 443 F.3d at 507–08; Milman,
58 F.4th at 867.
To establish a prima facie case of FMLA interference, Paris must show that (1) he was an
eligible employee, (2) MacAllister was a covered employer, (3) Paris was entitled to leave under
the FMLA, (4) he gave MacAllister notice of his intent to take leave, and (5) MacAllister denied
him FMLA benefits to which he was entitled. See Donald, 667 F.3d at 761. Paris’s recovery
under this theory does not depend on a showing that MacAllister intended to violate his rights.
See Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012). Neither party
disputes the first two elements and both parties focus instead on the third and fourth elements—
whether Paris established a “serious health condition” entitling him to leave under the FMLA
and whether Paris gave MacAllister adequate notice of his intent to take leave under the statute.
Because Paris failed to establish a “serious health condition,” the district court properly
granted MacAllister summary judgment on his claim. There is no genuine issue of material fact
as to whether Paris established a “serious health condition” because the record reflects that Paris

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did not receive inpatient care for his anxiety or consult with a health care provider. See 29
U.S.C. § 2611(11). When asked to identify symptoms or health problems that Paris believed
were associated with his experience at MacAllister, he listed anxiety, stress, drinking to deal with
these issues, loss of sleep, appetite, and weight, marital problems, financial problems, and the
“sheer mental anguish of knowing at any moment in the day” that he could be fired when other
employees were “all doing the same thing[.]” DE 50-3, Depo. Tr. Paris, Page ID 518–19. Paris
also stated in his email to Israel that he was “mentally distraught” and had an “anxiety attack,” so
he decided to take “personal time off the rest of the day.” DE 55-11, Emails with Israel, Page ID
1352–53.
But when asked whether he had seen a “mental health professional” for any of these
issues, Paris stated that he had not. DE 50-3, Depo. Tr. Paris, Page ID 519. It is undisputed that
Paris did not receive treatment or counseling for “any mental, psychiatric, psychological, or
emotional issues[.]” DE 50-27, Depo. Tr. Paris, Page ID 1142. Because Paris did not receive
“inpatient care” or “continuing treatment by a health care provider,” he failed to establish a
“serious health condition.” 29 U.S.C. § 2611(11); 29 C.F.R. § 825.113.1
The district court did not improperly resolve a factual dispute. No jury could have found
in Paris’s favor on this element. See 29 U.S.C. § 2611(11); 29 C.F.R. § 825.113; see also Lackey
v. Jackson County, 104 F. App’x 483, 488–89 (6th Cir. 2004) (concluding that an employee
failed to establish a “serious health condition” because he produced insufficient medical
evidence). And Paris’s reliance on Render v. FCA US, LLC, 53 F.4th 905 (6th Cir. 2022), does
not help him. There, the plaintiff’s “serious health condition” was not in dispute, as his doctor
“submitted a medical certification form” and his employer responded by tentatively approving
his request to take leave. Id. at 910, 914.
Our inquiry thus ends with Paris’s failure to establish a “serious health condition.” See
29 U.S.C. § 2611(11). The district court properly entered summary judgment on Paris’s FMLA
1Paris claims that the district court erred by “faulting Mr. Paris for not having yet seen a doctor,” CA6 R.
20, Appellant Br., Page ID 14, but the statute states in no uncertain terms that an employee must either obtain
inpatient care or receive ongoing treatment from a health care provider to establish a “serious health condition,” 29
U.S.C. § 2611(11)(B).

