RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Brenneman v. MedCentral Health No. 02-3623
ELECTRONIC CITATION: 2004 FED App. 0121P (6th Cir.)
File Name: 04a0121p.06 Appellant. Michael N. Chesney, Michael J. Frantz, FRANTZ
WARD, Cleveland, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
LEE BRENNEMAN, X KENNEDY, Circuit Judge. Plaintiff Lee Brenneman
- (“plaintiff”) filed suit against his former employer
Plaintiff-Appellant, MedCentral Health System (“defendant”), alleging disability
-
- No. 02-3623 discrimination in violation of the federal Americans with
v. - 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.
MED CENTRAL HEALTH -
SYSTEM , §§ 2601 et seq. 1 Plaintiff appeals the district court’s award
- of summary judgment in favor of defendant on these claims.
Defendant-Appellee. - For the reasons explained below, we AFFIRM the district
- court’s grant of summary judgment to defendant.
N
Appeal from the United States District Court I. Background
for the Northern District of Ohio at Cleveland.
No. 01-01052—John M. Manos, District Judge. The record reveals the following facts. Plaintiff Brenneman
worked in defendant MedCentral Health System’s Pharmacy
Argued: March 18, 2004 Department for approximately twenty-seven years. Although
he began his employment in 1973 as a Pharmacy Helper, he
Decided and Filed: April 26, 2004 received a promotion to Pharmacy Technician in 1975.
Plaintiff remained in this position throughout the rest of his
Before: KENNEDY, ROGERS, and COOK, Circuit employment. Plaintiff was diagnosed with diabetes mellitus
Judges.
1
_________________ Plaintiff also alleged state-law claims of prom issory esto ppe l,
intentional infliction of emotional distress, and wrongful discharge
COUNSEL contrary to pub lic polic y, on which the district court, in a single order,
also awarded defendant summ ary jud gment. W hile plaintiff, per his
notice of appeal, purports to appe al the district court’s entire summary
ARGUED: Natalie F. Grubb, Medina, Ohio, for Appellant. judgment order, plaintiff has presented no argument on these state-law
Michael N. Chesney, FRANTZ WARD, Cleveland, Ohio, for claims in his briefs and, thus, has failed to preserve such claims for
Appellee. ON BRIEF: Natalie F. Grubb, Medina, Ohio, for app eal. See Som mer v. Da vis, 317 F.3d 686, 691 (6th Cir. 2003) (holding
that the appellants abandoned an issue for purposes of appeal where they
failed to argue it in their briefs).
1
No. 02-3623 Brenneman v. MedCentral Health 3 4 Brenneman v. MedCentral Health No. 02-3623
in 1968. Although he sometimes has episodes of related suspension within five years. Thus, at the conclusion
hypoglycemia, in which he can experience seizures, shock, of the meeting, plaintiff was terminated.
and/or lightheadedness and incoherence, plaintiff generally
controls his condition with insulin. Plaintiff also controls his On April 6, 2000, plaintiff requested and attended a final
diabetes by regulating his diet, exercising, and monitoring his exit interview with Bruce Engle (“Engle”), defendant’s Vice
blood sugar level throughout the day using a glucometer. President of Human Resources. Plaintiff, for the first time,
Since 1998, plaintiff, whose diabetes has worsened with age, mentioned that his March 31st absence was due to his
has used an insulin pump to control this condition. diabetes. Specifically, plaintiff presented a note from Dr.
Cynthia Dorsey, his diabetes specialist, stating that the
During the course of his employment, plaintiff had absence was due to an extended episode of diabetes-related
substantial attendance deficiencies. According to his hypoglycemia. Defendant, nevertheless, finalized plaintiff’s
employment records, plaintiff had 193 unapproved absences termination.2
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 2
work-related injuries and other general illnesses. Defendant Defendant contends that plaintiff’s apparent dish onesty during this
granted plaintiff FMLA leave on five occasions, none of exit interview afforded an additional ground upon which to terminate
plaintiff, pursuant to its general disciplinary policy. Twice during the
which was for diabetes. Per its attendance policy, defendant meeting, Engle asked plaintiff what he had done on March 31st, the day
disciplined plaintiff numerous times for his attendance of his final absence. Twice plaintiff answered that he had been sick and
problems. For example, plaintiff received a number of verbal had remained at home in bed all day. Engle, however, had learned that
and written warnings and suspensions. Although each plaintiff had seen his workers’ compensation doctor on that same day for
disciplinary form affords the employee an opportunity to non-diabetes-related reasons. When Engle confronted plaintiff with this
information, plaintiff admitted that he ha d not, in fact, spent the entire day
respond to the disciplinary action, plaintiff never once in bed. Plaintiff told Engle that he had simply fo rgotten about the
protested the imposition of discipline or mentioned his app ointment. Plaintiff testified that he had sufficiently recovered from his
diabetes. alleged hypoglycemic attack to drive himself approximately thirty-six
miles round-trip to his workers’ compensation doctor’s appointment at
On March 31, 2000, plaintiff informed defendant that he 10:30 a.m. Plaintiff further testified that he was, nevertheless, not well
“wasn’t doing well and . . . wouldn’t be in” that day. At that enough to return to work. De fendant concedes, how ever, tha t this
apparent misrepresentation by plaintiff was not a factor in its decision to
time, he did not mention that his absence was in any way terminate plaintiff; rather, acco rding to defendant, it terminated plaintiff
related to his diabetic condition. On April 4, 2000, plaintiff pursuant to its attendance policy. Thus, while this post hoc, additional
met with his supervisors, Thomas Arkwright (“Arkwright”), ground for plaintiff’s termination may be relevant to the calculation of
the Director of Pharmacy Services, and Brian George any damages, it is irrelevant to the determination of whether defendant
(“George”), the Assistant Director of Pharmacy Services, improperly terminated plaintiff under the A DA or the FM LA in the first
instance. See McKen non v. Nashville B ann er Pu bl’g Co., 513 U.S. 352,
regarding his attendance deficiencies. During this meeting, 361-62 (1995) (explaining that, when an employer discovers an
however, plaintiff never referenced his diabetes as the reason emp loyee’s wrongdoing after improperly terminating the employee on
for his latest absence. Under defendant’s attendance policy, other grounds, “as a general rule . . . neither reinstatement nor front pay
this absence triggered another suspension of plaintiff. is an appropriate remedy . . . . The beginning point in the . . . formulation
Moreover, pursuant to that policy, this suspension triggered of a remedy should be calculation of backpay from the date of the
unlawful discharge to the date [that] the new information was
plaintiff’s termination because it was his third attendance- discovered”).
