Appendix — Brenneman v. MedCentral Health System

Supreme Court, U.S.

(2)

No.

04-645 NOV 4 - 2004

In The

Supreme Court of the United States

+

LEE BRENNEMAN,

Petitioner,

MEDCENTRAL HEALTH SYSTEM,

+

Respondent.

Petition For A Writ of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

+

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

4

James P. Cullen

James P. Cullen, LLC, L.P.A.

Attorneys for Petitioner

Lee R. Brenneman

55 Public Square, Suite 1550

Cleveland, Ohio 44113

(216) 685-9700

John S. Lobur

Attorney for Petitioner

Lee R. Brenneman

Black & Associates, Co., LPA

1501 Madison Avenue

Painesville, Ohio 44077

(440) 350-1616

APPENDIX

SIXTH CIRCUIT COURT ORDER ............ A-1

SIXTH CIRCUIT COURT OPINION ............ B-1

NORTHER DISTRICT OF OHIO, EASTERN

DIVISION

MOTION FOR RECONSIDERATION OPINION . C-1

NORTHER DISTRICT OF OHIO, EASTERN

DIVISION

NORTHER DISTRICT OF OHIO, EASTERN

DIVISION

OPINION

APPENDIX A

No. 02-3623

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEE R. BRENNEMAN,

Plaintiff-Appellant,

vs-

MEDCENTRAL HEALTH

SYSTEM,

Nee ee ee ee ee ee”

Defendant-Appeliee.

JUDGES: BEFORE: KENNEDY, ROGERS, and, COOK, Circuit

Judges.

The court having received a petition for rehearing

en banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied..

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEE R. BRENNEMAN,

No. 02-3623

Plaintiff-A ppellant,

VS-

MEDCENTRAL HEALTH

SYSTEM,

Ne ee eee Ne ee ee Se”

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland

No. 01-01052- John M. Manos, District Judge

Argued: March 18, 2004

Decided and Filed: April 26, 2004

Before: KENNEDY, ROGERS, and COOK, Circuit Judges

COUNSEL: ARGUED: Natalie F. Grubb, Medina, Ohio,

for Appellant. Michael N. Chesney, FRANTZ WARD,

Cleveland, Ohio, for Appellee.

ON BRIEF: Natalie F. Grubb, Medina, Ohio, for

Appellant. Michael N. Chesney, Michael J. Frantz,

FRANTZ WARD, Cleveland, Ohio, for Appellee.

OPINION BY: KENNEDY

KENNEDY, Circuit Judge. Plaintiff Lee Brenneman

("plaintiff") filed suit against his former employer

l

Saat

MedCentral Health System ("defendant"), alleging

disability discrimination in violation of the federal

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§

12101 et. seq., and the Ohio Revised Code § 4112.02 as

well as a violation of the federal Family and Medical Leave

Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. nl Plaintiff

appeals the district court's award of summary judgment in

favor of defendant on these claims. For the reasons

explained below, we AFFIRM the district court's grant of

summary judgment to defendant. [**2]

nl Plaintiff also alleged state-law claims of promissory

estoppel, intentional infliction of emotional distress, and

wrongful discharge contrary to public pclicy, on which the

district court, in a single order, also awarded defendant

summary judgment. While plaintiff, per his notice of

appeal, purports to appeal the district court's entire

summary judgment order, plaintiff has presented no

argument on theses stite-law claims in his briefs and, thus,

has failed to preserve such claims for appeal. See Sommer

v. Davis, 317 F.3d 686, 691 (6th Cir. 2003) (holding that

the HN appellants abandoned an issue for purposes of

appeal where they failed to argue it in their briefs).

I. Background

The record reveals the following facts. Plaintiff Brenneman

2

worked in defendant [*416] MedCentral Health System's

Pharmacy Department for approximately twenty-seven

years. Although he began his employment in 1973 as a

Pharmacy Helper, he received a promotion to Pharmacy

Technician in 1975. Plaintiff remained in this [**3]

position throughout the rest of his employment. Plaintiff

was diagnosed with diabetes mellitus [***3] in 1968.

Although he sometimes has episodes of hypoglycemia, in

which he can experience seizures, shock, and/or

lightheadedness and incoherence, plaintiff generally

controls his condition with insulin. Plaintiff also controls

his diabetes by regulating his diet, exercising, and

monitoring his blood sugar level throughout the day using a

glucometer. Since 1998, plaintiff, whose diabetes has

worsened with age, has used an insulin pump to control this

condition.

During the course of his employment, plaintiff had

substantial attendance deficiencies. According to his

employment records, plaintiff had 193 unapproved

absences and 34 late arrivals or early departures during his

employment. These attendance deficiencies chiefly related

to medical problems other than plaintiff's diabetes, such as

six work-related injuries and other general illnesses.

Defendant granted plaintiff FMLA leave on five occasions,

none of which was for diabetes. Per its attendance policy,

defendant disciplined plaintiff numerous times for his

attendance problems. For example, plaintiff received a

number of verbal [**4] and written warnings and

suspensions. Although each disciplinary form affords the

employee an opportunity to respond to the disciplinary

action, plaintiff never once protested the imposition of

discipline or mentioned his diabetes. |

On March 31, 2000, plaintiff informed defendant that he

“wasn't doing well and . . . wouldn't be in" that day. At that

time, he did not mention that his absence was in any way

related to his diabetic condition. On April 4, 2000, plaintiff

met with his supervisors, Thomas Arkwright ("Arkwright"),

the Director of Pharmacy Services, and Brian George

("George"), the Assistant Director of Pharmacy Services,

regarding his attendance deficiencies. During this meeting,

however, plaintiff never referenced his diabetes as the

reason for his latest absence. Under defendant's attendance

policy, this absence triggered another suspension of

plaintiff. Moreover, pursuant to that policy, this suspension

triggered plaintiff's termination because it was his third

attendance-related [***4] suspension within five years.

Thus, at the conclusion of the meeting, plaintiff was

terminated.

On April 6, 2000, plaintiff requested and attended a final

exit interview with Bruce [**5] Engle ("Engle"),

defendant's Vice President of Human Resources. Plaintiff,

for the first time, mentioned that his March 31st absence

was due to his diabetes. Specifically, plaintiff presented a

note from Dr. Cynthia Dorsey, his diabetes specialist,

stating that the absence was due to an extended episode of

diabetes-related hypoglycemia. Defendant, nevertheless,

finalized plaintiff's termination. n2

n2 Defendant contends that plaintiff's apparent dishonesty

during this exit interview afforded an additional ground

upon which to terminate plaintiff, pursuant to its general

disciplinary policy. Twice during the meeting, Engle asked

plaintiff what he had done on March 31st, the day of his

final absence. Twice plaintiff answered that he had been

sick and had remained at home in bed all day. Engle,

however, had learned that plaintiff had seen his workers’

compensation doctor on that same day for

non-diabetes-related reasons. When Engle confronted

plaintiff with this information, plaintiff admitted that he

had not, in fact, spent the entire day in bed. Plaintiff told

Engle that he had simply forgotten about the appointment.

Plaintiff testified that he had sufficiently recovered from his

alleged hypoglycemic attack to drive himself approximately

thirty-six miles round-trip to his workers' compensation

doctor's appointment at 10:30 a.m. Plaintiff further testified

that he was, nevertheless, not well enough to return to

work. Defendant concedes, however, that this apparent

misrepresentation by plaintiff was not a factor in its

decision to terminate plaintiff; rather, according to

defendant, it terminated plaintiff pursuant to its attendance

policy. Thus, while this post hoc, additional ground for

plaintiff's termination may be relevant to the calculation of

any damages, it is irrelevant to the determination of

whether defendant improperly terminated plaintiff under

the ADA or the FMLA in the first instance. See McKennon

v. Nashville Banner Publ'g Co., 513 U.S. 352, 361-62, 130

L. Ed. 2d 852, 115 S. Ct. 879 (1995) (explaining that,

HN2when an employer discovers an employee's

wrongdoing after improperly terminating the employee on

other grounds, "as a general rule . . . neither reinstatement

nor front pay is an appropriate remedy . . . . The beginning

point in the . . . formulation of a remedy should be

calculation of backpay from the date of the unlawful

discharge to the date [that] the new information was

discovered").

‘eee

[*417] IL. Analysis ~——_-

HN3 We review the district court's order granting summary

judgment de novo. Williams v. Mehra, 186 F.3d 685, 689

(6th Cir. 1999). HN4Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show

that there is no genuine issue of material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). HNSA "material" fact is one "that

might affect the outcome of the-suit:" Andersen v. Liberty

Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct.

2505 (1986). HN6A "genuine" issue exists if "the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Id. at 255. HN7We must accept the

non-moving party's evidence, and draw all justifiable

inferences in his favor. Id. HN8"We may affirm a decision

of the district court if correct for any reason, including one

not considered below." See United States Postal Serv. v.

Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750

(6th Cir. 2003).

A. Disability Discrimination [**7]

HN9The ADA proscribes discrimination "against a

qualified individual with a disability because of the

disability of such individual in regard to job application

~—

~

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other

terms, conditions, and privileges of employment." 42

U.S.C. § 12112. HN10Under the ADA, an employer's

denial of employment opportunities to an employee with a

disability may constitute such unlawful discrimination if

the denial is based upon the employer's need "to make

reasonable accommodation to the physical or mental

impairments of the employee or applicant." 42 U.S.C. §

12112 (b)(5)(B) (1991). HN11To establish a prima facie

case of discrimination under the ADA, a plaintiff must

demonstrate that: "(1) he is disabled; (2) he is otherwise

qualified for the position with or without reasonable

accommodation; (3) he suffered an adverse employment

decision; (4) his employer knew or had reason to know of

his disability; and (5) his [***6] position remained open."

Hammon v. DHL Airways, Inc., 165 F.3d 441, 449 (6th

Cir. 1999). HN12Once a plaintiff establishes a [**8] prima

facie case of disability discrimination, the burden of

production shifts to the employer to articulate a legitimate,

non-discriminatory reason for the adverse action against

plaintiff. Brohm v. JH Properties, Inc., 149 F.3d 517,

520-21 (6th Cir. 1998) Once the employer discharges this

burden of production, the employee must demonstrate that

the [*418] proffered reason was, in fact, a pretext for

unlawful disability discrimination. Id. at 521. The plaintiff

always retains the ultimate burden of persuasion. Plant v.