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interference claim because no genuine issue of material fact existed as to whether Paris
established an entitlement to leave and because MacAllister was entitled to judgment as a matter
of law.
B.
We likewise affirm the district court’s entry of summary judgment for MacAllister on
Paris’s retaliation claim. Paris asserted an FMLA retaliation claim based on “circumstantial
evidence” of discrimination, so we apply the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate whether his claim can
withstand the motion for summary judgment. See Seeger, 681 F.3d at 283.
An FMLA retaliation or discrimination claim arises when an employer “takes an adverse
employment action against the employee for exercising or attempting to exercise a right
protected by the FMLA.” Milman, 58 F.4th at 866. To state a prima facie case for retaliation,
Paris was required to show the following: (1) He was “engaged in protected activity”; (2) his
employer “knew [he] was engaged in protected activity”; (3) his employer “took an adverse
employment action against [him]”; and (4) “there was a causal connection between the protected
activity and the adverse employment action.” Id. at 867. Paris’s burden is not “onerous[.]”
Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (citation modified). If Paris establishes
these elements, the burden shifts to MacAllister to show that it had a “legitimate,
nondiscriminatory reason” to terminate Paris’s employment. See Render, 53 F.4th at 920
(quotation omitted). Assuming MacAllister does so, “the burden shifts back” to Paris to show
that MacAllister’s “given reason was pretextual.” See id.
The district court granted summary judgment in favor of MacAllister on Paris’s
retaliation claim because it concluded that Paris did not engage in a “protected activity,” as he
requested only information about the process of obtaining FMLA leave. See DE 57, Op. &
Order, Page ID 1433. Paris disputes the district court’s conclusion that his inquiry was not a
“protected activity” and that he failed to establish a prima facie case for FMLA retaliation. See
CA6 R. 20, Appellant Br., Page ID 17–19. MacAllister supports the district court’s conclusion
that Paris failed to establish a prima facie case for retaliation. Moreover, MacAllister contends

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that Paris also failed to show that his termination stemmed from pretext. We consider each
argument in turn.
1.
We conclude that Paris established a prima facie case of FMLA retaliation. First, we
address whether Paris’s inquiry was a “protected activity” under the FMLA. Paris suggests that
the district court disregarded our precedent by ruling that his inquiry about FMLA rights was not
a “protected activity,” creating a “loophole that would allow employers to presumptively fire
employees for simply attempting to understand their rights.” CA6 R. 20, Appellant Br., Page ID
11; see Render, 53 F.4th at 920. We agree with Paris that the court erred in finding that his
inquiry about FMLA leave was not a “protected activity.”
Paris received Israel’s email alerting him to the “option of FMLA and/or sick leave” if he
qualified for coverage. DE 50-26, Emails with Israel, Page ID 1112. At this point, Paris sent
Itskovich an email stating the following: “[I] am contacting you in regards for [sic] the process
necessary to request FMLA leave for my medical condition. [P]lease let me know what forms
you will be needing filled out and what is required from my doctor.” DE 50-28, Decl. Irina
Itskovich, Page ID 1155; DE 50-29, Emails with Itskovich, Page ID 1159. Itskovich replied the
following that same day: “Please complete the attached form and send it back to me at your
earliest convenience.” DE 50-28, Decl. Irina Itskovich, Page ID 1155; DE 50-29, Emails with
Itskovich, Page ID 1158. Itskovich’s email included an FMLA request form with “questions
designed to obtain information about the reason an employee is requesting FMLA, whether the
leave will be continuous or intermittent, and the start and end date of the leave.” DE 50-28,
Decl. Irina Itskovich, Page ID 1155; DE 50-29, Emails with Itskovich, Page ID 1160–61. Paris
“never responded” to Itskovich’s email and “never returned the Request for FMLA form.” DE
50-28, Decl. Irina Itskovich, Page ID 1155.
As we have stated, an FMLA retaliation claim “arises when an employer takes an adverse
employment action against the employee for exercising or attempting to exercise a right
protected by the FMLA.” Milman, 58 F.4th at 866 (emphasis added). Subsection 105(a)(1)
renders it unlawful “for any employer to interfere with, restrain, or deny the exercise of or the