No. 02-3623 Brenneman v. MedCentral Health 5 6 Brenneman v. MedCentral Health No. 02-3623
II. Analysis position remained open.” Hammon v. DHL Airways, Inc.,
165 F.3d 441, 449 (6th Cir. 1999). Once a plaintiff
We review the district court’s order granting summary establishes a prima facie case of disability discrimination, the
judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 burden of production shifts to the employer to articulate a
(6th Cir. 1999). Summary judgment is proper “if the legitimate, non-discriminatory reason for the adverse action
pleadings, depositions, answers to interrogatories, and against plaintiff. Brohm v. JH Properties, Inc., 149 F.3d 517,
admissions on file, together with affidavits, if any, show that 520-21 (6th Cir. 1998) Once the employer discharges this
there is no genuine issue of material fact and that the moving burden of production, the employee must demonstrate that the
party is entitled to a judgment as a matter of law.” Fed. R. proffered reason was, in fact, a pretext for unlawful disability
Civ. P. 56(c). A “material” fact is one “that might affect the discrimination. Id. at 521. The plaintiff always retains the
outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S. ultimate burden of persuasion. Plant v. Morton Int’l, Inc.,
242, 248 (1986). A “genuine” issue exists if “the evidence is 212 F.3d 929, 936 (6th Cir. 2000).
such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 255. We must accept the non- Because neither party has argued that an action for
moving party’s evidence, and draw all justifiable inferences handicap discrimination under Ohio law entails a different
in his favor. Id. “We may affirm a decision of the district legal analysis than that for disability discrimination under the
court if correct for any reason, including one not considered ADA, and because Ohio case law tends to suggest that it
below.” See United States Postal Serv. v. Nat’l Ass’n of entails the same legal analysis as that under the ADA, we will
Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003). analyze plaintiff’s state and federal discrimination claims
under Ohio Revised Code § 4112 and the ADA, respectively,
A. Disability Discrimination solely under the ADA. See Plant, 212 F.3d at 938-39 (noting
that Ohio case law seems to support the proposition that the
The ADA proscribes discrimination “against a qualified ADA analysis applies to a Ohio claim of disability
individual with a disability because of the disability of such discrimination, and assuming so for purposes of its analysis
individual in regard to job application procedures, the hiring, because the parties have not argued otherwise); Martin v.
advancement, or discharge of employees, employee Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d
compensation, job training, and other terms, conditions, and 931, 934 n.2 (6th Cir. 2000) (holding that “[b]oth federal and
privileges of employment.” 42 U.S.C. § 12112. Under the Ohio disability discrimination actions require the same
ADA, an employer’s denial of employment opportunities to analysis”); City of Columbus Civil Serv. Comm’n v. McGlone,
an employee with a disability may constitute such unlawful 697 N.E.2d 204, 206-07 (Ohio 1998) (holding that, to
discrimination if the denial is based upon the employer’s need establish a prima facie case of handicap discrimination under
“to make reasonable accommodation to the physical or mental Ohio law, which is “similar” to the ADA, a plaintiff must
impairments of the employee or applicant.” 42 U.S.C. show that: 1) he was handicapped; 2) the employer took an
§ 12112 (b)(5)(B) (1991). To establish a prima facie case of adverse action against him, at least in part, because of his
discrimination under the ADA, a plaintiff must demonstrate handicap; and 3) the plaintiff, “though handicapped, can
that: “(1) he is disabled; (2) he is otherwise qualified for the safely and substantially perform the essential functions of the
position with or without reasonable accommodation; (3) he job in question,” and noting that Ohio courts may look to the
suffered an adverse employment decision; (4) his employer ADA for guidance in the interpretation of Ohio law). But see
knew or had reason to know of his disability; and (5) his Wooten v. City of Columbus, 632 N.E.2d 605, 611 (Ohio Ct.
No. 02-3623 Brenneman v. MedCentral Health 7 8 Brenneman v. MedCentral Health No. 02-3623
App. 1993) (holding that Ohio disability discrimination law of law, would not have been qualified to perform the essential
is “at least as broad, if not broader, in scope than” the ADA) functions of the Pharmacy Technician position due to his
(emphasis added). excessive absenteeism. See Gantt v. Wilson Sporting Goods
Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (“An employee who
The district court granted summary judgment for defendant cannot meet the attendance requirements of the job at issue
on plaintiff’s state and federal disability discrimination claims cannot be considered a ‘qualified’ individual protected by the
on the ground that plaintiff had failed to establish a prima ADA.”); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
facie case of such discrimination; specifically, the district 155 F.3d 775, 781-82 (6th Cir. 1998) (holding that medical
court held that plaintiff was unqualified due to his inability to leave may be a reasonable accommodation under the ADA,
satisfy defendant’s basic attendance requirements.3 We agree there is no presumption that uninterrupted attendance is an
with the district court that plaintiff, as a matter of law, has essential job requirement, and that the employer must
failed to establish that he was otherwise qualified for the demonstrate that such leave would be unreasonable and
position of Pharmacy Technician with or without reasonable impose an undue burden upon it, but noting that the plaintiff,
accommodation. Plaintiff’s disability discrimination claims nevertheless, bears the burden of proving that she was
hinge upon defendant’s failure to grant plaintiff the qualified for the position with such accommodation); Hayes
reasonable accommodation of FMLA leave for his diabetes- v. Cleveland Pneumatic Co., 634 N.E.2d 228, 232 (Ohio Ct.