Morton Int'l, Inc., 212 F.3d 929, 936 (6th Cir. 2000).

Becaiise neither party has argued that an action for

handicap discrimination under Ohio law entails a different

legal analysis than that for disability discrimination under

the ADA, and because Ohio case law tends to suggest that

it entails the same legal analysis as that under the ADA, we

will analyze plaintiff's state and federal discrimination

claims under Ohio Revised Code § 4112 and the ADA,

respectively, solely under the ADA. See Plant, 212 F.3d at

938-39 (noting that Ohio case law seems to support the

proposition that [**9] the ADA analysis applies to a Ohio

claim of disability discrimination, and assuming so for

purposes of its analysis because the parties have not argued

otherwise); Martin v. Barnesville Exempted Vill. Sch. Dist.

Bd. of Educ., 209 F.3d 931, 934 n.2 (6th Cir. 2000)

(holding that "both federal and Ohio disability

discrimination actions require the same analysis"); City of

Columbus Civil Serv. Comm'n v. McGlone, 82 Ohio St. 3d

569, 1998 Ohio 410, 697 N.E.2d 204, 206-07 (Ohio 1998)

(holding that, to establish a prima facie case of handicap

discrimination under Ohio law, which is "similar" to the

ADA, a plaintiff must show that: 1) he was handicapped; 2)

the employer took an adverse action against him, at least in

part, because of his handicap; and 3) the plaintiff, "though

handicapped, can safely and substantially perform the

essential functions of the job in question," and noting that

Ohio courts may look to the ADA for guidance in the

interpretation of Ohio law). But see Wooten v. City of

Columbus, 91 Ohio App. 3d 326, 632 N.E.2d 605, 611

(Ohio Ct. [***7] App. 1993) (holding that Ohio disability

discrimination law is "at least as broad, if [**10] not

broader, in scope than” the ADA) (emphasis added).

The district court granted summary judgment for defendant

on plaintiff's state and federal disability discrimination

claims on the ground that plaintiff had failed to establish a

prima facie case of such discrimination; specifically, the

district court held that plaintiff was unqualified due to his

inability to satisfy defendant's basic attendance

requirements. n3 We agree with the district court that

plaintiff, as a matter of law, has failed to establish that he

was Otherwise qualified for the position of Pharmacy

Technician with or without reasonable accommodation.

Plaintiff's disability discrimination claims hinge upon

defendant's failure to grant plaintiff the reasonable

accommodation of FMLA leave for his diabetes-related

absences and defendant's ultimate termination of plaintiff

under its attendance policy based upon its assessment of

points for these diabetes-related absences.

n3 As to plaintiff's failure to establish a prima facie case,

the district court also held that plaintiff could not base his

disability discrimination claim on any alleged refusal by

defendant to accommodate plaintiff by granting him leave

for his diabetes because plaintiff had never requested any

such accommodation from defendant. The district court

also granted summary judgment for defendant on the

alternative ground that, even if plaintiff were to have

established a prima facie case of disability discrimination,

he, nevertheless, failed to demonstrate that defendant's

proffered legitimate reasons for plaintiff's termination were

a pretext for disability discrimination.

However, even if defendant had granted plaintiff medical

leave for those absences which plaintiff specifically alleges

were diabetes-related-absences on February 16, 1996;

February 9, 1999; and March 31, 2000-, n4 plaintiff, as a

matter [***8] of [*419] law, would not have been

qualified to perform the essential functions of the Pharmacy

Technician position due to his excessive absenteeism. See

Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047

(6th Cir. 1998) HN13("An employee who cannot meet the

attendance requirements of the job at issue cannot be

considered a ‘qualified’ individual protected by the ADA.");

Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155

F.3d 775, 781-82 (6th Cir. 1998) (holding that medical

leave may be a reasonable accommodation under the ADA,

there is no presumption that uninterrupted attendance is an

essential job requirement, and that the employer must

demonstrate that such leave would be unreasonable and

impose an undue burden upon it, but noting that the

plaintiff, nevertheless, bears the burden of proving that she

was qualified for the position with such accommodation);

Hayes v. Cleveland Pneumatic Co., 92 Ohio App. 3d 36,

634 N.E.2d 228, 232 (Ohio Ct. App. 1993) [**12] (holding

that plaintiff, for purposes of his Ohio handicap

discrimination claim, failed as a matter of law to

demonstrate that he was capable of performing one of the

essential functions of his job-regular attendance-due to his

excessive absenteeism). The district court found that, based

upon George's affidavit and its supporting documentation,

plaintiff had been absent 193 times and had arrived late or

left early on 34 occasions within the five years preceding

his termination. Plaintiff claims that the payroll and

clocking reports attached to George's affidavit are not the

documents upon which George relied in calculating

plaintiff's attendance points. Rather, according to plaintiff,

George calculated the attendance points based upon a

10

four-page spreadsheet, which plaintiff presented him with

and questioned him about during [***9] his deposition.

Moreover, plaintiff underscores that George, during his

deposition, counted only five and one-third attendance

points from that spreadsheet-an amount insufficient for

defendant's entrance into the new attendance point system,

under which defendant was ultimately terminated. n5

However, George testified that the referenced spreadsheet

was [**13] a document that he had [*420] prepared for an

unemployment compensation hearing after plaintiff's

termination. George further testified that he would not have

used this spreadsheet in calculating plaintiff's attendance

points, and that he had used other documents, such as point

reports and call-off sheets, that were not before him during

his deposition. Thus, plaintiff, in attempting to manufacture

a genuine issue of material fact, misconstrued George's

testimony; George never testified-nor does any record

evidence show-that he relied on this spreadsheet in

calculating plaintiff's attendance points. Alternatively,

plaintiff argues that a document entitled "Leave of Absence

History," which provides that plaintiff, since 1995, had 43

absences from non-work-related injuries and 66 absences

from work-related injuries, refutes defendant's contention

that plaintiff had 227 absences. However, as defendant

points out, [***10] this document details only plaintiff's

absences for which defendant granted him formal leaves of

absence. In any event, plaintiff seems to concede that he has

been absent on 109 occasions since 1995.

n4 Although plaintiff argues that he should have received

11

medical leave for certain other diabetes-related absences,

absences for which he simply informed defendant that he

was "ill" or "not feeling well,” we decline to consider these

absences in our analysis since, as a matter of law, they do

not constitute a request for leave as an accommodation for

his diabetes. While plaintiff claimed that he would often

relay this explanation when he was experiencing

diabetes-related illnesses, this statement would not have

reasonably apprised defendant that the absences were

related to a disability rather than some general illness. See

Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042,

1046-47 (6th Cir. 1998) HN 14("The employer is not

required to speculate as to the extent of the employee's

disability or the employee's need or desire for an

accommodation."). [**14]

n5 Plaintiff argues that defendant's attendance policy was

neither uniform nor uniformly applied because each

department had it own attendance guidelines. Beth Hildreth

("Hildreth"), defendant's Human Resources Manager,

testified that each department, including the Pharmacy

Department, had its own attendance guidelines and that

these could deviate as to the threshold that the employees

must pass to enter into the system-wide attendance point

system. However, Hildreth testified that the system-wide

attendance point system uniformly applied to each

employee who entered that system. Defendant has provided

evidence of three, non-disabled employees in the Nursing

Department whom it terminated for excessive absenteeism

under its new attendance point system. Plaintiff does not

dispute this evidence. Rather, plaintiff seems to argue that

12

his accumulation of seven and one-third points so as to

enter the attendance point system in the first instance was

pursuant to a non-uniformly applied attendance policy.

Because plaintiff has offered neither evidence of nor any

meaningful argument on the alleged disparate application

of the Pharmacy Department's attendance guidelines, we

decline to consider such an argument.

on «5 a End Footnotes- - - - - - - - - - - - - - [**15]

According to Arkwright's affidavit, regular attendance is an

essential function of the Pharmacy Technician position,

which entails preparing and delivering medications to

hospital patients, ordering, receiving, and stocking

medications, and posting charges to patients’ accounts.

Clearly, plaintiff could not perform these duties when

absent from defendant's premises. Arkwright further

testified that plaintiff's excessive absences placed a great

strain on the Pharmacy Department. Specifically each time

plaintiff was absent, Arkwright would have to either call in

an unscheduled employee to cover plaintiff's shift or else

reassign plaintiff's duties to employees who were already

scheduled to work. Consequently, according to Arkwright,

plaintiff's excessive absenteeism increased both employees'

workloads and the department's pay-roll expenses and

decreased the Pharmacy Department's morale. While

Arkwright tried to carry a number of pharmacy employees

whom he could call-in to work at a moment's notice to

cover for an absent technician, it does not follow, as

plaintiff contends, that plaintiff's absences did not prejudice

defendant whatsoever. Arkwright's testimony shows

otherwise. In sum, [**16] plaintiff, as a matter of law, has

13

failed to demonstrate that he was qualified to perform the

essential functions of the Pharmacy Technician position,

even if he had received medical leave as a reasonable

accommodation for his diabetes; rather, the record is replete

with evidence of plaintiff's excessive absenteeism, which

rendered him unqualified for that position. n6 Thus, the

district [***11] court properly granted defendant summary

judgment on plaintiff's disability discrimination claims

under the ADA and Ohio law.

n6 In so holding, we need not and do not express any

opinion upon whether plaintiff has satisfied the other

elements of a prima facie claim of disability discrimination

or whether he has sufficiently demonstrated that defendant's

proffered non-discriminatory reasons are pretexts for

disability discrimination.

B. FMLA Violation

HN15The FMLA affords an eligible employee up to twelve

weeks of leave within a twelve month period when the

employee suffers from "a serious health condition that

[**17] makes the employee unable to perform the

functions of . . . [his] position," among other qualifying

reasons. 29 U.S.C. § 2612(a)(1)(D). HN16The term

"serious health condition" signifies "an illness, injury,

impairment, or physical or mental condition that involves . .

