                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0404n.06

                                           No. 17-2475

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
 MARSHALL BROWN,                                         )                       Aug 10, 2018
                                                         )                   DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                             )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE EASTERN
 SQUARE DEAL BUILDING SUPPLY,                            )
                                                                DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellee.                              )
                                                         )



       Before: WHITE, DONALD, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Marshall Brown complains that his employer, Square Deal

Building Supply, interfered with his rights under the Family and Medical Leave Act and the

Michigan Worker’s Disability Compensation Act by firing him after he requested medical leave.

Finding that Square Deal did no such thing, the district court granted Square Deal’s motion for

summary judgment. We AFFIRM.

                                                I.

       Brown began working for Square Deal in 1996. On May 15, 2014, while working as

Warehouse Manager, Brown fell from a truck and sustained injuries. Due to these injuries, Brown

was on medical leave for three months. After the leave, Brown returned to work as Warehouse

Manager until December 2016, when he provided Square Deal with a form from his doctor

indicating that he was permanently disabled. His doctor noted that his work needed to be restricted
No. 17-2475
Brown v. Square Deal Building Supply

to no more than four to six hours of work per day; no lifting over twenty pounds; limited walking;

and no climbing, bending, or squatting.

       These limitations meant that Brown could not work the necessary forty-hour work week

required of a Warehouse Manager or perform some aspects of the position, including assisting in

loading shipments. Yet Brown remained in the position of Warehouse Manager until around

March 17, 2017. On March 17, Brown met with Square Deal General Manager Harold Brenizer.

According to Brenizer, the two discussed Brown’s inability to handle the responsibilities of the

Warehouse Manager position. Brown was removed from his full-time, salaried position as

Warehouse Manager and became an hourly, part-time employee, effective March 20, 2017.

       Four days after this discussion, Brown visited a doctor. The next day, March 22, he gave

Square Deal a new Disability/Work Status Form. The form stated that Brown was to be off work

completely for eight weeks, from March 21 to May 22. Brown did not return to work and instead

began receiving workers’ compensation benefits, which he continues to receive. Brown still has

not been medically cleared to return to work. The parties dispute whether Square Deal fired Brown

on March 22, or whether Brown remained an employee who went on leave.

       Brown sued Square Deal, alleging that the company violated his rights under the Family

and Medical Leave Act (FMLA) and the Michigan Worker’s Disability Compensation Act

(MWDCA), by terminating his employment once he sought medical leave on March 22, 2017.1

Square Deal moved to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment

under Rule 56. The district court granted summary judgment in favor of Square Deal, finding as




1
  Brown also raised a claim under the Michigan Persons with Disabilities Civil Rights Act but has
since abandoned that claim.
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Brown v. Square Deal Building Supply

a matter of law that Square Deal had never terminated Brown’s employment and that Brown could

not, therefore, establish liability under either the FMLA or the MWDCA.

                                                  II.

       Because his alleged termination is the only “adverse employment action” Brown cited

before the district court,2 the critical question is whether there was a genuine issue of material fact

as to whether Square Deal fired Brown. Without an “adverse employment action,” both of

Brown’s claims fail. The district court found no firing as a matter of law. Brown argues that this

was error.

       Family and Medical Leave Act. “The FMLA enables employees covered by the Act to take

up to twelve weeks of leave per year for various purposes specified in the statute, including the

employee’s own ‘serious health condition that makes the employee unable to perform the functions

of the position of such employee.’” Bryson v. Regis Corp., 498 F.3d 561, 569 (6th Cir. 2007)

(quoting 29 U.S.C. § 2612(a)(1)(D)). Once the leave period ends, the employee “must be

reinstated to [his] position or to a position equivalent in pay, benefits, and other terms and


2
  For the first time on appeal, Brown contends that even if he were not fired, he was still subjected
to adverse employment actions by Square Deal that either (1) discouraged him from exercising his
FMLA rights or (2) were taken in retaliation for attempting to exercise his FMLA rights.
According to Brown’s brief on appeal, Square Deal stripped him of his Warehouse Manager
position and pay, made him a part-time employee, and discontinued his pay and health insurance
benefits “in the context of his request for leave.” By failing to present this argument to the district
court, Brown has forfeited “the right to have the argument addressed on appeal.” Armstrong v.
City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006). But Brown’s argument also fails on the
merits. Square Deal removed Brown from the Warehouse Manager position, and thereby made
him a part-time employee, several days before Brown visited the doctor and subsequently asked
for medical leave. The complained-of actions came prior to Square Deal learning that Brown had
requested medical leave and, therefore, do not show that Square Deal interfered with Brown’s
exercise of his rights, or retaliated against him for seeking medical leave, under the FMLA. See
Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (noting that an element of an
interference claim is that the employer must have notice of the employee’s intention to take leave);
id. at 508 (noting that “retaliation claims impose liability on employers that act against employees
specifically because those employees invoked their FMLA rights” (citation omitted)).
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Brown v. Square Deal Building Supply

conditions of employment.” Id. at 569–70 (citing 29 U.S.C. § 2614(a)(1)). There are two theories

of liability under the FMLA: (1) the entitlement or interference theory, and (2) the retaliation or

discrimination theory.3 Id. at 570.

       Brown proceeds under both theories. Brown explains that both are premised on his

allegation that Square Deal terminated his employment in response to his leave request. See

Appellant Br. at 22 (contending that he presented evidence that Square Deal “terminated him

immediately after he requested FMLA leave and benefits,” which “discourage[d] [Brown] from

using his FMLA leave and . . . thereby interfered with the exercise of his FMLA rights”); id. at

25–26 (contending that Square Deal retaliated against him for exercising his FMLA rights by

terminating his employment).

