Sommers Schwartz senior shareholder Tad Roumayah, assisted by associate Jenna Sheena, secured a victory for a young mother in a case arising under the Family & Medical Leave Act (FMLA) and Families First Coronavirus Response Act (FFCRA).

The plaintiff, a wife and mother of two young daughters, worked as a regional manager for the defendant, a real estate company, overseeing a portfolio of multifamily apartment communities. The plaintiff was an exemplary employee, as evidenced by a February 27, 2020, job performance review where she received a glowing evaluation from her manager.

On March 10, 2020, as the COVID-19 pandemic increasingly threatened the people of Michigan, Governor Gretchen Whitmer declared a state of emergency. Two days later, she ordered all K-12 school buildings in Michigan to close, effective March 16. On April 1, the FFCRA became law and included a new provision—the Emergency Family and Medical Leave Expansion Act (EFMLEA)—which allowed an eligible worker to take up to 12 weeks of unpaid, job-protected FMLA leave to care for a minor child if their school or place of care was closed due to a public health emergency.

On April 6, the plaintiff told the defendant’s owner that she was contemplating taking legally-protected EFMLEA leave to tend to her daughters, then ages three and ten, which she was entitled to do by law. She told him she anticipated the leave would be “just a couple of weeks.” Until then, the plaintiff and her husband utilized two babysitters, but the sitters could no longer assist in the midst of the pandemic.

The owner discouraged the plaintiff from taking her legally-protected leave under the EFMLEA. Instead, he directed her to tell her subordinates that “she would not be available for a few hours in the mornings” while she tended to her daughters, an unworkable solution given the plaintiff’s need to care for her children the entire day. Inexplicably, the owner likened the plaintiff’s children to pets, stating that he “has two dogs,” and while working, he “takes the dogs for walks,” and when he is done with the dogs, he “comes back in to work.”

Despite the owner’s attempts to discourage her, the plaintiff formally requested leave under the EFMLEA on April 7, 2020. The company approved the request in an email from its HR manager. However, the company’s HR manager then falsely claimed that because the plaintiff was a “key employee” under the FMLA, reinstating her into her job at the end of her leave might not be possible.

Ten days into her legally-protected FMLA leave, the plaintiff notified the defendant that her childcare situation had stabilized and that she could return to work full-time on April 20, 2020. In response, the defendant informed the plaintiff that the company had already filled her role, could not restore her to her regional manager position, and terminated her employment, falsely claiming that she was exempt from job restoration under the FMLA and EFMLEA due to the “key employee” exception.

Believing that the company violated her rights under the FMLA, the plaintiff’s counsel sent a demand letter to the company seeking to discuss the matter and find a solution that would avoid a potential lawsuit. In response, the defendant filed a frivolous and retaliatory lawsuit against the plaintiff, alleging that the plaintiff engaged in “fraud.” The plaintiff counterclaimed, alleging wrongful termination and violation of her legally-protected family leave rights under the FMLA.

Upon being questioned by Mr. Roumayah at deposition, the plaintiff’s manager admitted that the company filed its fraud case against the plaintiff to seek “a dismissal of [the plaintiff’s] lawsuit against us,” thus confessing to the unlawful retaliatory motive behind the action. On March 4, 2020, the Wayne County Circuit Court granted the plaintiff’s motion for summary disposition on her FMLA claim and dismissed the defendant’s frivolous “fraud” claim. The court also rejected the defendant’s “key employee” defense, thus leaving the amount of damages to be awarded to the plaintiff as the only remaining issue in the case.