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attempt to exercise, any right provided[.]” 29 U.S.C. § 2615(a)(1). And subsection 105(a)(2)
renders it unlawful “for any employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful” by the relevant subchapter. Id. §
2615(a)(2). Some confusion exists as to whether a plaintiff may plead an FMLA retaliation
claim based on only one or either of these subsections, yet “[u]nder this statutory language, it
makes little sense to cabin solely to § 2615(a)(2) retaliation claims that are based on the exercise
or attempt to exercise FMLA rights.” See Milman, 58 F.4th at 867 (“Logically, an adverse
employment action in response to the exercise of (or the attempt to exercise) a statutory right—
retaliation for engaging in protected activity—is a form of interference or restraint on the ability
to exercise that statutory right. Constraining § 2615(a)(1) to wrongful denials of FMLA
entitlements only and making § 2615(a)(2) the only avenue for recourse against adverse
employment action would ignore the plain text of § 2615(a)(1).”).
Based on this understanding of subsection 105(a)(1), we have already decided that for the
FMLA to protect the “exercise or attempt to exercise” statutory rights, the term “protected
activity” under the statute must include an employee’s “first step” in requesting leave. Id. at 869
(citation modified). In Milman, we held that an employee’s “first step,” such as his “initial
request for leave,” is a “protected activity.” Id. We noted that, in some contexts, a plaintiff must
have established entitlement to bring an FMLA retaliation claim. Id. at 868. But in Milman, as
here, ultimate entitlement is not a “prerequisite to an FMLA retaliation claim” because the
plaintiff never took leave. See id. at 868. And here, it is logical not to require Paris to show
entitlement for his retaliation claim. To grant summary judgment on an FMLA retaliation claim
under these circumstances would allow an employer to fire an employee who made a protected
initial request for leave—even before the employer’s determination of whether the employee was
entitled to take leave. See McArdle v. Town of Dracut/Dracut Pub. Schs., 732 F.3d 29, 36 (1st
Cir. 2013) (“It would seem too, that firing an employee for asking would also frustrate the aims
of the Act even if the inquiring employee turns out to be ineligible. An ‘ask at your peril’
approach could deter employees, including eligible employees uncertain of the extent of their
rights, from taking the first step necessary to exercise their rights.”).

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We now face the related question of whether the statute protects an employee’s right to
request FMLA paperwork before having requested leave. Our reasoning in Milman proves
instructive. There, we addressed “whether the FMLA protects the right of an employee to
inquire about and request leave even if it turns out that she is not entitled to such leave.” See
Milman, 58 F.4th at 868 (emphasis added). Because the FMLA “requires employees to put their
employers on notice . . . by making a formal request to the employer,” the statute protects an
“employee’s initial request for leave[.]” Id. at 868–69 (emphasis in original). Indeed, “FMLA
rights and the statute’s purpose would be significantly diminished if employers could fire an
employee who simply took the required initial steps to access FMLA leave.” Id. at 869.
In Milman, though, we did not merely conclude that the FMLA protects an employee’s
right to “inquire about and request leave[.]” See id. at 868 (emphasis added). We also
anticipated some of the facts before us here. See id. at 869 (“Suppose that an employee,
intending to exercise her FMLA rights, meets with her employer and asks questions concerning
her FMLA rights, then is fired for doing so.”). FMLA protection is necessary “during the step
required to initiate the FMLA’s process” because, “[w]ithout protection, employees would be
discouraged from taking authorized initial steps—including preparing or formulating a request to
access FMLA benefits.” Id. This “first step . . . must fall within the scope of protected activity”
to give effect to the Act’s aim to protect the “exercise or attempt to exercise” FMLA rights. See
id. (citation modified); Ziccarelli v. Dart, 35 F.4th 1079, 1085–86 (7th Cir. 2022). Thus, an
initial step—such as a request for the paperwork necessary for an employee to request FMLA
leave—may constitute “protected activity.” See Milman, 58 F.4th at 869; see also 29 U.S.C. §
2613(a).
Paris stated in his email that he was “contacting” Itskovich, whom Israel had directed
Paris to email, regarding “the process necessary to request FMLA leave” for his “medical
condition.” DE 50-29, Emails with Itskovich, Page ID 1159. Further, Paris asked that Itskovich
“let [him] know what forms [she] will be needing filled out and what is required from [his]
doctor.” Id. Paris took “the step required to initiate the FMLA’s process” by requesting
paperwork, and this “first step . . . must fall within the scope of protected activity” for our law to
uphold the Act’s aim of protecting the “exercise or attempt to exercise” FMLA rights. See

