Plant v. Morton Intl Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0165P (6th Cir.)

File Name: 00a0165p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



PHILIP R. PLANT,



Plaintiff-Appellant,





No. 99-3445

v.



>

MORTON INTERNATIONAL, 



Defendant-Appellee. 

INC.,



1

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 97-03234—Donald C. Nugent, District Judge.

Argued: February 4, 2000

Decided and Filed: May 12, 2000

Before: MERRITT and* MOORE, Circuit Judges;

HEYBURN, District Judge.

*

The Honorable John G. Heyburn II, United States District Judge for

the Western District of Kentucky, sitting by designation.

1

2 Plant v. Morton Int’l, Inc. No. 99-3445

_________________

COUNSEL

ARGUED: Charles A. Kennedy, KENNEDY,

CICCONETTI & KNOWLTON, Wooster, Ohio, for

Appellant. Timothy L. Zix, BATTLE & MILLER, Cleveland,

Ohio, for Appellee. ON BRIEF: Charles A. Kennedy,

KENNEDY, CICCONETTI & KNOWLTON, Wooster, Ohio,

for Appellant. Timothy L. Zix, Colleen P. Battle, BATTLE

& MILLER, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Philip Plant

appeals the district court’s grant of summary judgment to his

former employer Morton International, Inc. (“Morton”) on his

Family and Medical Leave Act (FMLA), Americans with

Disabilities Act (ADA), and state-law discrimination and

wrongful termination claims. The district court found that,

because Plant could not have returned to work within the

twelve weeks allotted by the FMLA, he could not make out a

successful claim under that statute. Concluding that Morton

failed to give sufficient notice to Plant that his FMLA leave

time had begun to run, we disagree with the district court and

hold that Plant might have been entitled to an additional

twelve weeks of leave under the FMLA. However, we agree

with the district court that Plant has come forward with

insufficient evidence to allow a reasonable jury to conclude

that he was disabled within the meaning of the relevant

statutes during the time period in question, and therefore that

Morton was entitled to summary judgment on the ADA and

state-law claims. For these reasons, we AFFIRM in part and

REVERSE in part the judgment of the district court, and we

REMAND for further proceedings.

No. 99-3445 Plant v. Morton Int’l, Inc. 3

I. BACKGROUND

Plaintiff-appellant Philip R. Plant began working for

defendant-appellee Morton International, Inc. as an applied

color systems operator in the Orrville, Ohio plant in 1989. He

was an hourly employee whose duties mainly involved

generating paint color matches. In February of 1995, Plant

was promoted to the position of intermix coordinator, which

was a salaried position involving additional responsibilities

such as research and development and customer service,

including travel to remote customer sites. That same month,

Plant was involved in a motor vehicle accident while working

at a site in North Carolina. Plant was taken to a local

hospital, diagnosed with contusions and strain, and released

the same day. His diagnosis has never changed.

Plant followed up with treatment from Dr. Owen W. Logee,

M.D., of Wooster, Ohio. Except for being called in to work

sporadically when he was especially needed, Plant was absent

from work until September of 1995, when Dr. Logee released

him to return with the restriction that he should work only

four-hour days and avoid lifting more than fifteen pounds and

bending or stooping repeatedly. Plant was eventually released

to work six-hour days and then eight-hour days. During his

entire absence from work, Plant continued to receive his full

salary.

To accommodate Plant’s medical condition, Morton

assigned him to data entry duties upon his return. Plant

claimed that he was no longer able to drive to customer sites,

as he had previously done as intermix coordinator, due to the

pain medication he had to take; he did, however, maintain

some phone contact with customers. Furthermore, Plant

could not fully perform the duties of his previous position as

intermix coordinator without working eight-hour days.

Eventually, Plant began to find that his back condition was

aggravated by sitting for long periods at his data entry job.