14

. (A) inpatient care in a hospital, hospice, or residential

medical care facility or (B) continuing treatment by [*421]

a health care provider." 29 U.S.C. § 2611(11); see 29

C.F.R. § 825.114 (defining "inpatient care in a hospital,

hospice, or residential medical care facility" and

"continuing treatment by a health care provider"). 29 C.F.R.

§ 825.114(a)(2)(ii1) provides that a HN17"serious health

condition involving continuing treatment by a health care

provider includes . . . any period of incapacity or treatment

for such incapacity due to a chronic serious health

condition." It further defines a "chronic serious health

condition as one which: (A) Requires periodic visits for

treatment by a health care provider . . .; (B) Continues over

an extended period of time (including recurring episodes of

a single underlying condition); [**18] and (C) May cause

episodic rather than a continuing period of incapacity (e.g.,

asthma, diabetes, epilepsy, etc.)." Id. (emphasis added).

HN18To invoke the FMLA's protection for this qualifying

reason, the eligible employee, during his employment, must

request leave and give the employer notice that he is

requesting such leave for a serious health condition that

renders him unable to perform his position's duties. See

Brohm, 149 F.3d at 523 (holding that, because the FMLA

requires the eligible "employee. . . [to] provide notice and a

qualifying reason for requesting the leave,” the plainuff's

[***12] FMLA claim cannot lie where he requested

medical leave and received medical attention for his serious

health condition only after the termination of his

employment); .ammon, 165 F.3d at 451 (holding that a

FMLA claim does not lie where the plaintiff failed to notify

his employer of his qualifying condition and to request

leave for such condition during his employment, but, rather,

15

only did so after his employment had ended). However,

HN19the eligible employee need not expressly mention the _

FMLA as the source of his right to request such [**19]

leave. Hammon, 165 F.3d at 451. Rather, the critical test

for substantively-sufficient notice is whether the

information that the employee conveyed to the employer

was reasonably adequate to apprise the employer of the

employee's request to take leave for a serious health

condition that rendered him unable to perform his job.

Brohm, 149 F.3d at 523; Cavin v. Honda of Am. Mfg., Inc.,

346 F.3d 713, 725 (6th Cir. 2003) (holding that the

plaintiff, as a matter of law, had sufficiently notified his

employer during his employment that his request for

unforeseeable leave was for a FMLA-qualifying serious

health condition when he informed his employer that he

had been at the hospital and was unable to work due to an

injury from a motorcycle accident).

HN20The eligible employee must also give the employer

this substantive notice within the requisite time frame.

When the eligible employee's leave for his serious health

condition is foreseeable based upon planned medical

treatment, he must "provide the employer with not less than

30 days' notice, before the date the leave is to begin." See

29 U.S.C. § 2612(e)(2)(B) (excluding [**20] a situation in

which "the date of treatment requires leave to begin in less

than 30 days" and requiring the eligible employee, in such a

situation, to "provide such notice as is practicable"). In

contrast, HN21when the approximate time of the needed

leave is unforeseeable, the eligible employee should give

the employer notice of the need for the leave "as soon as

practicable under the facts and circumstances of the

particular case." 29 C.F.R. § 825.303(a). "It is expected that

16

an employee will give notice to the employer within no

more than one or two workings days of [***13] learning

of the need for leave, except in extraordinary circumstances

... [in which] such notice is not feasible.” Id.

HN22 [*422] Once an employer receives sufficient notice

that the eligible employee is requesting leave for a

FMLA-qualifying reason, the employer bears the burden to

gather any additional information necessary for the leave to

fall within the FMLA. Hammon, 165 F.3d at 450. HN23An

employer may require the eligible employee to provide, in a

timely manner, certification by a health care provider. 29

U.S.C. § 2613(a). HN24Where the leave is due [**21] toa

serious health condition of the employee that prevents him

from performing his job, the requested certification is

sufficient if it states the date upon which the serious health

condition began, the condition's probable duration, the

appropriate medical facts regarding the condition within the

health care provider's knowledge, and a statement that the

employee is unable to perform his position's duties. 29

U.S.C. § 2613(b).

HN25The FMLA renders it "unlawful for any employer to

interfere with, restrain, or deny the exercise of or the

attempt to exercise any right" that it affords. 29 U.S.C. §

2615(a)(1). Furthermore, HN26any violation of the

FMLA.-or of the regulations implementing it-constitutes

such unlawful interference. 29 C.F.R. § 825.220(b)

(referencing an employer's refusal to authorize FMLA leave

as an illustration of unlawful interference). HN27The

FMLA also 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

17

Act. For example, an employer may neither use an

employee's "taking of FMLA leave as a negative [**22]

factor in [an] employment action[]" against that employee

nor count an employee's FMLA leave under its "no fault"

attendance policies. 29 C.F.R. § 825.220(c).

Plaintiff's complaint alleges that defendant unlawfully

interfered with plaintiff's exercise of his rights under the

FMLA by counting various absences that he alleges were

FMLA-qualifying-absences on February 16, 1996; [***14]

February 9, 1999; and March 31, 2000-under its "no-fault"

attendance policy and by subsequently terminating plaintiff

pursuant to that policy. The district court granted summary

judgment to defendant on plaintiffs FMLA claim on the

ground that plaintiff, as a matter of law, failed to give

defendant sufficient notice of a FMLA-qualifying reason

for these alleged diabetes-related absences. n7

7 Before the district court, defendant argued that any

FMLA claim based upon plaintiff's absences on February

16, 1996, and February 9, 1999, was time-barred because

plaintiff had received suspensions based upon these

absences and that these material adverse actions fell outside

of the applicable statute-of-limitations period. See 29

U.S.C. § 2617(c)(1) and (2) (stating that an action may be

brought under the FMLA "not later than 2 years after the

date of the last event constituting the alleged violation for

which the action is brought[,]" except that an action for a

willful violation may be brought within 3 years after such

time); Butler v. Owens-Brockway Plastic Prods., 199 F.3d

18

314, 317 (6th Cir. 2000) (holding that a plaintiff's

termination claim was not time-barred simply because it

was based upon certain time-barred assessments of points

for absences where the termination was the first material

adverse action, and illustrating such a material adverse

action with probation, termination, or a failure to reinstate).

Plaintiff countered that the "continuing violations" theory

applies so as to toll the statute of limitations here. See

Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991).

Defendant, in response, argued that there is no precedential

support for the proposition that the "continuing violations"

theory applies to the FMLA, as it does to

anti-discrimination law. The district court did not expressly

determine this statute-of-limitations issue when it held that

plaintiff, as a matter of law, had failed to give defendant

sufficient notice that his absences on February 16, 1996,

and February 9, 1999, were FMLA-qualifying. In any event,

defendant, by neither raising it nor presenting any argument

on it in its brief, has abandoned the statute-of-limitations

argument on appeal. See Sommer v. Davis, 317 F.3d 686,

691 (6th Cir. 2003).

[*423] 1. March 31, 2000, Absence

On appeal, plaintiff contends that the district court erred in

granting defendant summary judgment because plaintiff

had timely and sufficiently notified defendant of his need

for FMLA leave for his absence on Friday, March 31, 2000,

the latest absence triggering his termination under

defendant's [***15] attendance policy. On Friday, March

19

31st, plaintiff called defendant to inform it that he would

not be at work. In particular, he stated that he "wasn't doing

well and . . . wouldn't be in today." At that time, he did not

mention that his absence was in any way related to his

diabetic condition. Although plaintiff worked on Saturday

and Sunday, April 1st and 2nd, respectively, he made no

further mention of the reason for his one-day absence. On

April 4th, his next scheduled day of work, plaintiff met

with supervisors Arkwright and George regarding his

attendance deficiencies. During this meeting, however,

plaintiff did not mention his diabetes as the reason for his

latest absence. n8 Under defendant's attendance policy, this

absence triggered both plaintiff's suspension and his

termination because it was his third attendance-related

suspension [**24] within five years. On April Sth,

plaintiff's wife informed Engle that plaintiff had been

absent on March 31st due to a hypoglycemic episode, and

that she had attended to him all night due to that episode.

On April 6, 2000, plaintiff requested and attended a

meeting with Engle. Plaintiff, for the first time, mentioned

that his March 31st absence was due to his diabetes.

Specifically, plaintiff presented a note from Dr. Dorsey that

stated that "severe hypoglycemia due to diabetes" caused

the absence and that this absence was, thus,

FMLA-qualifying.

< —

n8 Plaintiff argues that he did not mention his diabetes

during the April 4th termination meeting because he was

never asked why he had been absent on March 31st.

However, this argument is not persuasive. Given that his

20

supervisors were expressly terminating plaintiff based, in

part, upon this absence, a reasonable person in plaintiff's

position would have referenced the reason necessitating

that absence in an attempt to avert the termination.

The information that plaintiff [**25] gave defendant-via

his wife's statement to Engle or Dr. Dorsey's note-may have

been sufficient to convey to defendant that plaintiffs March

31st absence was due to a serious health condition that

rendered [***16] him unable to perform his job. n9 See

Brohm, 149 [*424] F.3d at 523; 29 C.F.R. § 825.303(b)

(noting that HN28an employee's spokesperson, such as a

spouse, may give the employer the required notice if "the

employee is unable to do so personally"). However,

plaintiff, as a matter of law, failed to give defendant notice,

even if it were substantively sufficient, within the necessary

time frame for unforeseeable leave. n10

N9 Plaintiff also argues that a genuine issue of material fact

exists as to whether he had given defendant sufficient

notice when he called in on Mrch 31st and simply stated

that he "wasn't doing well and . . . wouldn't be in today." In

support,-plaintiff relies on Spangler v. Fed. Home Loan

Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002). In

Spangler, the Eighth Circuit held that a genuine issue of

material fact regarding notice existed because the defendant

employer knew that the plaintiff suffered from depression,

21

that she had needed FMLA leave for depression in the past,

and knew that her latest absence was from "depression

again.” Id. at 852-53. Here, plaintiff argues that defendant

knew that plaintiff has diabetes and that plaintiff had

FMLA-qualifying, diabetes-related absences on February

16, 1996, and February 9, 1999-absences for which plaintiff

contends defendant unlawfully penalized him. Unlike in

Spangler, however, plaintiff did not advise defendant that

his March 31st absence was related to a serious health

condition-here, diabetes. Moreover, plaintiff's bare

statement that he was unwell would not have reasonably

apprised defendant that his absence was FMLA-qualifying,

given plaintiff's long history of diverse physical maladies,

both work-related and non-work-related. Likewise,

plaintiff's assertion that he would habitually state only that

he was "ill" or "not feeling well" when he was experiencing

a diabetes-related illness is unpersuasive. Thus, even if

plaintiff's assertions were true-that defendant knew of

plaintiff's diabetes and his past need for FMLA leave for

diabetes-related absences-, they are insufficient to create a

genuine issue of material fact as to whether plaintiff's

"call-in" gave defendant sufficient notice that his March

31st absence was FMLA-qualifying. [**26]

nl0 To the extent that defendant argues that his notice was

temporally sufficient because he met the time requirement

for providing the employer-upon its request-of medical

certification to support a FMLA-qualifying request for

leave, such an argument is misplaced. See 29 U.S.C. §

2613; 29 C.F.R. § 825.311(b). Rather, the issue is whether

plaintiff provided defendant with sufficient notice that his

22

request for leave was for a FMLA-qualifying condition in

the first instance.

