Family & Medical Leave Act (FMLA); Interference claim; 29 USC § 2615(a)(1); Whether plaintiff established that he suffered from a “serious health condition”; § 2611(11); Retaliation claim; § 2615(a)(2); Prima facie case; “Protected activity”; “Pretext”; The McDonnell Douglas Corp v Green burden-shifting framework; Labor Management Relations Act (LMRA) claims; Alleged union breach of the duty of fair representation; Insufficient allegations; Waiver

[This appeal was from the ED-MI.] The court held that while the district court erred by ruling that plaintiff-Paris failed to make a prima facie case of FMLA retaliation, he could not show that his termination was pretextual. His FMLA interference claim failed because he did not establish a “serious health condition.” And his LMRA claims were properly dismissed because he failed to plausibly allege that defendant-Union “violated the duty of fair representation and” he waived several arguments. During his employment at defendant-MacAllister, Paris received several negative performance reviews, some involving his productivity, and others based on tardiness, early departures, and absences. He accrued disciplinary points and signed a “Last Chance Agreement” (LCA). His job position was changed from “Field Technician” to “Tech I,” which came with a salary deduction. After an incident with another employee, Paris requested time off for depression. He asked for and was given an FMLA application, but never returned it. He admitted that he never returned anything from a health care provider. Weeks later, he was terminated, with the Union stating it was unable to file a grievance for him based on the LCA. Paris then filed this suit. The district court dismissed his LMRA claims against MacAllister and the Union and later granted MacAllister summary judgment on the FMLA claims. On appeal, the court first held that the district court did not err by granting summary judgment on his FMLA interference claim because he failed to establish that he suffered from a “serious health condition.” There was no dispute that he “did not receive treatment or counseling for ‘any mental, psychiatric, psychological, or emotional issues[.]’” As to his FMLA retaliation claim, the court disagreed with the district court’s ruling that he did not establish his prima facie case. It held that Paris’s request for FMLA paperwork constituted engaging in a “protected activity” under the FMLA. But the court affirmed summary judgment for MacAllister because Paris could not show under the McDonnell Douglas burden-shifting framework “that his termination was pretextual.” Affirmed.