Shortly thereafter, Plant was switched to the position of lab

technician, which required mostly standing, with the

possibility of sitting to take breaks. The job also required

4 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 17

some bending, walking, occasional light lifting and stair 310 syllabus para. 3. However, the court emphasized that its

climbing. Plant does not claim that these duties were outside reasons for so holding depended on its understanding of the

his work restrictions, but he states that he was made to feel legislature’s intent in enacting the whistleblower statute; the

uncomfortable when taking breaks or asking for help from his court did not claim to generalize to other public policies or

co-workers, which he occasionally needed to do. For other statutes. See id. at 322-23. Generally, in order to

example, he asserts that he was constantly “scrutinized” while succeed on a wrongful discharge claim, the plaintiff must

taking breaks and that one of the supervisors, Dave Black, show only that a “clear public policy existed and was

told Plant that the president of Morton did not want him manifested in a state or federal constitution, statute or

sitting down so much or taking his breaks in the front office. administrative regulation, or in the common law”; that

Plant also states that, although he was told he could ask his “dismissing employees under circumstances like those

co-workers to help him with carrying paint samples, they involved in the plaintiff’s dismissal would jeopardize the

sometimes failed to comply with his requests, and he was public policy”; that “[t]he plaintiff’s dismissal was motivated

consequently told to carry them himself if he could. Finally, by conduct related to the public policy”; and that “[t]he

Plant notes one incident in which Dave Black allegedly employer lacked overriding legitimate business justification

expressed the opinion that Plant was “milking the system.” for the dismissal.” Id. at 321 (quoting Painter v. Graley, 639

J.A. at 395 (Plant Dep.). Black denies ever making such a N.E.2d 51, 57 n.8 (Ohio 1994)).

comment.

Nonetheless, the district court reached the correct

On April 26, 1996, Plant aggravated his back and leg conclusion with respect to Plant’s wrongful discharge claim.

injuries while carrying paint samples up a flight of stairs at As we have noted, Plant has not come forward with sufficient

work. At Dr. Logee’s direction, Plant took another leave of evidence to show that he qualifies as disabled within the

absence from work. As in the past, Plant did not fill out any meaning of § 4112.02 or the ADA. Although Plant is not

forms or follow any other special procedures to request that required to prove all the elements of an ADA claim or a

leave of absence, and he continued to receive his full salary. § 4112.02 claim in order to succeed on a claim for wrongful

On June 7, 1996, while still on a leave of absence for his discharge in violation of public policy, we believe that unless

medical problems, Plant was terminated. He claims that he Plant can show that he is a member of the class of people who

was told that the reason for his termination was that Morton are the intended beneficiaries of those statutes, he cannot

needed someone who could be present more than he could. show that “dismissing employees under circumstances like

He claims that he was never told of any problems concerning those involved in [Plant’s] dismissal would jeopardize the

his performance at that meeting and only learned of his public policy” embodied in those statutes. Therefore, we

alleged poor performance when he attempted to apply for affirm the district court’s grant of summary judgment to

unemployment benefits. Morton on the wrongful discharge claim.

Morton, by contrast, claims that Plant was terminated for no III. CONCLUSION

other reason than his poor performance and that he was never

told otherwise. In particular, Morton points to Plant’s alleged For the foregoing reasons, we AFFIRM in part and

inappropriate behavior with some employees of a customer, REVERSE in part the district court’s grant of summary

Springs Window Fashions (“Springs”). David Mead, an judgment to Morton, and we REMAND for further

account manager/sales representative from Morton, described proceedings consistent with this opinion.

one incident in which Plant engaged in a heated discussion

16 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 5

appropriate to look to federal law when interpreting analogous with an employee on the floor of the Springs factory.

law under R.C. Chapter 4412.”). But cf. Wooten v. City of According to Mead’s affidavit, Plant later explained “that he

Columbus, 632 N.E.2d 605, 611 (Ohio Ct. App. 1993) had a friendly relationship with the employee’s sister, but that

(stating that the Ohio handicap discrimination law is “at least she believed he was leading her sister on because he was

as broad, if not broader, in scope than” the ADA (emphasis married.” J.A. at 82 (Mead Aff.). Mead states that Plant then

added)). Furthermore, the parties have pointed to no asked him to drive to a local department store, where they met

differences between Ohio case law and federal case law that the sister of the Springs employee. Plant admits to these

would be relevant to this case. Therefore, we hold that Plant events, which occurred in March of 1995, while Plant was

is not handicapped within the meaning of Ohio Revised Code still on a leave of absence but sporadically working, but he

§ 4112 for the same reasons that we held him not to be claims that the encounter at the department store was

disabled within the meaning of the ADA. See also Maloney coincidental. Mead also reports having received complaints

v. Barberton Citizens Hosp., 672 N.E.2d 223, 225 (Ohio Ct. about Plant from Lloyd Nugent, the quality control manager