related absences and defendant’s ultimate termination of App. 1993) (holding that plaintiff, for purposes of his Ohio
plaintiff under its attendance policy based upon its assessment handicap discrimination claim, failed as a matter of law to
of points for these diabetes-related absences. demonstrate that he was capable of performing one of the
essential functions of his job–regular attendance–due to his
However, even if defendant had granted plaintiff medical excessive absenteeism). The district court found that, based
leave for those absences which plaintiff specifically alleges upon George’s affidavit and its supporting documentation,
were diabetes-related–absences on February 16, 1996; plaintiff had been absent 193 times and had arrived late or left
February 9, 1999; and March 31, 2000–,4 plaintiff, as a matter 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
3 upon which George relied in calculating plaintiff’s attendance
As to plaintiff’s failure to establish a prim a facie case, the district
court also held that plaintiff could not ba se his disability discrimination points. Rather, according to plaintiff, George calculated the
claim on any alleged refusal by defend ant to accommodate plaintiff by attendance points based upon a four-page spreadsheet, which
granting him leave for his diabetes because plaintiff had never requested plaintiff presented him with and questioned him about during
any such accommoda tion 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 o f disability
discrimination, he, nevertheless, failed to dem onstrate that de fendant’s not constitute a request for leave as an accom mod ation for his diabetes.
proffered legitimate reasons for plaintiff’s termination were a pretext for W hile plaintiff claimed that he would often relay this explanation when
disab ility discrimination. he was experiencing diabetes-related illnesses, this statement would not
4
have reaso nably apprised d efendant that the absences were related to a
Although plaintiff argues that he should have received medical leave disab ility rather than some general illness. See Ga ntt v. Wilson Sporting
for certain other diabetes-related absences, absences for which he simp ly Goods Co., 143 F.3d 1042, 10 46-47 (6th Cir. 1998) (“The employer is not
informed defendant that he was “ill” or “not feeling well,” we decline to required to speculate as to the extent of the employee’s disability or the
consider these absences in our analysis since, as a matter of law, they do employee’s need or desire for an accommodation.”).
No. 02-3623 Brenneman v. MedCentral Health 9 10 Brenneman v. MedCentral Health No. 02-3623
his deposition. Moreover, plaintiff underscores that George, this document details only plaintiff’s absences for which
during his deposition, counted only five and one-third defendant granted him formal leaves of absence. In any
attendance points from that spreadsheet–an amount event, plaintiff seems to concede that he has been absent on
insufficient for defendant’s entrance into the new attendance 109 occasions since 1995.
point system, under which defendant was ultimately
terminated.5 However, George testified that the referenced According to Arkwright’s affidavit, regular attendance is an
spreadsheet was a document that he had prepared for an essential function of the Pharmacy Technician position, which
unemployment compensation hearing after plaintiff’s entails preparing and delivering medications to hospital
termination. George further testified that he would not have patients, ordering, receiving, and stocking medications, and
used this spreadsheet in calculating plaintiff’s attendance posting charges to patients’ accounts. Clearly, plaintiff could
points, and that he had used other documents, such as point not perform these duties when absent from defendant’s
reports and call-off sheets, that were not before him during his premises. Arkwright further testified that plaintiff’s excessive
deposition. Thus, plaintiff, in attempting to manufacture a absences placed a great strain on the Pharmacy Department.
genuine issue of material fact, misconstrued George’s Specifically each time plaintiff was absent, Arkwright would
testimony; George never testified–nor does any record have to either call in an unscheduled employee to cover
evidence show–that he relied on this spreadsheet in plaintiff’s shift or else reassign plaintiff’s duties to employees
calculating plaintiff’s attendance points. Alternatively, who were already scheduled to work. Consequently,
plaintiff argues that a document entitled “Leave of Absence according to Arkwright, plaintiff’s excessive absenteeism
History,” which provides that plaintiff, since 1995, had 43 increased both employees’ workloads and the department’s
absences from non-work-related injuries and 66 absences pay-roll expenses and decreased the Pharmacy Department’s
from work-related injuries, refutes defendant’s contention that morale. While Arkwright tried to carry a number of
plaintiff had 227 absences. However, as defendant points out, 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
5
Plaintiff argues that defendant’s attendance policy was neither prejudice defendant whatsoever. Arkwright’s testimony
uniform nor un iformly applied because each department had it own shows otherwise. In sum, plaintiff, as a matter of law, has
attendance guidelines. Beth Hildreth (“Hildreth”), defendant’s Human failed to demonstrate that he was qualified to perform the
Resources Manage r, testified that each department, including the essential functions of the Pharmacy Technician position, even
Pharmacy Departm ent, had its own attendance gu idelines and that these
could deviate as to the threshold that the employees must pass to enter if he had received medical leave as a reasonable
into the system-wide attendance point system. However, Hildreth accommodation for his diabetes; rather, the record is replete
testified that the system-wide attendance point system uniformly applied with evidence of plaintiff’s excessive absenteeism, which
to each employee who entered that system. Defendant has provided rendered him unqualified for that position.6 Thus, the district
evidence of three, non-disabled employees in the Nursing Department
whom it terminated for excessive absenteeism under its new attendance
point system. P laintiff does not dispute this evidence. R ather, p laintiff
seems to argue that his accumulation of seven and one-third points so as 6
to enter the attend ance point system in the first instance was pursuan t to In so holding, we need not and do not express any opinion upon
a non-uniformly applied attendance policy. Because plaintiff has offered whether plaintiff has satisfied the other elements of a prima facie claim
neither evidence of nor any meaningful argume nt on the alleged disparate of disability discrimination or whether he has sufficiently demonstrated
application of the P harmacy D epartment’s attendance guidelines, we that defendant’s proffered non-discriminatory reasons are pretexts for
decline to co nsider such an argument. disab ility discrimination.