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Milman, 58 F.4th at 869. Accordingly, we hold that Paris’s request for FMLA paperwork under
these circumstances was a “protected activity” under the FMLA. Id.
To hold otherwise would contravene the Act’s stated aim of protecting the “exercise of or
the attempt to exercise” FMLA rights. 29 U.S.C. § 2615(a)(1); see Milman, 58 F.4th at 867–69.
If we concluded that an initial inquiry for FMLA paperwork were not a “protected activity,” any
employer could avoid liability under either of the FMLA’s theories by employing one simple
tactic: Fire any employee immediately after a request for paperwork or information pertinent to
FMLA leave. If we so decided, an employer could eliminate all risk of liability for a wrongful
denial of a statutory entitlement by firing an employee shortly after the employee requested
FMLA paperwork, as the employee would be unable to establish entitlement without the required
paperwork. See 29 U.S.C. § 2613(a) (“An employer may require that a request for leave . . . be
supported by a certification issued by [a] health care provider . . . . The employee shall provide,
in a timely manner, a copy of such certification to the employer.”). An employer who did this
could also avoid liability for any wrongful retaliatory discharge, as the employee would be
unable to show that he “engaged in protected activity” if he requested but did not yet complete
and submit the required paperwork. See Milman, 58 F.4th at 867. At bottom, our law would fail
to effectuate the FMLA’s aim of protecting the “exercise of or attempt to exercise” FMLA rights
if an employer could evade liability as a matter of course by firing an employee the moment he
requested FMLA paperwork. See 29 U.S.C. § 2615(a)(1); Milman, 58 F.4th at 867–69.
We hold that Paris’s request for paperwork was a “protected activity,” so Paris satisfied
the first element of the prima facie case for FMLA retaliation. See Milman, 58 F.4th at 869.
And we need not speculate as to the full set of circumstances under which the FMLA would
protect an employee’s initial inquiry for FMLA-related paperwork or information. It is true that
Paris did not respond after Itskovich sent him the relevant paperwork. Yet our conclusion about
Paris’s request for paperwork relates only to the “protected activity” element of an FMLA
retaliation claim, so the question of how long an employee has to submit the paperwork he
requested and received does not affect this analysis. See id. at 867 (listing elements of the prima
facie case for retaliatory discharge); cf. 29 C.F.R. § 825.305(b) (specifying the timeframe within
which an employee “must provide the requested certification to the employer”). Of course, the

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length of the period between an employee’s “protected activity” and an employer’s “adverse
employment action” may prove relevant, but at the later fourth step of the inquiry for FMLA
retaliation. See Seeger, 681 F.3d at 283–84 (citation modified).
The district court thus erred by concluding that Paris’s inquiry was not a “protected
activity” under the FMLA. See DE 57, Op. & Order, Page ID 1431–33. To reach its conclusion,
the court stated that Paris “only requested information about the process of requesting FMLA
leave.” Id. at 1432–33. On this basis and because Paris did not provide “any notice . . . that he
intended to take FMLA leave due to anxiety,” the court decided that his request did not
constitute a “protected activity.” Id. at 1433.
That conclusion was incorrect. First, as we have explained, Paris’s request for
information regarding FMLA leave was protected as a “step required to initiate the FMLA’s
process” because the statute protects an employee’s “exercise or attempt to exercise” FMLA
rights. See Milman, 58 F.4th at 869. If we do not afford this step any protection, employees will
be “discouraged from . . . preparing or formulating a request to access FMLA benefits.” See id.
Second, the district court applied the wrong standard when it found that Paris’s activity was not
“protected” based on his failure to provide “notice . . . that he intended to take FMLA leave due
to anxiety.” See DE 57, Op. & Order, Page ID 1433. The “notice” requirement for an FMLA
interference claim requires that an employee provide an employer with enough information to be
able to determine whether he is entitled to leave based on criteria such as a “serious health
condition,” see Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999), but that
standard does not govern the “protected activity” element in a retaliation claim, see, e.g.,
Milman, 58 F.4th at 868–69. For an FMLA retaliation claim, a plaintiff must show that the
employer knew that he engaged in protected activity. See id. at 867.
Moreover, the district court cited Render for the proposition that an employee’s asking
for an FMLA request form does not “rise to the level of engaging in protected activity[.]” DE
57, Op. & Order, Page ID 1433. But Render did not hold that an employee must “properly
request FMLA leave” for his activity to be protected or that inquiring about FMLA rights or
paperwork is not protected. See 53 F.4th at 920. The district court also relied on one of our
unpublished opinions, Basch v. Knoll, Inc., 619 F. App’x 457, 461 (6th Cir. 2015), one of two