App. 1996) (stating that the plaintiff’s “transitory” back at Springs, both about Plant’s socializing with Springs

injury, “which caused her pain and inconvenience for a employees and about his technical capabilities. Subsequently,

definite period of time, but which had no adverse residual in May of 1996, Nugent complained again to Mead, telling

effects,” does not constitute a “handicap” under § 4112). him that Plant was calling Springs employees during business

hours and suggesting that Morton’s relationship with Springs

E. The Wrongful Discharge Claim was jeopardized by this behavior. Plant was terminated

several days after this last complaint. Plant denies that he

Finally, Plant argues that Morton’s actions constitute called any Springs employees during business hours and

wrongful discharge in violation of public policy under Ohio asserts that, although Mead had briefly advised him not to

law. See Greeley v. Miami Valley Maintenance Contractors, mix his personal life with his business, he was unaware of any

Inc., 551 N.E.2d 981, 981-82 syllabus para. 2 (Ohio 1990). problems that Springs had with him. Black admitted that he

This claim is apparently dependent upon Plant’s § 4112.02 did not recall having a meeting with Plant about that incident

claim, since he points to § 4112.02 as embodying the public and that he was unaware of anyone within the company

policy that was violated by his discharge. The district court having a conversation with Plant about it.

found that in order to succeed on a claim for wrongful

discharge in violation of the policy embodied in § 4112.02, Morton also points to two negative performance appraisals

Plant must be able to meet the requirements for showing a of Plant written by Plant’s immediate supervisor, Bill Jones.

violation of § 4112.02. Although those reviews are not dated, an affidavit by Human

Resources Representative Eileen Christiansen, as well as

We do not believe that Plant was required to show all the Black’s testimony, suggests that they were completed in 1996.

elements of a violation of § 4112.02 in order to succeed on a One review described Plant as “Below Expectations” overall

claim for wrongful termination in violation of public policy. and the other as “Unacceptable.” J.A. at 102, 105

In Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio), (Performance Appraisals). Both were accompanied by

cert. denied, 522 U.S. 1008 (1997), the Supreme Court of summaries signed by Bill Jones referring to Plant’s “lack of

Ohio held that the plaintiff’s claim for wrongful discharge in knowledge in colorant data base systems” and his

violation of the state whistleblower statute would succeed “inappropriate behavior,” among other things, and

only so long as he could show that he had fully complied with recommending his termination. J.A. at 104, 107. Black

the requirements of the whistleblower statute itself, see id. at admitted that he believed that the performance reviews were

6 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 15

never shared with Plant, however. Jones also wrote a letter to of Plant’s medical restrictions and modified Plant’s

the Human Resources department immediately after the responsibilities based on them.

second Springs incident, which described Plant’s poor

performance in very similar terms. However, Jones, who was Because we hold that Plant was not disabled within the

later terminated as well, wrote a letter subsequent to his meaning of the ADA and affirm the district court on this

termination, stating that he impugned Plant’s performance basis, we do not reach the questions whether Plant was

largely under pressure from his superiors and out of fear for “otherwise qualified” for the position of intermix coordinator

his own employment. Finally, Morton points to memoranda and whether Morton has put forth a legitimate, non-pretextual

written by Black in the fall of 1995 describing several reason for terminating Plant.

problems with Plant’s behavior, such as being absent from

work without notifying anyone and personal use of the D. The Ohio Revised Code § 4112.02 Claim

company phones and fax machines.

In order to establish unlawful discrimination on the basis of

After receiving a “Right to Sue” notice from the Ohio Civil disability in violation of Ohio Revised Code § 4112.02(A),3

Rights Commission and the EEOC, Plant filed suit against Plant must show 1) that he is handicapped; 2) that Morton

Morton in state court, alleging discrimination in employment took adverse action against him because of his handicap; and

on the basis of his disability in violation of the FMLA, 29 3) that he is capable of performing the essential functions of

U.S.C. § 2601 et seq., the ADA, 42 U.S.C. § 12101 et seq., the job in question. See Hazlett v. Martin Chevrolet, Inc., 496

Ohio Revised Code § 4112.02, and the state wrongful N.E.2d 478, 480 (Ohio 1986). The district court granted

discharge laws. Morton removed the case to the federal summary judgment for Morton on Plant’s § 4112.02 claim,

district court for the Northern District of Ohio. Morton finding that it could apply the same analysis to that state law

moved for summary judgment, which was granted as to all of claim as it had applied to the ADA claim.