No. 02-3623 Brenneman v. MedCentral Health 11 12 Brenneman v. MedCentral Health No. 02-3623
court properly granted defendant summary judgment on FMLA claim cannot lie where he requested medical leave and
plaintiff’s disability discrimination claims under the ADA and received medical attention for his serious health condition
Ohio law. only after the termination of his employment); Hammon, 165
F.3d at 451 (holding that a FMLA claim does not lie where
B. FMLA Violation the plaintiff failed to notify his employer of his qualifying
condition and to request leave for such condition during his
The FMLA affords an eligible employee up to twelve employment, but, rather, only did so after his employment had
weeks of leave within a twelve month period when the ended). However, the eligible employee need not expressly
employee suffers from “a serious health condition that makes mention the FMLA as the source of his right to request such
the employee unable to perform the functions of . . . [his] leave. Hammon, 165 F.3d at 451. Rather, the critical test for
position,” among other qualifying reasons. 29 U.S.C. substantively-sufficient notice is whether the information that
§ 2612(a)(1)(D). The term “serious health condition” the employee conveyed to the employer was reasonably
signifies “an illness, injury, impairment, or physical or mental adequate to apprise the employer of the employee’s request to
condition that involves . . . (A) inpatient care in a hospital, take leave for a serious health condition that rendered him
hospice, or residential medical care facility or (B) continuing unable to perform his job. Brohm, 149 F.3d at 523; Cavin v.
treatment by a health care provider.” 29 U.S.C. § 2611(11); Honda of Am. Mfg., Inc., 346 F.3d 713, 725 (6th Cir. 2003)
see 29 C.F.R. § 825.114 (defining “inpatient care in a (holding that the plaintiff, as a matter of law, had sufficiently
hospital, hospice, or residential medical care facility” and notified his employer during his employment that his request
“continuing treatment by a health care provider”). 29 C.F.R. for unforeseeable leave was for a FMLA-qualifying serious
§ 825.114(a)(2)(iii) provides that a “serious health condition health condition when he informed his employer that he had
involving continuing treatment by a health care provider been at the hospital and was unable to work due to an injury
includes . . . [a]ny period of incapacity or treatment for such from a motorcycle accident).
incapacity due to a chronic serious health condition.” It
further defines a “chronic serious health condition [a]s one The eligible employee must also give the employer this
which: (A) Requires periodic visits for treatment by a health substantive notice within the requisite time frame. When the
care provider . . . ; (B) Continues over an extended period of eligible employee’s leave for his serious health condition is
time (including recurring episodes of a single underlying foreseeable based upon planned medical treatment, he must
condition); and (C) May cause episodic rather than a “provide the employer with not less than 30 days’ notice,
continuing period of incapacity (e.g., asthma, diabetes, before the date the leave is to begin.” See 29 U.S.C.
epilepsy, etc.).” Id. (emphasis added). § 2612(e)(2)(B) (excluding a situation in which “the date of
treatment requires leave to begin in less than 30 days” and
To invoke the FMLA’s protection for this qualifying requiring the eligible employee, in such a situation, to
reason, the eligible employee, during his employment, must “provide such notice as is practicable”). In contrast, when the
request leave and give the employer notice that he is approximate time of the needed leave is unforeseeable, the
requesting such leave for a serious health condition that eligible employee should give the employer notice of the need
renders him unable to perform his position’s duties. See for the leave “as soon as practicable under the facts and
Brohm, 149 F.3d at 523 (holding that, because the FMLA circumstances of the particular case.” 29 C.F.R. § 825.303(a).
requires the eligible “employee . . . [to] provide notice and a “It is expected that an employee will give notice to the
qualifying reason for requesting the leave,” the plaintiff’s employer within no more than one or two workings days of
No. 02-3623 Brenneman v. MedCentral Health 13 14 Brenneman v. MedCentral Health No. 02-3623
learning of the need for leave, except in extraordinary February 9, 1999; and March 31, 2000–under its “no-fault”
circumstances . . . [in which] such notice is not feasible.” Id. attendance policy and by subsequently terminating plaintiff
pursuant to that policy. The district court granted summary
Once an employer receives sufficient notice that the eligible judgment to defendant on plaintiff’s FMLA claim on the
employee is requesting leave for a FMLA-qualifying reason, ground that plaintiff, as a matter of law, failed to give
the employer bears the burden to gather any additional defendant sufficient notice of a FMLA-qualifying reason for
information necessary for the leave to fall within the FMLA. these alleged diabetes-related absences.7
Hammon, 165 F.3d at 450. An employer may require the
eligible employee to provide, in a timely manner, certification 1. March 31, 2000, Absence
by a health care provider. 29 U.S.C. § 2613(a). Where the
leave is due to a serious health condition of the employee that On appeal, plaintiff contends that the district court erred in
prevents him from performing his job, the requested granting defendant summary judgment because plaintiff had
certification is sufficient if it states the date upon which the timely and sufficiently notified defendant of his need for
serious health condition began, the condition’s probable FMLA leave for his absence on Friday, March 31, 2000, the
duration, the appropriate medical facts regarding the latest absence triggering his termination under defendant’s
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). 7
Before the district court, defendant argued that any FMLA claim
based upon plaintiff’s absences on February 16, 1996, and February 9,
The FMLA renders it “unlawful for any employer to 1999, was time-barred because plaintiff had received susp ensions based
interfere with, restrain, or deny the exercise of or the attempt upon these absences and that these material adverse actions fell outside of
to exercise any right” that it affords. 29 U.S.C. § 2615(a)(1). the applicable statute-of-limitations period. See 29 U.S.C. § 2617(c)(1)
Furthermore, any violation of the FMLA–or of the regulations and (2) (stating that an action may be brought under the FMLA “not later
than 2 years after the d ate of the last event constituting the alleged
implementing it–constitutes such unlawful interference. violation for which the action is brough t[,]” except that an actio n for a
29 C.F.R. § 825.220(b) (referencing an employer’s refusal to willful violation may be brought within 3 years after such time); Butler v.