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cases cited in Render for the proposition that an employee engages in a “protected activity” when
the employee “gives sufficient notice of his intent to take FMLA leave.” See DE 57, Op. &
Order, Page ID 1433; Render, 53 F.4th at 920. But Basch contains no discussion of what
constitutes a “protected activity,” as it focuses primarily on causation. See 619 F. App’x at 459–
60. The other unpublished case cited in Render for that proposition, Festerman v. County of
Wayne, also does not meaningfully discuss the “protected activity” element. See 611 F. App’x
310, 319 (6th Cir. 2015) (noting only that “[t]here is no dispute that Festerman satisfied the first
element of the retaliation analysis.”). While the Basch and Festerman plaintiffs established a
“protected activity,” neither opinion furnishes any reasoning as to whether inquiring about leave
is not or should not be protected. See Basch, 619 F. App’x at 459–60; Festerman, 611 F. App’x
at 319. The district court therefore mistakenly concluded that no genuine issue of material fact
existed as to whether Paris engaged in a “protected activity” under the FMLA.
On appeal, MacAllister presses that concluding that Paris’s inquiry is “protected” would
mean that an employee could “request information about FMLA leave, go completely
unresponsive to an employer’s permissible requests for additional information for an indefinite
period . . . , and yet somehow claim FMLA retaliation[.]” CA6 R. 29, MacAllister’s Br., Page
ID 41. Yet it is incorrect that an employee who merely requests information will necessarily
establish FMLA retaliation. Indeed, an employee could still fail to satisfy the other three
elements of the prima facie case or fail to establish an FMLA violation at the burden-shifting
stage. Even if a plaintiff established a prima facie case for retaliation, a defendant could still
show that it had a “legitimate, nondiscriminatory reason” for taking an action adverse to the
plaintiff. See Render, 53 F.4th at 920 (quotation omitted).
The district court thus erred in determining that Paris’s request for FMLA paperwork was
not a “protected activity.” In doing so, the district court did not evaluate the remaining elements
of Paris’s FMLA retaliation claim on the basis that he failed to establish this element.
We conclude that Paris satisfied the remaining elements of the prima facie case for
FMLA retaliation. Paris satisfied the second element because MacAllister received and
responded to Paris’s inquiry, so MacAllister knew that Paris “engaged in protected activity”

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under the FMLA. See Milman, 58 F.4th at 867. As for the third element, MacAllister fired
Paris, so MacAllister took an adverse employment action against him. See id.
With respect to the fourth element, Paris established a “causal connection” between his
inquiry and MacAllister’s termination of his employment because he showed that MacAllister
terminated his employment in early January 2019 after his FMLA inquiry in late December
2018. See Bryson, 498 F.3d at 570–71. Our law recognizes that such close temporal proximity
between a protected activity and an adverse employment action can support an inference of
retaliation. See Seeger, 681 F.3d at 283–84 (collecting cases). We have even held that a three-
month interval between an employee’s protected activity and an employer’s termination suffices
to give rise to such an inference. Bryson, 498 F.3d at 571. After all, “the burden of proof at the
prima facie stage is minimal,” and an employer may still “present evidence of a legitimate, non-
discriminatory reason for terminating” an employee. Id. (citation modified). Paris therefore
established a prima facie case of FMLA retaliation.
2.
We nonetheless affirm the district court’s grant of summary judgment on Paris’s
retaliation claim because Paris cannot show that his termination was pretextual. Under the
McDonnell Douglas burden-shifting framework, MacAllister must “articulate a legitimate,
nondiscriminatory reason for [Paris’s] discharge” if Paris proves a prima facie case of FMLA
discrimination. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001).
If MacAllister “articulates such a reason,” the burden shifts back to Paris to show that
MacAllister’s “articulated reason is in reality a pretext to mask discrimination.” See id.
MacAllister satisfied its burden of showing that its reason for terminating Paris’s
employment was legitimate and nondiscriminatory. As an initial matter, MacAllister identified
Paris’s “long history of performance, attendance, and conduct[-related] issues,” and reiterated
that MacAllister introduced into evidence the “numerous disciplinary counselings and warnings”
that it had issued Paris for over two years prior to his termination. See DE 50, Def.’s Mot. for
Summ. Judgment, Page ID 420–21. Paris struggled to complete simple tasks, received numerous
attendance warnings for early departures, absences, and tardy appearances, and produced work