[***17]

First, plaintiff failed to give defendant notice "within no

more than one or two workings days of learning of the need

for leave." 29 C.F.R. § 825.303(a). Defendant did not

receive notice from either plaintiffs wife or Dr. Dorsey's

letter on or before April 2nd, the second working day after

plaintiff learned of the need for the March 31st absence.

Plaintiff argues that, although he worked on April Ist and

2nd, he was not required to give notice on or before April

2nd because Saturday and Sunday, the ist and 2nd of April

respectively, [**27] are not normal working days for

physicians. However, the applicable regulation imposes no

qualification that only the normal working days of

physicians be counted in determining the timeliness of an

employee's notice. See id. To the extent that plaintiff is

implying that he needed to see Dr. Dorsey to be able to give

defendant the required substantive notice, we fail to see

how Dr. Dorsey possessed any more information pertaining

to whether plaintiff's March 31st absence was due to a

serious health condition rendering him unable to work than

what plaintiff himself possessed. nl1 While Dr. Dorsey

may have informed plaintiff that the FMLA might cover the

absence and provided medical certification to support any

such claim, plaintiff need not have specifically mentioned

the FMLA nor provided medical certification to meet his

initial burden of giving defendant the requisite notice. See

Hammon, 165 F.3d at 451; 29 U.S.C. § 2613; 29 C.F.R. §

23

825.311(b).

oven eeseenns CE ee

nll In fact, plaintiff testified that he neither spoke with nor

saw Dr. Dorsey on March 31, 2000, for his diabetic

condition. Rather, plaintiff first saw Dr. Dorsey regarding

his March 31st hypoglycemic episode on April Sth, and Dr.

Dorsey's letter was based upon a reading of plaintiff's blood

glucometer from the day of the absence.

Ss

In addition, no extraordinary circumstancés existed to

render it unfeasible for plaintiff to have given defendant the

necessary notice on or before April 2, 2000, the second

working day following plaintiffs March 31st absence. See

29 C.F.R. § 825.303(a). Plaintiff seems to argue that,

because of [***18] the physical effects of his

hypoglycemic episode, he was physically unable to inform

defendant that his March 31st absence was due to that

diabetes-related illness. In support, plaintiff relies upon Dr.

Dorsey's letter. In that letter, Dr. Dorsey stated that she

believed that plaintiff had been unable to explain or to

recognize that he was suffering from "severe hypoglycemia

due to diabetes" when he called in on March 31st to report

his absence because he had suffered from an extended

period of hypoglycemia, which often causes "prolonged

physical symptoms, including headache, difficulty thinking

[*425] and concentrating, and hypothermia." However,

plaintiff testified that he had "stabilized and everything was

24

fine" by the time that he had returned to work on April Ist.

Thus, plaintiff was physically able to give defendant

sufficient notice on or before [**29] April 2nd, even if he

were physically unable to do so on March 31st.

Plaintiff also argues that, even though defendant knew or

had reason to know that he was a diabetic, defendant failed

to advise him that the FMLA could cover diabetes-related

absences, even those involving only episodic incapacity.

Plaintiff testified that he would often report a

diabetes-related absence by merely stating that he was "not

doing well" and without expressly mentioning his diabetes

because defendant had never informed him that the FMLA

could cover such an absence. Plaintiff further testified that

he did not think that mentioning the diabetes-related cause

of the March 31st absence would have made any difference

because he had received attendance points for previous

absences that he had advised defendant were

diabetes-related. Thus, plaintiff argues that, due to

defendant's alleged failure to inform plaintiff that the

FMLA covered diabetes and permitted intermittent leave

for such a condition, plaintiff gave defendant the requisite

notice "as soon as [was] practicable under the facts and

circumstances.” For example, plaintiff testified that he

attempted to get medical certification from Dr. Dorsey

[**30] for his March 31st absence only after he learned

from his wife, on April Sth, that the FMLA could have

covered his diabetes-related absences. According to

[***19] plaintiff's wife, after she told Engle, on April 5th,

that plaintiff's March 31st absence was due to his diabetes,

Engle informed her that plaintiff could have taken all of his

diabetes-related absences under the FMLA. However, as

the record makes clear and as he acknowledged in his

25

deposition, plaintiff, over the course of his employment,

received several informational notices from defendant

specifying that the FMLA may cover diabetes as a chronic

health condition, whether for episodic or continuing

incapacity. Plaintiff testified that he cannot recall ever

reading any of these notices, that he might have read

through one of them "real quickly,” and that, even if he had

read one of them, he would not have noticed that it

mentioned diabetes. Plaintiff underscored that no one ever

"told" him about the FMLA's coverage of diabetes.

However, plaintiff's lack of notice, if any, concerning the

FMLA's coverage of diabetes stems from his own willful

ignorance, not from any culpability on defendant's part. The

FMLA does not require [**31] defendant to foresee that

plaintiff would not have read the many notices that it had

sent regarding the FMLA's coverage and, thus, either to

force plaintiff to read those notices or to convey their |

content to him verbally. Contrary to plaintiff's assertion, his

alleged lack of notice concerning the FMLA's coverage of

diabetes does not absolve him of his failure to advise

defendant that his March 31st absence was diabetes-related

on or before April 2, 2000. In sum, we find that plaintiff

failed to give defendant the requisite notice that his March

31st absence was FMLA-qualifying in a timely fashion. n12

n12 First, in so holding, we need not and do not express any

opinion upon whether plaintiff was an "eligible employee"

for purposes of the FMLA after his termination on April 4,

2000. Plaintiff contends that genuine issues of material fact

exist as to whether: 1) his discharge was delayed pending a

26

grievance process, which ended in June of 2000; 2) whether

his employment relationship continued for purposes of

FMLA eligibility during that grievance; and 3) whether

plaintiff gave sufficient notice for his March 31, 2000,

absence during his employment relationship. See Biermann

v. ALCOA, 2000 U.S. Dist. LEXIS 21964, No.

3-98-CV-20159, 2000 WL 33362002, at *8 (S.D. Iowa Jan.

21, 2000) (finding a genuine issue of material fact over

whether the plaintiff's discharge "was delayed pending

resolution of the grievance [process] under the CBA, and

thus whether the employer-employee relationship continued

for purposes of FMLA eligibility during the grievance

process). Plaintiff also argues that his termination was not

yet final on April 4th because, according to Hilbreth, she

and Engle retained authority to halt the termination.

Because we hold, however, that no reasonable jury could

find that plaintiff was not required to give the requisite

notice on or before April 2, 2000, and that plaintiff, in fact,

gave the necessary notice within this time frame, any issues

of fact concerning any notice after April 4th are immaterial.

Second, we reject plaintiff's argument that a genuine issue

of material fact exists as to whether plaintiff had

accumulated enough points to warrant termination. As of

December 19, 1999, plaintiff had accumulated seven and

one-third attendance points under the old attendance policy.

According to the new attendance policy, plaintiff's seven

and one-third points converted into two and one-third

points. Plaintiff's March 31, 2000, absence resulted in the

accumulation of another point, raising his total points to

three and one-third and triggering a suspension upon the

accumulation of the third point. Plaintiff argues that a

genuine issue of material fact exists as to how he received

27

seven and one-third attendance points under the old

attendance policy because George, during his deposition,

could count only five and one-third points-a number

insufficient for entrance into the new point system-based

upon a spreadsheet that plaintiff gave him. However, as

previously discussed, because plaintiff's contention relies

upon a misconstruction of George's testimony, plaintiff's

attempt to manufacture a genuine issue of material fact

must fail.

-

a ~~ End Footnotes- - - - - - - - - - - - - - [##32]

‘mate

[*426] 2. Other Alleged Diabetes-Related Absences

The thrust of plaintiff's FMLA claim, per his complaint, is

that defendant unlawfully interfered with the exercise of his

FMLA rights by counting various absences that he alleges

to have been FMLA-qualifying under its "no-fault"

attendance policy and by subsequently terminating plaintiff

pursuant to that policy. Plaintiff can point to only two

instances in which he received attendance points for

absences that he allegedly, [***21] expressly informed

defendant were diabetes-related-his absences on F ebruary

16, 1996, and February 9, 1999. n13 ;

n13 Although plaintiff contends that he also improperly

accumulated points based upon certain absences due to

workers’ compensation injuries, we decline to consider this

28

contention because plaintiff has presented no argument as

to how these absences relate to and fall under the FMLA.

See Sommer, 317 F.3d at 691.

As to the first instance, plaintiff testified that, on February

16, 1996, he had [**33] informed one of the pharmacists

that he was "running late" for work because his "blood

sugar [was] acting up." An Early Leave/Late arrival form

documents this. He testified that, when he came into work

on that day, he told an assistant manager that he was having

problems with his blood sugar, and that he would have to

see a doctor. n14 A "call-off" form documents that the

reason for plaintiff's absence was because his "blood sugar

was messed up." Due to this illness, plaintiff missed work

from February 16, 1996, through February 20, 1996, with

the exception of February 19, 2000, on which plaintiff was

not scheduled to work. Plaintiff returned to work on

February 21, 1996, the day of his next scheduled shift.