Plant’s claims. This timely appeal followed.

Ohio case law appears to support the district court’s

II. ANALYSIS decision. See, e.g., City of Columbus Civil Serv. Comm’n v.

McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998) (noting that

A. Summary Judgment Standard the ADA is similar to the Ohio handicap discrimination law

and looking to federal law in order to determine whether

This court reviews a district court’s grant of summary nearsightedness is a disability under § 4112); Greater

judgment de novo. See EEOC v. Northwest Airlines, Inc., Cleveland Reg’l Transit Auth. v. Ohio Civil Rights Comm’n,

188 F.3d 695, 701 (6th Cir. 1999). Summary judgment 567 N.E.2d 1325, 1328 (Ohio Ct. App. 1989) (“It is

should be granted only if there is no genuine issue of material

fact and the moving party is entitled to a judgment as a matter

of law. See FED. R. CIV. P. 56(c); Johnson v. United States 3

Section 4112.02 provides:

Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving It shall be an unlawful discriminatory practice:

party bears the initial burden of showing the absence of a (A) For any employer, because of the race, color, religion, sex,

genuine issue of material fact. See Celotex Corp. v. Catrett, national origin, handicap, age, or ancestry of any person, to

477 U.S. 317, 323 (1986). The burden then shifts to the discharge without just cause, to refuse to hire, or otherwise to

nonmoving party to come forward with evidence showing that discriminate against that person with respect to hire, tenure,

terms, conditions, or privileges of employment, or any matter

there is a genuine issue for trial. See Anderson v. Liberty directly or indirectly related to employment.

Lobby, Inc., 477 U.S. 242, 256 (1986). There is no genuine OHIO REV. CODE § 4112.02.

14 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 7

his termination on June 6, 1996. See Matsushita Elec. Indus. issue for trial unless the nonmoving party has produced

Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) enough evidence for a jury to be able to return a verdict for

(stating that a court may consider the plausibility of a moving that party. See id. at 249. “The evidence of the non-movant

party’s evidence in determining whether that party has met its is to be believed, and all justifiable inferences are to be drawn

burden for summary judgment); Penny v. United Parcel Serv., in his favor.” Id. at 255.

128 F.3d 408, 416 (6th Cir. 1997). Furthermore, temporary

physical conditions like Plant’s do not generally constitute B. The FMLA Claim

substantial impairments. See Interpretive Guidance, 29

C.F.R. §1630.2(j) App.; Roush v. Weastec, Inc., 96 F.3d 840, The FMLA provides that an eligible employee is entitled to

844 (6th Cir. 1996). Although the evidence did not clearly twelve weeks of leave from work for a “serious health

indicate that Plant’s condition was temporary, Plant was condition” that renders the employee incapable of fulfilling

unable to come forward with any evidence that it was that employee’s job responsibilities. 29 U.S.C.

permanent, and the mere possibility of recurrence is not § 2612(a)(1)(D). An employer who interferes with an

sufficient to establish substantial impairment. See Roush, 96 employee’s rights under the FMLA may be held liable in a

F.3d at 844. For these reasons, we hold that Plant has failed civil suit. See 29 U.S.C. § 2617; Miller v. Defiance Metal

to produce sufficient evidence from which a reasonable jury Prods., Inc., 989 F. Supp. 945, 946 (N.D. Ohio 1997).

could conclude that he was disabled within the meaning of the

ADA during the time in question. Plant argues that Morton interfered with his rights under the

FMLA. He claims that after his April 26, 1996 injury, he

Furthermore, we reject Plant’s contention that he was qualified as having a serious health condition that prevented

“regarded as” disabled within the meaning of 42 U.S.C. him from performing the essential functions of his position.