       But viewing the evidence in the light most favorable to Brown, as we must when reviewing

a district court’s decision on a motion for summary judgment, see Logan v. Denny’s Inc., 259 F.3d

558, 566 (6th Cir. 2001), we cannot say that the district court erred by concluding that no genuine

issues of material fact remained as to whether Square Deal terminated Brown’s employment. As

the district court found, the evidence indicates that Brown remains employed by Square Deal, is

on leave, and is receiving workers’ compensation benefits while on leave. Both Brenizer and

Debbie Sikora, the Human Resources Director for Square Deal, attested to this in affidavits



3
 We have described those theories as follows:
       The “entitlement” or “interference” theory arises from [29 U.S.C.] §§ 2615(a)(1)
       and 2614(a)(1), which make it unlawful for employers to interfere with or deny an
       employee’s exercise of [his] FMLA rights (§ 2615(a)(1)), and which require the
       employer to restore the employee to the same or an equivalent position upon the
       employee’s return (§ 2614(a)(1)). . . . The “retaliation” or “discrimination” theory,
       on the other hand, arises from [29 U.S.C.] § 2615(a)(2), which prohibits an
       employer from discharging or discriminating against an employee for “opposing
       any practice made unlawful by” the Act.
Bryson, 498 F.3d at 570 (quoting 29 U.S.C. § 2615(a)(2)).
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No. 17-2475
Brown v. Square Deal Building Supply

provided to the district court. Moreover, in a signed application for mediation or a hearing before

the Michigan Workers’ Compensation Agency dated July 17, 2017, nearly four months after he

requested medical leave from Square Deal, Brown listed Square Deal as his employer and listed

the dates of his employment with Square Deal as “4/1992” to “present.”

       Likewise, the communications between Brown and Sikora in late March 2017 indicate that

Square Deal never fired Brown. On March 27, 2017, Brown contacted Sikora asking “about some

details about my 401k, and health insurance, while I am off for the 8 weeks.” (Emphasis added).

Brown also queried whether his paycheck would now come from the company that paid workers’

compensation benefits. Sikora responded, stating that she sent Brown’s disability form to the

company’s insurer, who would be paying Brown’s workers’ compensation benefits going forward.

Although Sikora indicated that Brown’s last payroll check would arrive at the end of March, this

did not mean that Brown’s employment was terminated; rather, from that point on, Brown’s wages

would be “paid thru [his] worker’s compensation claim.” Moreover, Sikora explained that

Brown’s transitioning from being a full-time worker to a part-time worker as of March 20, 2017,

caused a triggering event for health-insurance purposes. Notably, the triggering event was the

reduction to part-time employment, not a termination of employment altogether. And, in a follow-

up email, Sikora forwarded a message from the insurance company that would be paying

Brown’s workers’ compensation benefits, which stated that “[a] check was issued yesterday for

the 3/21-3/28 and will be issued weekly until he returns back to work or until we receive an

updated work status.” (Emphasis added). The record shows that Brown has not been cleared to

return to work and that he continues to receive workers’ compensation benefits.

       In arguing that Square Deal fired him once he told Square Deal he was going on leave,

Brown points primarily to an email sent by Square Deal’s Vice President of Sales and Marketing,


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Brown v. Square Deal Building Supply

Larry Ranke, to the staff, on March 22, 2017. Ranke stated: “After more than 20 years of service

to Square Deal, Marshall Brown has left his position as Warehouse Manager at our Sterling

Heights location. Marshall takes his leave due to medical complications. . . . Of course, we all

wish Marshall the best in his next stage of life.” The email went on to identify the employee who

would replace Brown as Warehouse Manager.

       At most, when viewed in a light most favorable to Brown, this email indicates that Brown

was removed from the position of Warehouse Manager. It does not state that Brown had been

fired, or that he no longer worked for the company in any capacity. In fact, it is consistent with

the narrative described above—that shortly before providing notice to Square Deal that he had to

go on medical leave, Brown left the Warehouse Manager position to become a part-time employee

because he was no longer able to fulfill the physical duties of Warehouse Manager. It does not,

contrary to Brown’s assertion, create a genuine issue of material fact as to whether Square Deal

terminated Brown’s employment, in light of the other evidence showing that Brown remains an

employee of the company and is on leave receiving workers’ compensation benefits.

       Brown has not raised a genuine issue of material fact regarding whether Square Deal

terminated his employment in response to his request for medical leave. Brown has, therefore,

failed to show that the district court erred by granting summary judgment in favor of Square Deal

on his FMLA claims.

       Michigan Worker’s Disability Compensation Act. Brown’s claim under the MWDCA fails

for the same reason. The MWDCA provides that an employer “shall not discharge an employee

or in any manner discriminate against an employee . . . because of the exercise by the employee

on behalf of himself or herself or others of a right afforded by this act.” Mich. Comp. Laws

§ 418.301(13). To establish a claim of retaliation under the MWDCA, Brown had to show, among


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Brown v. Square Deal Building Supply

other things, that Square Deal took an adverse employment action against him. See Cuddington v.

United Health Servs., Inc., 826 N.W.2d 519, 525 (Mich. Ct. App. 2012). According to Brown,

that adverse employment action was the termination of his employment. See Appellant Br. at 26

(stating that “[t]he lower court committed reversible error by finding as fact that Plaintiff was not

terminated and did not suffer an adverse employment action in support of his WCDA retaliation

claim”).   But, as discussed above, Brown has not shown that Square Deal terminated his

employment with the company. The district court did not err by granting summary judgment in

favor of Square Deal on Brown’s MWDCA claim.

                                               ***

       For these reasons, we AFFIRM the judgment of the district court in favor of Square Deal.




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