After returning to work, plaintiff submitted a note from Dr.

Roemer, his family practitioner, dated [*427] February 19,

1996, that stated that plaintiff's absence from February 16th

through [***22} February 20th was from the "intestinal

flu"; it made no mention of plaintiff's diabetic condition.

nl15 Plaintiff testified that Carol Blackstone ("Blackstone"),

defendant's Benefits Manager, told plaintiff that he should

try to have the FMLA cover the absence, and gave him an

FMLA form [**34] for his doctor to fill out. n16 Plaintiff

further testified that he followed Blackstone's suggestion

even though it confused him because he did not know that

the FMLA covered the flu. Plaintiff later submitted an

29

FMLA certification form, signed by Dr. Roemer and dated

February 22, 1996, that stated that plaiatiff's absence was

due to "gastroenteritis" and that he saw plaintiff on

February 19, 1996. Defendant denied plaintiffs FMLA

certification request on the ground that plaintiff's

"gastroenteritis" did not constitute a "serious health

condition" under the FMLA.

n14 Plaintiff also testified that he went to see Dr. Roemer

on that day, February 16th, and that he was sure that Dr.

Roemer would have given him a medical note for

defendant. However, as discussed below, Dr. Roemer's note

is dated February 19th, the date which the FMLA form

states that Dr. Roemer saw plaintiff. Moreover, a "call-off"

sheet on February 19th-for his F ebruary 20th absence-states

that plaintiff had gone to a doctor on the 19th.

nl5 Under defendant's applicable attendance policy,

plaintiff, by providing this doctor's note, received only one

attendance point for these absences, which spanned four

consecutive shifts. [**35]

)

n16 Blackstone testified that, when she would learn that an

employee had been ill for three days and had received

medical treatment for the flu, she would always request

medical certification in such a situation because the

employee could have mis-communicated or misunderstood _

30

his true illness.

Even if plaintiff had given defendant timely and sufficient

notice that his February 16, 1996, absence was

diabetes-related and, thus, FMLA-qualifying, plaintiff, as a

matter of law, failed to give defendant, upon its request,

medical certification that confirmed that this absence was,

in fact, caused by plaintiff's diabetes-the condition for

which plaintiff would have given defendant the proper

notice. nl17 See [***23] 29 U.S.C. § 2613(b). In

requesting such certification, defendant discharged its duty

in seeking any additional information [*428] necessary for

the leave to fall within the FMLA. See Hammon, 165 F.3d

at 450. Because the medical certification that plaintiff

provided was insufficient on its face, the FMLA's

provisions governing an employer's request [**36] for

re-certification where it "has reason to doubt the validity of

the certification" are inapposite. 29 U.S.C. § 2613(c) and

(d) (emphasis added). Here, rather than doubting the

certification's validity, defendant accepted the certification,

including its representation that "gastroenteritis" caused

plaintiff's February 16th absence. While plaintiff testified

that he went to see Dr. Roemer, his family practitioner,

rather [***24] than Dr. Dorsey, his diabetes specialist,

because a lot of his illness had to do with the flu, and that

the flu had been activating his diabetes, making it "go out

of control at the time," there is no evidence that plaintiff

relayed this information to defendant. The FMLA does not

require an employer to be clairvoyant. n18

31

nl7 We reject plaintiff's alternative theory that this absence

was FMLA-qualifying because it involved incapacity for

more than three calendar days and plaintiff received

treatment from a healthcare provider. See C.F.R. §

825.114(a)(2). As evidence, plaintiff points to Dr. Roemer’s

note stating that plaintiff's absence from February 16th

through the 20th was due to the intestinal flu and the

FMLA certification form stating that Dr. Roemer had seen

plaintiff in his office on February 19, 1996. Thus, plaintiff's

argument implicitly rests on the theory that the intestinal flu

was a FMLA-qualifying serious health condition. To the

extent that plaintiff has preserved this argument for appeal,

it must, nevertheless, fail.

HN29To constitute a "serious health condition," the

condition must involve-along with at least a three-day

period of incapacity-treatment for that condition by a health

care provider either two or more times or at least once as

long as it results in a regimen of continuing treatment under

that provider's supervision. 29 C.F.R. § 825.114(a)(2)(i)(A)

and (B). Because plaintiff's F ebruary 19th visit to Dr.

Roemer upon which he relies constituted only one instance

of treatment, plaintiff must also demonstrate that this visit

involved a regimen of continuing treatment under Dr.

Roemer's supervision. While plaintiff testified that Dr.

Roemer had prescribed him medication for the intestinal

flu, the very FMLA certification document that plaintiff

points to as evidence states that the treatment regimen

involved only leave from work, rest, and fluids. Yet, as 29

C.F.R. § 825.114(b) makes clear, HN30"bed-rest, drinking

32

fluids, .. . and other similar activities that can be initiated

without a visit to a health care provider . . . [are]

insufficient [by themselves] to constitute a regimen of

continuing treatment." In addition, 29 C.F.R. § 825.114(c)

states that, HN3labsent arising complications, the flu is

generally not a FMLA-qualifying "serious health

condition." While one could argue that plaintiff's diabetes

was a condition complicating his flu, plaintiff testified that

the only treatment that he received for that absence was

from Dr. Roemer, who only treated him for the flu. Thus,

such a dual-condition theory would ‘ail for lack of the

requisite medical treatment "relating .o that same

condition.” 29 C.F.R. § 825.114(a)(2)(). [**37]

nl18 We note that the "call-off" sheets for February 17th and

20th of 1996, which report that plaintiff was "feeling out of

sorts" and "ili," respectively, further demonstrate the

expanse of generalized information that defendant had

concerning the reason for plaintiff's absence. -

Regarding the second instance, plaintiff testified that, on

February 9, 1999, he had told one of his co-workers that he

was leaving work early due to a problem with his insulin

pump. An Early Leave/Late Arrival form states that

plaintiff's early leave was due to a "problem with his insulin

pump.” Plaintiff neither saw a doctor nor provided a

medical confirmation of this problem from a doctor.

Plaintiff testified that, before work on February 9, 1999, his

33

blood sugar was 361 and he was not feeling well. Plaintiff

further testified that, although he gave himself a dose of

insulin via his pump, his blood sugar spiked to 500 at work

and he "was feeling really bad." According to plaintiff, he

called Dr. Dorsey from work and she advised him to go

home, disconnect the insulin pump, inject a dose of insulin

with a needle to [**38] decrease his blood sugar, and then

reinsert the insulin pump. Plaintiff testified that, while at

home, it took approximately three to four hours before his

blood sugar normalized. According to plaintiff, this

hyperglycemic episode occurred because the insulin pump

had become disconnected from his body, and he did not

have to see a doctor because he fixed the problem with the

pump.

As stated above, the critical test for substantively-sufficient

notice is whether the information that the employee

conveyed to the employer was reasonably adequate to

apprise the employer of the employee's request to take leave

for a serious [***25] health condition that rendered him

unable to perform his job. Brohm, 149 F.3d at $23; Cavin,

346 F.3d at 725 (holding that the plaintiff, as a matter of

law, had sufficiently notified his employer during his

employment that his request for unforeseeable leave was

for a FMLA-qualifying serious health condition when he

informed his employer that he had been at the hospital and

was unable to work due to an injury from a motorcycle

accident). Here, the only way that plaintiff's problem with

his insulin pump could constitute the [**39] requisite

“serious health condition" is if it were "an illness, injury,

impairment, or physical or mental condition that involves . .

. any period of incapacity . . . due to a chronic serious

health condition." 29 C.F.R. § 825.1 14(a)(2)(i1i) (defining

34

"a chronic serious health condition" as one that "(A)

Requires periodic visits for treatment by a health care

provider . . .; (B) Continues over an extended period of

time . . .; and (C) May cause episodic rather than a

continuing period of incapacity (e.g., [*429] ... diabetes .

. .)") (emphasis added). We assume arguendo that

defendant had sufficient notice that plaintiff suffered from

diabetes as a chronic health condition, and that defendant

knew that plaintiff's diabetic condition caused him to use an

insulin pump. While plaintiff testified at length about the

physical effects that he experienced due to the insulin pump

becoming disconnected from his body, plaintiff does not

claim that he relayed this information to defendant. n19

Rather, according to plaintiff, he [***26] merely told

defendant that he was having a problem with his insulin

pump. This statement, as a matter of law, could not have

reasonably [**40] apprised defendant that plaintiff's

February 9, 1999, absence was due to a "serious health

condition," as described above. It is insufficient to give rise

to an inference that plaintiff was suffering from any

physical impairment or iliness or experiencing any period

of incapacity. For all defendant knew, the "problem" with

the insulin pump simply might have been of a mechanical

or minor nature that would not have effected the pump's

effectiveness or plaintiff's health. Perhaps, for example, the

pump's battery was running low and simply needed to be

changed. Similarly, plaintiff's mere statement that he was

experiencing a problem with his insulin pump did not

reasonably apprise defendant of a condition that rendered

him unable to perform his duties. We find that plaintiff, as

a matter of law, failed to give defendant sufficient notice

that his February 9, 1999, absence was FMLA-qualifying.

35

n19 In fact, the only evidence in the record that suggests

that plaintiff might have relayed this information to

defendant is a sworn letter, dated May 24, 2000, by Paul

Nunamaker ("Nunamaker"), the pharmacist to whom

plaintiff reported his February 9, 1999, absence. In that

letter, Nunamaker stated that he knew that plaintiff was

having "problems with his blood sugar." However,

Nunamaker also stated that he excused plaintiff from work

because he believed that plaintiff "was a good judge of how

serious the problem truly was." Even construing this letter

in the light most favorable to plaintiff, plaintiff did not

reasonably apprise defendant that the problem with his

blood sugar incapacitated him or rendered him unable to

perform his duties. As Nunamaker stated, he did not know

"how serious the problem truly was," but, rather, relied on

plaintiff to determine whether it warranted him leaving

work early. Thus, for all Nunamaker or defendant knew, the

problem with the insulin pump may simply have caused

plaintiff to experience a minor fluctuation of his blood

Sugar, prompting plaintiff, out of an abundance of caution,

to want to try to repair his insulin pump to avert any

potential, substantial fluctuations of his blood sugar.