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No. 25-1726 Paris v. MacAllister Machinery Co., Inc., et al. Page 18
of inadequate quality. Even separately from Paris’s longer disciplinary history, Paris entered
into the LCA, under which any further violation would warrant termination. According to Israel,
MacAllister fired Paris after reviewing all relevant instances because the “violations were too
great” and Paris “failed to abide by” his commitments in the LCA. DE 50-16, Depo. Tr. Israel,
Page ID 829–30. We agree with MacAllister that a single violation of MacAllister’s policies
following Paris’s entry into the LCA would have constituted a valid, nondiscriminatory reason
for his termination. See Skrjanc, 272 F.3d at 315.
Paris then failed to carry the burden of showing that any of MacAllister’s reasons were
“in reality a pretext to mask discrimination.” See id. He failed to do so because he provided no
evidence that MacAllister’s termination was pretextual. See Keogh v. Concentra Health Servs.,
Inc., 752 F. App’x 316, 323–25 (6th Cir. 2018). And temporal proximity alone cannot support a
showing of pretext. Seeger, 681 F.3d at 285. There is no genuine issue of material fact as to
whether MacAllister’s termination of Paris’s employment was pretextual, and MacAllister was
entitled to judgment as a matter of law on Paris’s FMLA retaliation claim.
C.
The district court dismissed Paris’s LMRA claim against the Union for breaching the
duty of fair representation. The court dismissed Paris’s claim after deciding that his complaint
failed to plausibly allege that the Union did not grieve his demotion and that the Union’s refusal
to investigate or grieve his termination represented a breach of the duty.
On appeal, Paris claims that he “plausibly alleged a breach of the Union’s duty of fair
representation,” but he does not address whether MacAllister breached the CBA. See CA6 R.
20, Appellant Br., Page ID 11–12, 19–21. His argument addresses the district court’s analysis,
which dismissed Paris’s claim based only on his failure to plausibly allege that the Union
breached its duty. It was appropriate for the district court to examine only one element of Paris’s
claim, as the failure of one element means that the other “must necessarily fail with it.” White v.
Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990). A hybrid LMRA section 301 suit
“presents claims against the employer for breach of the CBA and against the union for breach of
the duty of fair representation.” Jones v. Gen. Motors Corp., 939 F.2d 380, 384 (6th Cir. 1991).

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To press a successful hybrid section 301 claim, a plaintiff must establish “(1) that the
employer breached the collective bargaining agreement and (2) that the union breached its duty
of fair representation.” Garris v. Int’l Union United Auto., Aerospace, & Agric. Implement
Workers of Am., 417 F.3d 590, 594 (6th Cir. 2005) (quotation omitted) (emphasis added). A
plaintiff cannot recover against either defendant unless he satisfies both elements. Bagsby v.
Lewis Bros., Inc. of Tenn., 820 F.2d 799, 801 (6th Cir. 1987) (“[Plaintiff] must show that the
Company breached the Agreement and that the Union breached its duty of fair representation.
Unless [plaintiff] demonstrates both violations, he can[]not succeed against either party.”
(emphasis in original) (internal citation omitted)). A union owes its members the “‘duty to
represent them adequately as well as honestly and in good faith.’” Black v. Ryder/P.I.E.
Nationwide, Inc., 15 F.3d 573, 584 (6th Cir. 1994) (quoting Air Lines Pilots Ass’n Int’l v.
O’Neill, 499 U.S. 65, 75 (1991)). To establish that a union breached the duty, a plaintiff must
show that the union’s actions or omissions in handling his grievance were either “arbitrary,
discriminatory, or in bad faith.” Id. at 584 (quotation omitted) (emphasis in original). A plaintiff
need make only one of these three showings to bring a successful section 301 claim. Id.
The district court properly determined that Paris failed to “allege enough facts to make it
plausible” that the Union was liable. See Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir.
2016). The court decided that Paris did not “adequately allege[] that he asked the Union to
grieve his demotion, it was required to do so, and it failed.” DE 33, Op. & Order Granting Mot.
to Dismiss, Page ID 287 (emphasis added). The court also concluded that Paris failed to
plausibly allege that the Union’s failure to investigate or grieve his termination was arbitrary,
discriminatory, or in bad faith. On appeal, Paris asserts that he plausibly alleged that both
aspects of the Union’s conduct were “arbitrary, discriminatory, and in bad faith.” CA6 R. 20,
Appellant Br., Page ID 19–21 (emphasis added). We must consider each of these elements to
determine whether the Union violated its duty to Paris. See Merritt v. Int’l Ass’n of Machinists
& Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010); Black, 15 F.3d at 584–85.
While Paris did not use the term “demotion” in his Amended Complaint, he gestured
briefly to the Union’s alleged failure to investigate his “pay-cut.” DE 25, Am. Compl., Page ID
151. Paris provided little description of what he now calls a demotion, and he was unsure