authorize FMLA leave as an illustration of unlawful Owens-Brockway Plastic Prod., 199 F.3d 314, 317 (6th Cir. 2000)
interference). The FMLA also renders it “unlawful for any (holding that a plaintiff’s terminatio n claim was no t time-barred sim ply
employer to discharge or in any other manner discriminate because it was based upon certain time-barred assessments of points for
absences where the termination was the first material adverse action, and
against any individual for opposing any practice made illustrating such a material adverse action with probation, termination, or
unlawful” by the Act. For example, an employer may neither a failure to reinstate). Plaintiff countered that the “continuing violations”
use an employee’s “taking of FMLA leave as a negative theory applies so as to toll the statute of limitatio ns here. See Dixon v.
factor in [an] employment action[]” against that employee nor Anderson, 928 F.2d 2 12 (6th Cir. 1991). Defendant, in response, argued
count an employee’s FMLA leave under its “no fault” that there is no precedential support for the proposition that the
“continuing violations” theory applies to the FMLA, as it does to anti-
attendance policies. 29 C.F.R. § 825.220(c). discrimination law. The district court did not exp ressly determine this
statute-of-limitations issue when it held that plaintiff, as a matter of law,
Plaintiff’s complaint alleges that defendant unlawfully had failed to give defendant sufficient notice that his absences on
interfered with plaintiff’s exercise of his rights under the February 16, 1996 , and February 9, 1999, were FM LA-qualifying. In any
FMLA by counting various absences that he alleges were event, defendant, by neither raising it nor presenting any argument on it
FMLA-qualifying–absences on February 16, 1996; in its brief, has abandoned the statute-of-limitations argum ent on appeal.
See Som mer v. Da vis, 317 F.3d 68 6, 691 (6th Cir. 2003).
No. 02-3623 Brenneman v. MedCentral Health 15 16 Brenneman v. MedCentral Health No. 02-3623
attendance policy. On Friday, March 31st, plaintiff called him unable to perform his job.9 See Brohm, 149 F.3d at 523;
defendant to inform it that he would not be at work. In 29 C.F.R. § 825.303(b) (noting that an employee’s
particular, he stated that he “wasn’t doing well and . . . spokesperson, such as a spouse, may give the employer the
wouldn’t be in today.” At that time, he did not mention that required notice if “the employee is unable to do so
his absence was in any way related to his diabetic condition. personally”). However, plaintiff, as a matter of law, failed to
Although plaintiff worked on Saturday and Sunday, April 1st give defendant notice, even if it were substantively sufficient,
and 2nd, respectively, he made no further mention of the within the necessary time frame for unforeseeable leave.10
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 9
Plaintiff also argues that a genuine issue of material fact exists as to
diabetes as the reason for his latest absence.8 Under whether he had given defendant sufficient notice when he called in on
defendant’s attendance policy, this absence triggered both March 31st and simply stated that he “wa sn’t doing well and . . . wouldn’t
plaintiff’s suspension and his termination because it was his be in today.” In support, plaintiff relies on Spangler v. Fed. Home Loan
third attendance-related suspension within five years. On Bank of Des Moines, 278 F.3d 84 7 (8th Cir. 2002). In Spangler, the
Eighth Circuit held that a genuine issue of material fact regarding notice
April 5th, plaintiff’s wife informed Engle that plaintiff had existed because the defendant employer knew that the plaintiff suffered
been absent on March 31st due to a hypoglycemic episode, from depression, that she had needed FM LA leave for depression in the
and that she had attended to him all night due to that episode. past, and knew that her latest absence was from “depression again.” Id.
On April 6, 2000, plaintiff requested and attended a meeting at 852-53. Here, plaintiff argues that defendant knew that plaintiff has
with Engle. Plaintiff, for the first time, mentioned that his diabetes a nd that plaintiff had FMLA-qualifying, diabetes-related
absences on February 16, 1996 , and February 9, 1999–absences for which
March 31st absence was due to his diabetes. Specifically, plaintiff contends de fendant unlawfully penalized him. Unlike in
plaintiff presented a note from Dr. Dorsey that stated that Spangler, however, plaintiff did not advise defendant that his March 31st
“severe hypoglycemia due to diabetes” caused the absence absence was related to a serious health condition–here, diabetes.
and that this absence was, thus, FMLA-qualifying. Mo reover, plaintiff’s bare statem ent that he was unwell would not have
reaso nably apprised defendant that his absence was FMLA -qualifying,
The information that plaintiff gave defendant–via his wife’s given plaintiff’s long history of diverse physical maladies, both work-
related and non-work-related. Likewise, plaintiff’s assertion that he
statement to Engle or Dr. Dorsey’s note–may have been would habitually state only that he was “ill” or “not feeling well” when
sufficient to convey to defendant that plaintiff’s March 31st he was experiencing a diabetes-related illness is unpersuasive. T hus, even
absence was due to a serious health condition that rendered 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 o f material fact as to
whether plaintiff’s “call-in” gave defendant sufficient notice that his
March 3 1st absence was FML A-qualifying.
8 10
Plaintiff argues that he did not mention his diabetes during the Ap ril To the extent that defendant argue s that his notice was temporally
4th termination meeting because he was never asked why he had been sufficient because he met the time requirement for providing the
absent on March 31st. However, this argument is not persuasive. Given employer–upon its reque st–of m edica l certification to supp ort a FMLA-
that his supervisors were expressly terminating plaintiff based, in part, qualifying request for leave, such an argument is misplaced . See 29
upon this absence, a reasonable person in plaintiff’s position would have U.S.C. § 2613; 29 C.F.R. § 825.311(b). Rather, the issue is whether
referenced the reason necessitating that absence in an attempt to avert the plaintiff provided defendant with sufficient notice that his request for
termination. leave was for a FMLA-qualifying condition in the first instance.