------------ End Footnotes- - - - - - - kek [**41]

C. Plaintiff's Motion for Partial Summary Judgment

Plaintiff contends that the district court abused its

discretion by failing to rule on plaintiff's motion for leave to

36

file a motion for partial summary judgment on plaintiff's

FMLA claim, which plaintiff had filed on October 30,

2001, before it granted defendant's motion for summary

judgment, which defendant had previously filed on

September 21, 2001. During a pre-trial conference, the

district court ruled that it would hold plaintiff's motion in

abeyance pending resolution of defendant's motion for

summary judgment. According to defendant, plaintiff never

objected to this ruling before the district court. On May 2,

2002, the district court granted defendant's motion for

summary judgment on all of plaintiff's [***27] claims.

Having already disposed of the entire case on its merits, the

district court never expressly ruled upon plaintiff's motion

for leave to file a partial summary judgment motion.

The district court did not err in adjudicating defendant's

motion for summary judgment before plaintiffs motion for

partial summary judgment. See Kennedy v. City of

Cleveland, 797 F.2d 297, 305 (6th [*430] Cir. 1986)

[**42] (recognizing the discretion of "the trial judge who

is charged with the responsibility . . . [of] managing his

docket and ensuring an expeditious processing of the

litigation"). This management of the motions was clearly

reasonable given that defendant's motion was filed before

plaintiff's motion and, importantly, that the resolution of

defendant's motion could have disposed of the entire

case-as it, in fact, did-while the resolution of plaintiff's

motion would have disposed of only plaintiffs FMLA

claim. Moreover, in granting defendant's motion for

summary judgment, the district court expressly found that

all of plaintiff's claims failed as a matter of law. Thus, the

district court implicitly found that plaintiffs FMLA claim

could not succeed as a matter of law, such as to warrant an

37 r

award of partial summary judgment to plaintiff on this

claim.

For the preceding reasons, we AFFIRM the district court's

grant of summary judgment to defendant on plaintiff's

federal and state claims alleging disability discrimination

and his federal claim alleging a FMLA violation.

38

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF OHIO

EASTERN DIVISION

LEE R. BRENNEMAN, CASE NO. 1:01CV1052

)

)

Plaintiff, )

)

vs- ) Judge John M. Manos

)

MEDCENTRAL HEALTH )

SYSTEM, )

)

Defendant. ) ORDER

On May 1, 2001, the Plaintiff filed this action

alleging disability discrimination under federal and state

law, and violation of the federal Family Medical leave Act

(“FMLA”). On May 2, 2002, the Court granted summary

judgment in favor of the Defendant on all counts (Docket

Nos. 60 and 61). On May 13, 2002, the Plaintiff filed a

Motion for Reconsideration (Docket No. 62). The parties

_ have fully briefed these issues.

|

For the following reasons, the motion is DENIED.

The Plaintiff relies on the following two cases for — |

relief: Williams v. Schuller International, Inc., 2002 WL

193929 (6" Cir. February 5, 2002) (unreported), and Cotler

v. Ajilon Services, Inc., 287 F.3d 593 (6" Cir.2002).

Neither cases warrants relief.

In Williams, the Plaintiff gave an alleged notice of

the need for FMLA leave about one month prior to her

termination. The Sixth Circuit concluded that issues of fact

existed as to whether the notice came sufficiently soon after

the first absence, and whether it was sufficiently detailed.

In this case, however, the Plaintiff had two

opportunities before his termination to indicate that his

final absence was due to diabetes, but he did not do so.

First, he made no mention of his diabetes on March 31,

2090, the day of his final absence. Second, he made no

mention of his diabetes at the meeting with his supervisors

ean ia he ak

on April 4, 2000, at the end of which he was terminated. It

was not until after his termination that he indicated he was

allegedly absent because of his diabetes. Williams does not

support the proposition that a post-termination notice under

these circumstances can be the basis of an FMLA claim. I

addition, the plaintiff in Williams did not have the long

history of attendance deficiencies like that present here.

Cotler also does not warrant reconsideration. In

Cotler, the Sixth Circuit affirmed summary judgment on a

claim for disability discrimination, restating existing law as

to how a disability discrimination claim must be assessed.

The Plaintiff here has not presented any evidence that

diabetes caused any, let alone a significant number, of his

227 attendance deficiencies. In addition, he cannot

overcome the fact that he admitted that he never requested

an accommodation for diabetes (Brenneman Dep. at 122.)

He also has not presented any evidence in support of the

proposition that his discharge for attendance deficiencies

was a pretext for discrimination.

On June 5, 2002, the Defendant submitted a Bill of

Costs for $1731.80 for court reporter fees and transcript

costs (Docket No. 65). In its previous opinion, however,

the Court ruled that each party shall bear its own costs. The

Court concludes that there are no grounds to reverse its

previous determination on costs. Accordingly, the Court

restates its ruling that each party shall bear its own costs.

For the foregoing reasons, the Plaintiff's Motion For

Reconsideration (Docket No. 62) is DENIED. Each party

shall bear its own costs.

IT IS SO ORDERED.

Issued: s/ John M. Manos

August 19,2002 UNITED STATES DISTRICT JUDGE

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF OHIO

~~ EASTERN DIVISION

LEE R. BRENNEMAN, CASE NO. 1:01CV1052

CASE NO. 1:01CV 1327

)

)

Plaintiff, )

)

vs- ) Judge John M. Manos

)

MEDCENTRAL HEALTH )

SYSTEM, )

)

Defendant. ) ORDER

Pursuant to the Memorandum of Opinion issued in

the above-captioned cases this date, the Motion For

Summary Judgment of Defendant MedCentral Health

Sytem (Docket No. 23) is GRANTED. Accordingly, these

actions are hereby dismissed with prejudice, each party to

bear its own costs.

IT IS SO ORDERED.

Issued: s/ John M. Manos

May 2, 2002 UNITED STATES DISTRICT JUDGE

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF OHIO

EASTERN DIVISION

LEE R. BRENNEMAN, CASE NO. 1:01CV1052

CASE NO. 1:01CV1327

)

)

Plaintiff, )

)

vs- ) Judge John M. Manos

)

MEDCENTRAL HEALTH )

SYSTEM, )

) MEMORANDUM

Defendant. ) OF OPINION

On May 1, 2001, and June 1, 2001, respectively,

Lee R. Brenneman, plaintiff, filed these actions against

MedCentral Health System, defendant. The Plaintiff

alleges employment discrimination and related claims

under both federal and Ohio law. On September 21, 2001,

the Defendant filed a Motion For Summary Judgment

(Docket No. 23). The parties have fully briefed these

issues.

_For the following reasons, the motion is

GRANTED.

I. FACTS

The Defendant operates three hospitals in Ohio and

employs approximately 2400 people. (Hildreth Aff. at {

1.)' The plaintiff began his employment with the

Defendant in 1973 as a Pharmacy helper, and was promoted

to Pharmacy technician in 1975. He remained at this

position until th termination of his employment on April 4,

2000. (Brenneman Dep. at 31-35.)

The Plaintiff testified at deposition that he was

diagnosed with diabetes in 1968. Although he occasionally

1. The affidavit of Beth Hildreth, the Defendant’s Director of

Human Resources, is attached as Exhibit E to the Defendant’s

Appendix of Exhibits submitted in support of its motion.

2. Pertinent portions of the transcript of the Plaintiff's

deposition are attached as Exhibit F to the Defendant’s

Appendix of Exhibits. Pertinent exhibits to the Plaintiff's

deposition transcript are attached as Exhibit G to the

Defendant’s Appendix of Exhibits.

2

has episodes of hypoglycemia, his condition is, for the most

part, effectively controlled with insulin. During bouts of

hypoglycemia, he can experience seizures, shock, and/or

lightheadedness and incoherence. His condition has

worsened with age, and he has used an insulin pump since

1998 to control his condition. He also regulates his diet,

exercises, and monitors his blood sugar level throughout

the day using a glucometer. (Brenneman Dep. at 59-68.)

During the course of his employment, the Plaintiff

has had substantial attendance deficiencies. According to

his employment records, during the last five years of his

employment he was absent 193 times and arrived late an

additional 34 times. > These dates do not include vacation

3. The Plaintiff disputes the exact number of absences, but

admits that he was absent over a hundred times. However, the

Court has reviewed the employment records submitted with the

Defendant’s motion, particularly those attached to the affidavit

of Brian George. Such records support the Defendant’s

calculation.

and similar approved days off. As stated above, the

Plaintiff has diabetes. However, the absences primarily

relate to other medical problems, including six work-related

injuries and other general illnesses. He was granted leave

pursuant to the Family Medical Leave Act on five

ee but not for diabetes. The Defendant claims that

the Plaintiff never requested medical leave for diabetes, and

its position is supported by the employment records.

(Forchione Aff. at J] 2-4; George Aff. at § 2.)

Pursuant to the Defendant’s attendance policy, the

Plaintiff was disciplined numerous times for his attendance

deficiencies. The disciplinary actions included various

4. Lee Ann Forchione is currently a Human Resources

Representative for the Defendant, and has experience with its

attendance policies and workers compensation claims

administration. Her affidavit is attached as Exhibit D to the

Defendant’s Appendix of Exhibits. Brian George is the

Defendant’s Assistant Director of Pharmacy Services and was

one of the Plaintiff’‘s supervisors at the time of his discharge.

His affidavit is attached as Exhibit B to the Defendant’s

Appendix of Exhibits.

verbal and written warnings, and suspensions in 1996 and

1999. Each disciplinary form provides an opportunity for

the employee to respond, but the Plaintiff did not respond

to any of the disciplinary actions. On March 31, 2000, the

Plaintiff was absent again triggering another suspension.