§ 12102(2). Plant has come forward with no evidence to Therefore, he argues, he was entitled to twelve weeks’ leave

show that he fits within this definition of disabled, other than under the FMLA, but he was terminated after only about six

to suggest that because Morton made accommodations for weeks. Furthermore, although Plant admits that he would not

Plant’s medical restrictions, it viewed him as disabled. This have been able to return to work within twelve weeks in any

is clearly not the kind of situation to which the statutory case, he argues that he should have been allowed to “stack”

provision for those who are “regarded as” disabled was the FMLA leave on top of his employer-provided temporary

intended to refer. Rather, the EEOC regulations explain that disability leave. In any case, he adds, his FMLA leave

this definition of disability applies when the employee has an allotment would not start to run until Morton notified him that

impairment that is not substantially limiting but is treated as it was designating his leave as FMLA leave, which it never

substantially limiting, or when the impairment is limiting only did. See 29 C.F.R. § 825.208(c) (1998).

because of others’ attitudes, or when the employee has no

impairment at all but is viewed as having a substantially Relying on Sixth Circuit precedent, the district court

limiting impairment by the employer. See 29 C.F.R. rejected Plant’s arguments. In Cehrs v. Northeast Ohio

§ 1630.2(l). The intent behind this provision, according to the Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998),

EEOC, is to reach those cases in which “myths, fears and this court held that the plaintiff could not show a violation of

stereotypes” affect the employer’s treatment of an individual. her rights under the FMLA, even if her employer had

29 C.F.R. § 1630.2(l) App. Plant cannot show that this terminated her before she had used her entire twelve-week

provision applies to him merely by pointing to that portion of allotment of leave, because she was undisputably unable to

the record in which his supervisor admitted that he was aware return to work within twelve weeks in any case. See id. at

784-85. Because Plant similarly would not have been able to

8 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 13

return to work until August 5, 1996, the district court found evidence to raise an issue of fact as to whether Morton’s

that Cehrs was directly on point and Plant could not show a nondiscriminatory explanation for Plant’s termination was

violation of the FMLA. pretextual.

We hold that Cehrs is not applicable to this case. Although We hold that Plant has not produced sufficient evidence

the Cehrs court appeared squarely to hold that an employee from which a factfinder could conclude that he was disabled.

who cannot return to work within twelve weeks has no The definition of “physical or mental impairment” under the

remedy under the FMLA, it did not specifically consider the ADA clearly includes Plant’s musculoskeletal condition of

problem presented in this case — that of notice by the knee contusions and back strain, see 29 C.F.R. § 1630.2(h)(1)

employer that the employee’s leave is being counted against (1999), and the term “major life activity” includes many of

his FMLA allotment. Because there is a Department of Labor those activities described by the plaintiff: the EEOC

regulation, 29 C.F.R. § 825.208(c), that specifically discusses regulations and the appendix to those regulations identify

the requirement of notice by employers, and because we walking, performing manual tasks, working, standing, and

believe that regulation to be valid, we hold that § 825.208(c), lifting as major life activities, see 29 C.F.R. §1630.2(i);

rather than Cehrs, governs the case sub judice. Interpretive Guidance 29 C.F.R. §1630.2(i) App. However,

Plant has not made a sufficient showing that his impairment

The FMLA makes it clear that employer-provided leave, substantially limited his ability to perform those major life

whether paid or unpaid, may be counted toward the twelve- activities. In his deposition, Plant stated that he was, at the

week minimum required by the statute. See 29 U.S.C. time of the deposition, injured to the point that he believed

§ 2612(c)-(d). The Department of Labor’s regulations himself completely unable to work, unable to sit for more

implementing the FMLA, which became final on April 6, than three to five minutes, unable to drive on a daily basis,

1995, see Bauer v. Varity Dayton-Walther Corp., 118 F.3d and unable to lift, bend, or stoop without severe pain.

1109, 1111 n.1 (6th Cir. 1997), elaborate on the Initially, Plant stated that he suffered those same impairments,

circumstances and conditions under which this may be done. “on and off,” during the time he was employed by Morton.