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regarding whether he grieved the demotion or only “thought he was in the process of grieving”
it. Id. It is not clear how the Union could have “failed to process the grievance” if Paris did not
request that it do so. See id. Because Paris failed to allege that he requested the Union to grieve
his demotion, he did not allege facts making it “plausible,” not “merely possible,” that the Union
is liable. See Agema, 826 F.3d at 331; Meritt, 613 F.3d at 619.
The district court noted these deficiencies and correctly concluded that Paris’s failure to
furnish “detail as to any request to grieve the demotion” was “fatal.” DE 33, Op. & Order
Granting Mot. to Dismiss, Page ID 285. In fact, the court’s analysis of Paris’s deficient pleading
was charitable and worked through inferences based on allegations scattered throughout his
complaint. Without the baseline allegations that Paris asked the Union “to grieve his demotion,
it was required to do so, and it failed,” we need not determine whether one of the Union’s alleged
omissions amounted to arbitrary, discriminatory, or bad-faith conduct and marked a breach of the
duty. See id. at 287.
Paris also insufficiently alleged that the Union breached its duty by coercing him into
signing the LCA and later failing to grieve or investigate his termination. To establish bad faith,
a plaintiff must allege that the defendant acted with “an improper intent, purpose, or motive . . .
encompassing fraud, dishonesty, and other intentionally misleading conduct.” Merritt, 613 F.3d
at 619 (citation modified). Paris did not support his bare allegations of force and coercion with
any detail that would establish a plausible likelihood that the Union’s conduct with respect to the
LCA was arbitrary, discriminatory, or in bad faith. Paris alleged that one of the Union’s agents
believed that he could get the “charges” against Paris “dropped,” so the Union’s conduct in
forcing and coercing Paris to sign the LCA was “at best perfunctory, and at worst, bad faith.”
DE 25, Am. Compl., Page ID 150. Without explaining how the Union “forced and coerced” him
to sign the LCA, Paris repeated the allegations and stated that the Union did not fulfill “any
obligations to proceed through the grievance process” to which he was entitled. Id.
Before the district court, Paris briefly expanded on this alleged coercion. He stated that
the Union’s agents “talked him into . . . receiving a pay cut.” DE 29, Pl.’s Response to Def.’s
Mot. to Dismiss, Page ID 231. Paris, however, cannot cure the deficiencies in his complaint
through statements in briefing. See Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th

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No. 25-1726 Paris v. MacAllister Machinery Co., Inc., et al. Page 21
Cir. 2020). Yet even if we considered this thin description of being talked into a pay cut, its lack
of detail would bar a showing that the Union acted with an improper intent, purpose, or motive in
its communications to Paris regarding the LCA. Paris failed to sufficiently allege that the Union
acted in bad faith. See Merritt, 613 F.3d at 619–20.
Moreover, Paris waived any argument on appeal that the Union’s conduct with respect to
the LCA was arbitrary or discriminatory. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997). On appeal, he failed to sufficiently argue that he pled the Union’s conduct fell “‘so
far outside a wide range of reasonableness that it [was] wholly irrational’” or was “‘unrelated to
legitimate union objectives.’” See Merritt, 613 F.3d at 619 (quoting O’Neill, 499 U.S. at 78, and
Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274,
301 (1971)).
The district court also concluded that Paris failed to show that the Union breached its
duty by failing to grieve or investigate his termination, but Paris devoted insufficient attention to
this issue and thus waived any argument regarding it on appeal. See McPherson, 125 F.3d at
995–96. For the same reason, Paris waived any argument regarding the court’s dismissal of his
ELCRA claims. See id. The district court therefore properly dismissed Paris’s LMRA claims
against MacAllister and the Union.
V.
For the foregoing reasons, we affirm the district court’s decisions.

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