Under the Defendant’s attendance policy, any employee

who receives three suspensions within five years is subject

top termination. (Brenneman Dep. at 46-58, Ex. 1; George

Aff. at {9 3-4.)

During his deposition, the Plaintiff could only

specifically recall to instances in which he allegedly

informed the Defendant that an attendance problem was

due to diabetes. The first instance was February 16, 1996.

He testified that he informed a pharmacist in his department

that he was “running late” for work because his blood sugar

was “messed up”. However, the doctor’s note he submitted

upon return indicates “intestinal flu” as the reason for

absence. The second instance occurred on February 9,

1999. He testified that he told his co-workers that he was

leaving due to a problem with his insulin pump. He did not

see a doctor not provide a written medical confirmation

from a doctor. He cannot recall any other instance in which

he informed the Defendant that diabetes was the cause of an

absence. (Brenneman Dep. at 79-93, Exs. 2-5.)

As to the absence on March 31, 2000, the Plaintiff

called to inform the Defendant that he would not be at

work. He did not, however, indicate at that time that his

diabetes was the reason for the absence. On April 4, 2000,

the Plaintiff met with his supervisors regarding his

attendance problems, and again he did not reference his

a,

diabetes as the reason for his latest absence. At the

conclusion of the meeting, he was terminated pursuant to

the Defendant’s attendance policy because he was subject

to his third suspension in five years. (Brenneman Dep. at

93-94, 100-06.)

On April 6, 2000, the Plaintiff attended a final exit

interview with Bruce Engle, the Defendant’s Vice President

of Human Resources. This meeting was the first time the

Plaintiff raised the issue of his diabetes by presenting a note

from his doctor stating that hypoglycemia caused the

absence on March 31. He first stated that he had spent the

entire day in bed. Engle, however, had been informed that

Plaintiff went to see his workers compensation doctor the

same in for reasons unrelated to his diabetes. When Engle

confronted the Plaintiff with this information, the Plaintiff

acknowledged that he had not spent the entire day in bed.

Based on the results of the exit interview, the termination

was made final. (Brenneman Dep. at 95-96, 111-15, Exs. 7

and 8; Hildreth Aff. at J 6.)

On May 1, 2001, the Plaintiff filed his first action

alleging disability discrimination and related claims under

federal and Ohio law. On June 1, 2001, the Defendant

removed a second action from state court, in which the

Plaintiff alleges additional claims arising out of the same

events, including a violation of the Family Medical Leave

Act.

On November 1, 2001, the Plaintiff filed his Second

Amended Complaint essentially consolidating the two

actions. He asserts the following six counts: (1) disability

discrimination in violation of the Americans With

Disabilities Act (“ADA”); (2) disability discrimination in

violation of Ohio Revised Code (“O.R.C.”) Chapter 4112;

(3) promissory estoppel under Ohio law; (4) intentional

infliction of emotional distress under Ohio law; (5)

violation of the federal Family Medical Leave Act

(“FMLA”); and (6) wrongful discharge against public

policy under Ohio law. The Defendant has moved for

summary judgment as to all claims.°

Tl. LAW AND ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c).

The party moving for summary judgment bears the

initial burden of production under Rule 56. The burden

may be satisfied by presenting affirmative evidence that

negates an element of the non-movant’s claim or by

demonstrating “an absence of evidence to support the non-

moving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

5. Although the Defendant filed its motion before the Plaintiff

filed the Second Amended Complaint, the arguments and

reasoning in the motion cover all remaining claims.

9

317, 325 (1986).

If the movant meets this burden, the non-movant

must “set forth the specific facts showing that there is a

genuine issue for trial.” Fed.R.Civ.P. 56(e). The

substantive law identifies which specific facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

To avoid summary judgment, the non-movant must “make

a showing sufficient to establish the existence of an element

essential to the party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 US. at 329.

“The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 256 (citing Adickes v. Kress & Co.,

398 U.S. 144, 158-59 (1970). However, the non-movant

must “do more than simply show that there is some

metaphysical doubt as to material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

10

(1986). “[T]he mere existence of some alleged factual

disputes between the parties will not defeat an otherwise

properly supported motion” for summary judgment.

Anderson, 477 U.S. at 247-48.

B. Discrimination Claims

Counts I and II respectively allege disability

discrimination under the federal ADA and O.R.C. Chapter

4112. Under O.R.C. Chapter 4112, Ohio courts apply the

same standard for assessing employment discrimination

claims as that used by federal courts under the federal anti-

discrimination statutes. Dews v. A.B. Dick Co., 231 F.3d

1016, 1020 n.2 (6" Cir. 2000); Mitchell v. Toledo Hospital,

964 F.2d 577, 582 (6 Cir. 1992); Plumbers & Steamfitters

Joint Apprenticeship Committee v. Ohio Civil Rights

Commission, 421 N.E.2d 128, 131-32 (Ohio 1981).

A claim for discrimination can be proven either by

direct evidence of discrimination, or by circumstantial

11

evidence pursuant to the McDonnell Douglas standard.

The parties recognize that the McDonnell Douglas analysis

must be applied here. Under this analysis, the Plaintiff

must first establish a prima facie case of discrimination by

showing that: (1) he is a member of a protected group; (2)

he was eeriener to an adverse employment decision; (3) he

was qualified for the position at issue; and (4) he was

replaced by, or treated less fairly than, a person outside of

the protected group. Reeves v. Sanderson Plumbing

Products, Inc., 120 S.Ct. 2097, 2106 (2000), citing,

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6"

Cir. 1996); Tally v. Bravo Pitino Restaurant, Ltd., 61 F.3d

1241, 1246 (6" Cir. 1995).

Specifically, with respect to a claim for disability

discrimination, the elements of the prima facie case are

defined as follows: (1) the Plaintiff is”disabled” as that

12

term is defined in the ADA and accompanying regulations;

(2)he was subjected to an adverse employment decision; (3)

he was qualified for the position at issue, eitheSr with or

without a reasonable accommodation; (4) the Defendant

knew or had reason to know of the disability; and (5) he

was replaced by, or treated less fairly than, a non-disabled

person. Plant v. Morton, 212 F.3d 929, 936 (6" Cir. 2000);

Martin v. Barnesville Exempted Village School District

Board of Education, 209 F.3d 931, 934 (6" Cir.), cert.

denied, 531 U.S. 992 (2000); Cehrs v. Northeast Ohio

Alzheimer’s Research Center, 155 F. 3d 775 , 779

(6" Cir. 1998).

If the Plaintiff can establish a prima facie case of

discrimination, the Defendant must produce evidence of a

legitimate, non-discriminatory business reason for the

adverse employment action. This burden is merely one of

production and is satisfied is the Defendant offers

13

admissible evidence by which a trier of fact can conclude

that the Plaintiff was treated as alleged for a non-

discriminatory business reason. If the Defendant meets the

burden of production, to prevail the Plaintiff must prove

that the asserted reason is a pretext for discrimination.

Reeves, 120 S.Ct. at 2106; St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 507-08 (1993); Manzer v. Diamond

Shamrock Chemicals, Inc., 29 F.3d 1078, 1081-84 (6" Cir.

1994); Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6"

Cir. 1992).

The Defendant argues that the Plaintiff was not

qualified because he could not satisfy its attendance

requirements. Generally, an employee who cannot satisfy

attendance requirements is not qualified and thus not

protected under the ADA. Gantt v. Wilson Sporting Goods

Co., 143 F. 3d 1042, 1047 (6" Cir. 1998).; Hypes v. First

Commerce Corp., 134 F.3d 721, 726-27 (5" Cir. 1998). An

14

attendance policy that is uniformly applied cannot be the

bass of an ADA claim even if it results in the termination of

a disabled employee. Gantt, 143 F.3d at 1046. Here, the

Defendant has a uniform attendance policy by which points

ar assessed for absences and partial absences. The policy

imposes increasing levels of discipline leading up to

susOpension. An employee whose points result in a third

suspension in five years is subject to termination. The

plaintiff was terminated under this policy. His inability to

satisfy basic attendance requirements renders him

unqualified.

In Cehrs, supra, the Sixth Circuit held that under

certain circumstances, medical leave, even for an extended

period of time, might be a “reasonable accommodation”

that should be afforded a disabled employee under the

ADA. Cehrs, 155 F.3d at 781-83; see also Walsh v. United

Parcel Service, 201 F.3d 718, 726-27 (6" Cir. 2000)(request

15

for medical leave under Cehrs must be reasonable). Cehrs,

however, is not applicable to the Plaintiffs case.

First, the Plaintiff never requested any

accommodation for his diabetes. The ADA requires that an

employee request an accommodation because the employer

does not have to speculate as to the extent of the disability,

or the need for an accommodation. Gantt, 143 F.3d at 1046-

47. At deposition, the Plaintiff admitted that he never

requested an accommodation. Indeed, he testified that his

co-workers were understanding about his needs to test his

blood sugar and change his insulin pump. (Brenneman Dep.

at 122.) Absent a request, the Defendant was not obligated

to afford any accommodation.

Second, there is no evidence that the diabetes was

the source of the Plaintiff's attendance deficiencies. The

employment records demonstrate that in the last five years

of his employment, he was absent 193 times and late

16

another 34 times. Of all these, he could specifically recall

only two that allegedly were caused by his diabetes. He

testified that on February 16, 1996, he called work to

indicate that he was “running late” because his blood sugar

was “messed up”. The medical note for the incident,

however, indicates that intestinal flu was the reason for the

lateness and makes no mention of diabetes. As to the

second incident, he allegedly left early on February 9, 1999

because of a problem with his insulin pump. However, he

did not provide written confirmation of any medical

problem. Accordingly, the employment records do not

demonstrate that these two incidents were caused by

diabetes. Furthermore, even assuming that these two

incidents in fact stemmed from diabetes, iia is no

evidence in the record connecting any of the other 225

incidents to his diabetes. Therefore, he cannot base his

claim on any alleged refusal to accommodate him by

17

granting medical leave for his diabetes.