No. 02-3623 Brenneman v. MedCentral Health 17 18 Brenneman v. MedCentral Health No. 02-3623
First, plaintiff failed to give defendant notice “within no the physical effects of his hypoglycemic episode, he was
more than one or two workings days of learning of the need physically unable to inform defendant that his March 31st
for leave.” 29 C.F.R. § 825.303(a). Defendant did not absence was due to that diabetes-related illness. In support,
receive notice from either plaintiff’s wife or Dr. Dorsey’s plaintiff relies upon Dr. Dorsey’s letter. In that letter, Dr.
letter on or before April 2nd, the second working day after Dorsey stated that she believed that plaintiff had been unable
plaintiff learned of the need for the March 31st absence. to explain or to recognize that he was suffering from “severe
Plaintiff argues that, although he worked on April 1st and hypoglycemia due to diabetes” when he called in on March
2nd, he was not required to give notice on or before April 2nd 31st to report his absence because he had suffered from an
because Saturday and Sunday, the 1st and 2nd of April extended period of hypoglycemia, which often causes
respectively, are not normal working days for physicians. “prolonged physical symptoms, including headache, difficulty
However, the applicable regulation imposes no qualification thinking and concentrating, and hypothermia.” However,
that only the normal working days of physicians be counted plaintiff testified that he had “stabilized and everything was
in determining the timeliness of an employee’s notice. See id. fine” by the time that he had returned to work on April 1st.
To the extent that plaintiff is implying that he needed to see Thus, plaintiff was physically able to give defendant
Dr. Dorsey to be able to give defendant the required sufficient notice on or before April 2nd, even if he were
substantive notice, we fail to see how Dr. Dorsey possessed physically unable to do so on March 31st.
any more information pertaining to whether plaintiff’s March
31st absence was due to a serious health condition rendering Plaintiff also argues that, even though defendant knew or
him unable to work than what plaintiff himself possessed.11 had reason to know that he was a diabetic, defendant failed to
While Dr. Dorsey may have informed plaintiff that the FMLA advise him that the FMLA could cover diabetes-related
might cover the absence and provided medical certification to absences, even those involving only episodic incapacity.
support any such claim, plaintiff need not have specifically Plaintiff testified that he would often report a diabetes-related
mentioned the FMLA nor provided medical certification to absence by merely stating that he was “not doing well” and
meet his initial burden of giving defendant the requisite without expressly mentioning his diabetes because defendant
notice. See Hammon, 165 F.3d at 451; 29 U.S.C. § 2613; 29 had never informed him that the FMLA could cover such an
C.F.R. § 825.311(b). absence. Plaintiff further testified that he did not think that
mentioning the diabetes-related cause of the March 31st
In addition, no extraordinary circumstances existed to absence would have made any difference because he had
render it unfeasible for plaintiff to have given defendant the received attendance points for previous absences that he had
necessary notice on or before April 2, 2000, the second advised defendant were diabetes-related. Thus, plaintiff
working day following plaintiff’s March 31st absence. See 29 argues that, due to defendant’s alleged failure to inform
C.F.R. § 825.303(a). Plaintiff seems to argue that, because of 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
11
In fact, plaintiff testified that he neither spoke with nor saw Dr. testified that he attempted to get medical certification from
Dorsey on M arch 3 1, 20 00, fo r his diab etic condition. Rather, plaintiff Dr. Dorsey for his March 31st absence only after he learned
first saw Dr. Dorsey regarding his March 31st hypoglycemic episode on from his wife, on April 5th, that the FMLA could have
April 5th, and Dr. Dorsey’s letter was based upon a reading of plaintiff’s
blood glucometer from the day of the absence. covered his diabetes-related absences. According to
No. 02-3623 Brenneman v. MedCentral Health 19 20 Brenneman v. MedCentral Health No. 02-3623
plaintiff’s wife, after she told Engle, on April 5th, that 2. Other Alleged Diabetes-Related Absences
plaintiff’s March 31st absence was due to his diabetes, Engle
informed her that plaintiff could have taken all of his The thrust of plaintiff’s FMLA claim, per his complaint, is
diabetes-related absences under the FMLA. However, as the that defendant unlawfully interfered with the exercise of his
record makes clear and as he acknowledged in his deposition, FMLA rights by counting various absences that he alleges to
plaintiff, over the course of his employment, received several have been FMLA-qualifying under its “no-fault” attendance
informational notices from defendant specifying that the policy and by subsequently terminating plaintiff pursuant to
FMLA may cover diabetes as a chronic health condition, that policy. Plaintiff can point to only two instances in which
whether for episodic or continuing incapacity. Plaintiff he received attendance points for absences that he allegedly,
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 issue of material fact over whether the plaintiff’s discharge “was delayed
pending resolution of the grievance [process] under the CBA , and thus
defendant’s part. The FMLA does not require defendant to whether the employer-employee relationship continued for purposes of
foresee that plaintiff would not have read the many notices FMLA eligibility during the grievance process). Plaintiff also argues that
that it had sent regarding the FMLA’s coverage and, thus, his termina tion was not yet final on April 4th beca use, accord ing to
either to force plaintiff to read those notices or to convey their Hilbreth, she and Engle retained authority to halt the termination.
content to him verbally. Contrary to plaintiff’s assertion, his Because we hold, however, that no reasonable jury could find that
plaintiff was not required to give the requisite notice on or before Ap ril
alleged lack of notice concerning the FMLA’s coverage of 2, 2000, and that plaintiff, in fact, gave the necessary no tice within this
diabetes does not absolve him of his failure to advise time frame, any issues o f fact concerning any notice after April 4th are
defendant that his March 31st absence was diabetes-related on imma terial.
or before April 2, 2000. In sum, we find that plaintiff failed Second, we reject plaintiff’s argument that a genuine issue of material
to give defendant the requisite notice that his March 31st fact exists as to whether plaintiff had accumulated eno ugh points to
warrant termination. As of December 19, 1999, plaintiff had accumulated
absence was FMLA-qualifying in a timely fashion.12 seven and one-third attendance p oints under the old attendance p olicy.