In particular, 29 C.F.R. § 825.208(a) emphasizes that “[i]n all J.A. at 478-80 (Plant Dep.). Later, however, Plant agreed that

circumstances, it is the employer’s responsibility to designate he was attributing his current inability to work to injuries that

leave, paid or unpaid, as FMLA-qualifying, and to give notice resulted from yet another automobile accident, which

of the designation to the employee.” 29 C.F.R. § 825.208(a). occurred nine months after he was terminated by Morton, in

Furthermore, the regulations provide that an employer April of 1997. Furthermore, Plant admitted that he worked

wishing to count paid leave against the twelve-week sporadically after his termination, from approximately

minimum must so inform the employee within two days of November of 1996 to April of 1997, at a job that involved

learning of the employee’s FMLA-qualifying reason for traveling to Pennsylvania once a week, installing computers,

requesting leave. See id. § 825.208(b). If the employer fails and training customers to use their computers. Finally, Plant

to give notice to the employee within this period of time, the admitted that he was never told by a physician that his

employer may not designate the leave as FMLA leave impairment was permanent; nor was he told, however, that it

retrospectively; only that portion of the leave following was temporary.

notification by the employer may be designated as FMLA

leave and counted against the twelve-week entitlement. See Plant’s self-contradictory and logically suspect testimony is

id. § 825.208(c). simply not sufficient to support a jury finding that he was

disabled during the period at issue here, from April 26 until

12 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 9

(B) a record of such an impairment; or The Cehrs court did not directly address these regulations,

(C) being regarded as having such an impairment. nor is it apparent from reading that decision whether the

employer had given notice to the plaintiff that her absences

42 U.S.C. § 12102(2). In his brief, Plant claims that he is would be counted as FMLA leave. Furthermore, the

disabled, because his ability to walk and to stand were employee in Cehrs had taken unpaid leave rather than paid

severely limited by his injuries. Based on the evidence leave, see Cehrs, 155 F.3d at 779; therefore, the court had no

presented by Plant, it appears that he also considers himself occasion to address § 825.208(c), which appears to govern

substantially restricted in the activities of bending, stooping, only those cases in which 1an employer wishes to designate

running, exercising, and driving. Plant also argues that he paid leave as FMLA leave. Because it is undisputed in this

was “regarded as” disabled by Morton, and that this fact is case that Plant received his full salary during his second

evidenced by Morton’s attempts to accommodate his medical absence from work, and because it is undisputed that Morton

restrictions. Furthermore, Plant contends that he was never informed Plant that it was counting his paid absence

qualified for the position of intermix coordinator with certain against the statutory FMLA allowance, Cehrs is inapplicable

reasonable accommodations. Finally, since Morton has not to this case. Furthermore, the record contains uncontroverted

disputed that it knew of Plant’s medical problems, terminated evidence that, although Plant did not specifically report to his

him, and either replaced him or left his position open while employer the re-injury of his back that occurred on April 26,

seeking other applicants, Plant argues that he has made out a 1996, Morton did receive a notice from Plant’s doctor, dated

prima facie case of discrimination. Although Morton claims May 6, 1996, excusing Plant from work due to a “[f]lare up

that Plant was terminated for poor job performance, Plant [of his] lumbar/back problem.” J.A. at 99 (Slip from Dr.

urges that he has presented enough evidence to raise a Owen Logee). The FMLA regulations make it clear that, in

genuine issue of material fact with respect to Morton’s such a situation, if the employer feels it does not have

proffered explanation, pointing to Dave Black’s alleged sufficient information to determine whether the employee’s

statement that Plant was being terminated due to his absences reasons for requesting leave are encompassed by the FMLA,

and to Bill Jones’s recantation of his negative appraisal of “the employer should inquire further of the employee . . . to

Plant. ascertain whether the paid leave is potentially FMLA-

qualifying.” 29 C.F.R. § 825.208(a). The employee need not

The district court found that Plant failed to establish that he invoke the FMLA by name in requesting leave for an FMLA-

was disabled, because Plant’s “unsupported testimony” did qualifying reason. See id. § 825.208(a)(2).

not demonstrate that his injury was sufficiently severe to limit

substantially his ability to perform a major life activity. It We see no reason why § 825.208(c) should not be

further found that Morton’s attempts to accommodate Plant’s considered valid and applicable to this case. In the absence of

restrictions were not sufficient to demonstrate that Morton

regarded Plant as disabled. Moreover, the district court

concluded that even if Plant were disabled, he was not 1

“otherwise qualified” for the position of intermix coordinator, We note that 29 C.F.R. §§ 825.301(b)-(c) and 825.700(a) prescribe

because by his own admission he could not perform the almost identical notice rules when employers wish to designate unpaid

essential functions of the job, such as traveling to customer leave as FMLA leave. However, the interim regulations, which applied

to the parties in Cehrs, did not contain the same notice requirements for

locations. Finally, the district court stated that even designating unpaid leave as FMLA leave, nor did they explicitly state that

assuming, arguendo, that Plant made out a prima facie case the failure to designate unpaid leave as FMLA leave stops the clock from

of discrimination, he did not come forward with sufficient running on the employee’s 12-week entitlement. See 29 C.F.R.