The Court concludes that the Plaintiff was not

qualified as a matter of law. All evidence shows that he

was terminated pursuant to the Defendant’s uniform

attendance policy because his attendance deficiencies

resulted te three suspensions in five years. Furthermore,

there is no evidence that the employment deficiencies

stemmed from his diabetes. Because he is not qualified, he

cannot establish a prima facie case of disability

discrimination. Accordingly, summary judgment is

warranted as to Counts I and I].°

6. The Defendant also asserts that the Plaintiff cannot establish

a prima facie case because he is not disabled under the ADA.

The Defendant argues that the Plaintiff is nor disabled because

his diabetes generally is controlled by insulin, diet, and exercise.

See Sutton v. United Airlines, Inc., 119 S.Ct.2139, 2143

~ (1999)(wether a person is disabled is determined accounting for

measures that mitigate the condition). At deposition, however,

he testified that his diabetes has worsened with age, and that he

still occasionally suffers from bouts of hypoglycemia that may

cause seizures, shock, or incoherence. Because he does not offer

evidence sufficient to raise a genuine issue of fact as to other

elements of this discrimination claims, the Court need not

18

Even assuming that the Plaintiff can establish a

prima facie case, the Defendant still is entitled to summary

judgment on the discrimination claims. The Defendant has

produced evidence essentially asserting the following

legitimate, non-discriminatory business reasons for the

Plaintiffs termination: (1) his termination was warranted

pursuant to the Defendant’s attendance policy because his

attendance deficiencies resulted in three suspensions in five

years; and (2) his apparent dishonesty during the final exit

interview with Engle. To avoid summary judgment,

therefore, the Plaintiff must present evidence sufficient to

establish a genuine issue for trial as to whether the asserted

reasons comprise a pretext for discrimination.

Pe TENN pe eT ee tee OR ee et en ee ee ="

Pretext may be proven by showing that the reasons

proffered for the adverse employment decision (1) have no

basis in fact, (2) did not actually motivate the discharge, or;

address whether he is disabled as defined under the ADA.

19

(3) were insufficient to motivate the discharge. A

Plaintiff's mere denial of the Defendant’s proffered reasons

is insufficient to avoid summary judgment. Godfredson v.

Hess & Clark, Inc., 173 F.3d 365,; Manzer, 29 F.3d at

1084. However, evidence that the asserted reasons are false

overcomes a motion for summary judgment because the

trier of fact may (but is not compelled to) infer the iin

fact of discrimination from the falsity of the employer’s

explanation. Reeves, 120 S.Ct. at 2108-09, citing, Hicks,

509 US. at 511.

The plaintiff has not presented any evidence of

pretext. As stated above, the Defendant has a uniform

attendance policy comprising a point system by which

points are assigned for each absence or partial absence.

Under this system, the Plaintiff had 193 absences and 34

late arrivals in the I’ve years before his termination. Based

on his own deposition testimony, at most only two of these

20

incidents were related to his diabetes. On March 31, 2000,

he was absent again, but at that time did not reference his

diabetes. This absence triggered his third suspension in

five years, which by the terms of the attendance policy,

warrants termination. Because his termination stems from

application of the attendance policy, there is no basis to

conclude that his poor attendance record is a pretext for

discrimination. —5

Despite the terms of the attendance policy, the

plaintiff had the opportunity to explain his final absence. —

On April 4, 2000, he met-with his supervisors, but never

mentioned his diabetes. As a result, he was terminated.

Because the Plaintiff did not indicate the absence was due

to his diabetes, there is no basis to conclude that the

Defendant discriminated against him.

On April 6, 2000, he had his final exit interview

with Engle. This meeting is the first time the Plaintiff

21

_— Ore pated lhe

indicates that diabetes caused the absence on march 31. He

informed Engle that he had been I bed all day suffering

from hypoglycemia, and provided a doctor’s note

Supporting this claim. Engle, however, was aware that the

Plaintiff had gone to his workers compensation doctor.

Indeed, the Plaintiff testified that the appointment was i

the morning at about 10:30, contradicting his statement to

Engle that he had to Stay in bed all day. According to the

Plaintiff's own deposition testimony, after several attempts

at prodding him for the truth, Engle explicitly confronted

him about the appointment, after which he admitted it.

Although the exit interview was only a week after the

absence, the Plaintiff claimed to have forgotten about the

appointment. Engle apparently did not believe him, and the

termination was made final. (Brenneman Dep. at 95, 114-

15.) Nothing about the exit interview supports an inference

of pretext. If anything, the interview further demonstrates

22

the legitimacy of the termination.

For the foregoing reasons, the Defendant is entitled

to summary judgment on Counts I and I] for disability

discrimination.

C. EMLA

In Count V, the Plaintiff assets that his termination

violates the FMLA. This Act generally provides that

eligible employees are entitled to up to twelve weeks of

medical leave during any twelve month period because of a

serious health condition that renders the employee unable to

perform essential job functions. 29 U.S.C § 2612(a). The

employee, however, must request or give notice to the

employer of a qualifying reason for the medical leave.

Brohm v. JH Properties, Inc., 149 F.3d 517, 523 (6" Cir.

1998). The notice need not explicitly invoke the FMLA,

but must give the employer sufficient information to

reasonably conclude that an FMLA-qualifying event has

23

occurred. Brohm, 149 F.3d at 523; Hammon v. DHL

Airways, Inc., 165 F.3d 441, 450-51 (6" Cir. 1999).

As stated above, the Plaintiff only recalls two —

incidents prior to his termination in which he allegedly

missed work because of his diabetes- February 16, 1996

and February 9, 1999. Both these incidents are described

above. As to the first date, his doctor’s note indicates only

that he had “intestinal flu”, which would not qualify for

leave under the FMLA. As to the second date, he only

informed his co-workers generally that he was having

problems with his insulin pump. He did not see a doctor,

nor provide any additional explanation or confirmation of

his illness. The Court concludes that there was insufficient

notice under the FMLA a matter of law.

His conduct with respect to his final absence, on

March 31, 2000, likewise does not comport with the

requirements of the FMLA. On the day of the absence, he

24

made no mention of his diabetes. Even assuming he was

too ill to do so on that day, he also did not reference his

diabetes when he met with his supervisors on April 4, 2000.

He was terminated at the end of that meeting. Once an

employee is terminated, he is no longer an “eligible

employee” under the FMLA. Brohm, 149 F.3d at 523.

The Plaintiff did not contact his doctor to obtain a

written medical explanation until April 5, 2000, after his

termination. The Plaintiff, however, had not seen or

spoken to his treating physician on the day of his absence.

He visited his workers compensation doctor- and had a

morning appointment- which belies his contention that he

was too ill to work. He presented his medical excuse to

Engle at the exit interview on April 6, 2000. The Court

concludes that his post-termination explanation is

insufficient to raise and fact issues under the FMLA.

For the foregoing reasons, the Defendant is entitled

to summary judgment on Count V.

D. R ining State Law Clai

Counts III, IV, and VI assert related claims under

Ohio common law. Count II asserts a claim for

promissory estoppel, which requires proof of the following

elements: (1) there was a promise, clear and unambiguous

in its terms; (2) reliance by the party to whom the promise

is made; (3) the reliance was reasonable and foreseeable;

and (4) injury caused by the reliance. Healey v. Republic

Powdered Metals, Inc., 619 N.E.2d 1035, 1037 (Ohio App.

1992). When the claim is based on a termination from

employment, there must have been a clear promise of

continued employment. Wing v. Anchor Media, Ltd. of

Texas, 59 Ohio St.3d 108, 110 (1991); Thatcher v,

Goodwill Industries of Akron, 690 N.E.2d 1320, 1330

(Ohio App. 1997).

26

The Plaintiff relies on the employee handbook

issued by the Defendant. The handbook, however, |

explicitly states that nothing in the handbook can be

construed as a guarantee of continued employment.

Therefore, the first element of promissory estoppel is not

satisfied. The Plaintiff responds that the handbook states

that employment will not be terminated for any reason

prohibited by law. Because the Court concludes that the

Plaintiff's termination did not violate any laws, this |

argument lacks merit. ;

Count IV asserts a claim for intentional infliction of

emotional distress, which requires proof of the following

elements: (1) the Defendant intended to cause the Plaintiff

serious emotional distress; (2) the Defendant’s conduct was

extreme and outrageous; and (3) the Defendant's conduct

proximately caused the Plaintiff severe emotional distress.

Phung v. Waste Management, Inc., 71 Ohio St.3d 408, 411

27

(1994). The Couri’s analysis of the evidence with respect

to the other counts mandates the conclusion that no genuine

issue exists for trial as to any of these elements.

Count VI asserts a Claim for wrongful discharge

against public policy, which requires proof of the following

elements: (1) a clear public policy exists and is manifested

in a state or federal constitution, Statute, administrative

regulation, or common law; (2) dismissing employees

under the circumstances at issue would jeopardize the

public policy; (3) the Plaintiffs dismissal was motivated by

conduct related to the public policy; and (4) the employer

lacked an overriding legitimate business justification for the

dismissal. In short form, these elements commonly are

referred to as clarity, jeopardy, Causation, and lack of

overriding justification. Kulch v. Structural Fibers, Inc., 78

Ohio St.3d 134, 151( 1997), cert. denied, 522 U.S. 1008

(1997); see also Painter v. Graley, 70 Ohio St.3d 377, 384-

28

85 (1994); Greeley v. Miami Valley Maintenance

Contractors, Inc., 49 Ohio St.3d 228, 233-35 (1990);

Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 375 (6"

Cir. 1999) (applying Ohio law).

The third and fourth elements are dispositive.

These elements are similar to the “pretext” element under

the discrimination claims. The Court concluded above that

the Plaintiff's termination essentially resulted from a

straight-forward application of the Defendant’s uniform

attendance policy. Furthermore, the Defendant did not act

in violation of the anti-discrimination statutes or FMLA.

For these reasons, there is no genuine issue of fact on the

wrongful discharge claim.

Il. CONCLUSION

For the foregoing reasons, the Motion For Summary

Judgment of Defendant MedCentral Health System (Docket

No. 23) is GRANTED. Accordingly, these actions are

29

hereby dismissed with prejudice, each party to bear its own

costs.

IT IS SO ORDERED.

Issued: s/ John M. Manos

May 2,2002 UNITED STATES DISTRICT JUDGE

30