According to the new attend ance policy, plaintiff’s seven and one-
third points converted into two and one-third p oints. Plaintiff’s March 31,
12
2000, absence resulted in the accumula tion of another po int, raising his
First, in so holding, we need not and do not express any opinion total points to three and one-third and triggering a suspension upon the
upon whether plaintiff was an “eligible employee” for purposes of the accumulation of the third point. Plaintiff argues that a genuine issue of
F M LA after his termination on April 4, 2000. Plaintiff contends that material fact exists as to how he received seven and one-third attendance
genuine issues of material fact exist as to whether: 1) his discharge was points under the old attendance p olicy because George, during his
delayed pending a grievance process, which ended in June of 2000; deposition, could count only five and one-third points–a number
2) whethe r his employm ent relationship continued for purposes of FMLA insufficient for entrance into the new point system–based up on a
eligibility during that grievance; and 3) whether plaintiff gave sufficient spreadsheet that plaintiff gave him. However, as previously discussed,
notice for his March 31, 2000, absence d uring his employment because plaintiff’s contention relies up on a m isconstruction of George’s
relationship. See Biermann v. Aluminum Co. of Am., No. 3-98-CV-20159, testimony, plaintiff’s attempt to manufacture a genuine issue of material
2000 WL 33362002, at *8 (S.D. Iowa Jan. 21, 2000) (finding a genuine fact must fail.
No. 02-3623 Brenneman v. MedCentral Health 21 22 Brenneman v. MedCentral Health No. 02-3623
expressly informed defendant were diabetes-related–his February 20th was from the “intestinal flu”; it made no
absences on February 16, 1996, and February 9, 1999.13 mention of plaintiff’s diabetic condition.15 Plaintiff testified
that Carol Blackstone (“Blackstone”), defendant’s Benefits
As to the first instance, plaintiff testified that, on Manager, told plaintiff that he should try to have the FMLA
February 16, 1996, he had informed one of the pharmacists cover the absence, and gave him an FMLA form for his
that he was “running late” for work because his “[b]lood doctor to fill out.16 Plaintiff further testified that he followed
sugar [was] acting up.” An Early Leave/Late arrival form Blackstone’s suggestion even though it confused him because
documents this. He testified that, when he came into work on he did not know that the FMLA covered the flu. Plaintiff
that day, he told an assistant manager that he was having later submitted an FMLA certification form, signed by Dr.
problems with his blood sugar, and that he would have to see Roemer and dated February 22, 1996, that stated that
a doctor.14 A “call-off” form documents that the reason for plaintiff’s absence was due to “gastroenteritis” and that he
plaintiff’s absence was because his “[b]lood sugar was saw plaintiff on February 19, 1996. Defendant denied
messed up.” Due to this illness, plaintiff missed work from plaintiff’s FMLA certification request on the ground that
February 16, 1996, through February 20, 1996, with the plaintiff’s “gastroenteritis” did not constitute a “serious health
exception of February 19, 2000, on which plaintiff was not condition” under the FMLA.
scheduled to work. Plaintiff returned to work on February 21,
1996, the day of his next scheduled shift. After returning to Even if plaintiff had given defendant timely and sufficient
work, plaintiff submitted a note from Dr. Roemer, his family notice that his February 16, 1996, absence was diabetes-
practitioner, dated February 19, 1996, that stated that related and, thus, FMLA-qualifying, plaintiff, as a matter of
plaintiff’s absence from February 16th through 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.17 See
15
Under defendant’s applicable attendance policy, plaintiff, by
providing this doctor’s note, received only one attendance p oint for these
absence s, which spanned four consecutive shifts.
13
Although plaintiff contends that he also improperly accumulated 16
points based upon certain absences d ue to workers’ com pensation injuries, Blackstone testified that, when she would learn that an employee
we decline to consider this contention because plaintiff has presented no had been ill for three days and had received medical treatment for the flu,
argument as to how these absences relate to and fall under the FMLA. she would always request medical certification in such a situation because
See Som mer, 317 F.3d at 691. the employee could have mis-communicated or misunderstood his true
illness.
14
Plaintiff also testified that he went to see Dr. R oem er on that day, 17
February 16th, and that he was sure that Dr. Roemer would have given W e reject plaintiff’s alternative theory that this absence was
him a medical note for defendant. However, as discussed below, Dr. FM LA-qualifying because it involved incapacity for more than three
Roemer’s note is dated February 19th, the date which the FMLA form calendar days and plaintiff received treatment from a healthcare provider.