§§ 825.301, 825.700(a) (1994) (interim regulations).

10 Plant v. Morton Int’l, Inc. No. 99-3445 No. 99-3445 Plant v. Morton Int’l, Inc. 11

specific statutory language governing a topic, agency claim due to the fact that he would have been unable to return

regulations “are given controlling weight unless they are to work within a twelve-week period, we nonetheless must

arbitrary, capricious, or manifestly contrary to the statute.” consider whether Plant has demonstrated the other elements

Chevron U.S.A. Inc. v. Natural Resources Defense Council, of an FMLA claim. In particular, Plant is entitled to twelve

Inc., 467 U.S. 837, 844 (1984). The FMLA itself is silent as weeks of leave under the FMLA for his medical problems

to the notice an employer must give to an employee before only if he can show that he had a “serious health condition”

designating his paid leave as FMLA leave. We believe that which rendered him “unable to perform the functions of” his

§ 825.208(c) evinces a reasonable understanding of the position. 29 U.S.C. § 2612(a)(1)(D); see Miller, 989 F. Supp.

FMLA, reflecting Congress’s concern with providing ample at 946. According to the regulations, a serious health

notice to employees of their rights under the statute. See 29 condition must involve either inpatient care or continuing

U.S.C. § 2619(a). Moreover, because the FMLA was treatment by a health care provider. See 29 C.F.R.

intended to set out minimum labor standards, we do not § 825.114(a). Because the district court decided this case on

believe that § 825.208(c) is inconsistent with legislative intent other grounds, it did not consider whether Plant’s medical

merely because it creates the possibility that employees could problems met the definition of a serious health condition

end up receiving more than twelve weeks of leave in one under the statute and its implementing regulations. We

twelve-month period, due to an employer’s failure to notify therefore remand for that court to determine whether Plant has

them that the clock has started to run on their allotted period successfully made out the elements of an FMLA claim.

of leave. See S. REP. NO. 103-3, at 4-5 (1993), reprinted in

1993 U.S.C.C.A.N. 3, 6-7. We therefore disagree with C. The ADA Claim

McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999),

and Covey v. Methodist Hospital of Dyersburg, Inc., 56 F. In order to establish a prima facie case of discrimination

Supp. 2d 965 (W.D. Tenn. 1999), which held that under the ADA, Plant must show 1) that he is disabled; 2) that

§§ 825.208(c) and 825.700(a) were in conflict with the he is otherwise qualified for his previous position with

FMLA’s creation of a narrow entitlement to twelve weeks of Morton, with or without reasonable accommodation; 3) that

leave and therefore invalid. See McGregor, 180 F.3d at 1308; he suffered an adverse employment decision; 4) that Morton

Covey, 56 F. Supp. 2d at 969-70. Rather, we conclude that knew or had reason to know of his disability; and 5) that he

those regulations are valid and forbid employers from was replaced or that his position remained open while Morton

retroactively designating FMLA leave if they have not given looked for other applicants. See Monette v. Electronic Data

proper notice to their employees2 that their statutory Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If he

entitlement period has begun to run. Accord Cline v. Wal- succeeds, the burden shifts to Morton to provide a non-

Mart Stores, Inc., 144 F.3d 294, 300-01 (4th Cir. 1998); discriminatory explanation for its actions. See id. If Morton

Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp. 2d satisfies its burden, Plant must then come forward with

878, 880-81 (S.D. Miss. 1999). evidence demonstrating that Morton’s proffered explanation

is pretextual. See id. At all times, Plant retains the ultimate

Having determined that, since his FMLA leave had not yet burden of persuasion. See id. at 1186-87.

started to run, Plant is not precluded from asserting an FMLA

A “disability” under the ADA is defined as

2

We note that this holding renders it unnecessary for us to address

(A) a physical or mental impairment that substantially

Plant’s “stacking” argument, which appears to be a variation of his limits one or more of the major life activities of [an]

argument pertaining to the notice requirements. individual;