states that Dr. Roemer saw plaintiff. Moreover, a “call-off” sheet on See C.F.R. § 825.11 4(a)(2). As evidence, plaintiff points to Dr. Roemer’s
February 19th–for his February 20th absence–states that plaintiff had note stating that plaintiff’s absence from February 16th through the 20th
gone to a doctor on the 19th. was due to the intestinal flu and the FMLA certification form stating that
No. 02-3623 Brenneman v. MedCentral Health 23 24 Brenneman v. MedCentral Health No. 02-3623
29 U.S.C. § 2613(b). In requesting such certification, than Dr. Dorsey, his diabetes specialist, because a lot of his
defendant discharged its duty in seeking any additional illness had to do with the flu, and that the flu had been
information necessary for the leave to fall within the FMLA. activating his diabetes, making it “go out of control at the
See Hammon, 165 F.3d at 450. Because the medical time,” there is no evidence that plaintiff relayed this
certification that plaintiff provided was insufficient on its information to defendant. The FMLA does not require an
face, the FMLA’s provisions governing an employer’s request employer to be clairvoyant.18
for re-certification where it “has reason to doubt the validity
of the certification” are inapposite. 29 U.S.C. § 2613(c) and Regarding the second instance, plaintiff testified that, on
(d) (emphasis added). Here, rather than doubting the February 9, 1999, he had told one of his co-workers that he
certification’s validity, defendant accepted the certification, was leaving work early due to a problem with his insulin
including its representation that “gastroenteritis” caused pump. An Early Leave/Late Arrival form states that
plaintiff’s February 16th absence. While plaintiff testified plaintiff’s early leave was due to a “problem with his insulin
that he went to see Dr. Roemer, his family practitioner, rather 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 blood sugar was
361 and he was not feeling well. Plaintiff further testified that,
Dr. Roemer had seen plaintiff in his office on February 19, 1996. Thus, although he gave himself a dose of insulin via his pump, his
plaintiff’s argum ent imp licitly rests on the theo ry that the intestinal flu
was a FM LA-q ualifying serious health condition. To the extent that
blood sugar spiked to 500 at work and he “was feeling really
plaintiff has preserved this argument for appeal, it must, nevertheless, fail. bad.” According to plaintiff, he called Dr. Dorsey from work
and she advised him to go home, disconnect the insulin pump,
To constitute a “serious health condition,” the condition must inject a dose of insulin with a needle to decrease his blood
involve–along with at least a three-day period of incapacity–treatment for sugar, and then reinsert the insulin pump. Plaintiff testified
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, while at home, it took approximately three to four hours
that provider’s supervision. 29 C.F.R. § 825 .114(a)(2)(i)(A) and (B). before his blood sugar normalized. According to plaintiff,
Because plaintiff’s February 19th visit to Dr. Roemer upo n which he this hyperglycemic episode occurred because the insulin
relies constituted only o ne instance of treatment, plaintiff must also pump had become disconnected from his body, and he did not
dem onstrate that this visit involved a regimen of continuing treatment have to see a doctor because he fixed the problem with the
under Dr. Roemer’s supervision. While plaintiff testified that Dr. Roemer pump.
had presc ribed him medica tion 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 stated above, the critical test for substantively-sufficient
as 29 C.F.R. § 825 .114(b) makes clear, “bed -rest, drinking fluids, . . . and notice is whether the information that the employee conveyed
other similar activities that can be initiated without a visit to a health care to the employer was reasonably adequate to apprise the
provider . . . [are] [in]su fficient [by the mselves] to constitute a regimen employer of the employee’s request to take leave for a serious
of continuing treatment.” In addition, 29 C.F.R. § 825.114(c) states that,
absent arising com plicatio ns, the flu is generally not a FMLA -qualifying
“serious health cond ition.” W hile one cou ld argue that plaintiff’s diabetes
was a condition comp licating his flu, p laintiff testified that the only 18
treatment that he received for that abse nce was from Dr. R oem er, who W e note that the “call-off” sheets for February 17th and 20th of
only treated him for the flu. Thus, such a dual-condition theory w ould fail 1996, which report that plaintiff was “feeling out of sorts” and “ill,”
for lack of the requisite medical treatment “relating to that same respe ctively, further demonstrate the expanse of generalized information
condition.” 29 C .F.R. § 825 .114 (a)(2)(i). that defendant had concerning the reason for plaintiff’s absence.
No. 02-3623 Brenneman v. MedCentral Health 25 26 Brenneman v. MedCentral Health No. 02-3623
health condition that rendered him unable to perform his job. merely told defendant that he was having a problem with his
Brohm, 149 F.3d at 523; Cavin, 346 F.3d at 725 (holding that insulin pump. This statement, as a matter of law, could not
the plaintiff, as a matter of law, had sufficiently notified his have reasonably apprised defendant that plaintiff’s
employer during his employment that his request for February 9, 1999, absence was due to a “serious health
unforeseeable leave was for a FMLA-qualifying serious condition,” as described above. It is insufficient to give rise
health condition when he informed his employer that he had to an inference that plaintiff was suffering from any physical
been at the hospital and was unable to work due to an injury impairment or illness or experiencing any period of
from a motorcycle accident). Here, the only way that incapacity. For all defendant knew, the “problem” with the
plaintiff’s problem with his insulin pump could constitute the insulin pump simply might have been of a mechanical or
requisite “serious health condition” is if it were “an illness, minor nature that would not have effected the pump’s
injury, impairment, or physical or mental condition that effectiveness or plaintiff’s health. Perhaps, for example, the
involves . . . [a]ny period of incapacity . . . due to a chronic pump’s battery was running low and simply needed to be
serious health condition.” 29 C.F.R. § 825.114(a)(2)(iii) changed. Similarly, plaintiff’s mere statement that he was
(defining “a chronic serious health condition” as one that experiencing a problem with his insulin pump did not
“(A) Requires periodic visits for treatment by a health care reasonably apprise defendant of a condition that rendered him
provider . . . ; (B) Continues over an extended period of time unable to perform his duties. We find that plaintiff, as a
. . . ; and (C) May cause episodic rather than a continuing matter of law, failed to give defendant sufficient notice that
period of incapacity (e.g., . . . diabetes . . . )”) (emphasis his February 9, 1999, absence was FMLA-qualifying.
added). We assume arguendo that defendant had sufficient
notice that plaintiff suffered from diabetes as a chronic health C. Plaintiff’s Motion for Partial Summary Judgment
condition, and that defendant knew that plaintiff’s diabetic
condition caused him to use an insulin pump. While plaintiff Plaintiff contends that the district court abused its
testified at length about the physical effects that he discretion by failing to rule on plaintiff’s motion for leave to
experienced due to the insulin pump becoming disconnected file a motion for partial summary judgment on plaintiff’s
from his body, plaintiff does not claim that he relayed this FMLA claim, which plaintiff had filed on October 30, 2001,
information to defendant.19 Rather, according to plaintiff, he 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
19
In fact, the only evidence in the record that suggests tha t plaintiff
would hold plaintiff’s motion in abeyance pending resolution
might have relayed this information to defendant is a sworn letter, dated of defendant’s motion for summary judgment. According to
May 24, 2000, by Pau l Nunamaker (“N unam aker” ), the pharma cist to defendant, plaintiff never objected to this ruling before the
whom plaintiff reported his February 9, 1999, absence. In that letter, district court. On May 2, 2002, the district court granted
Nunamaker stated that he knew that plaintiff was having “problems with defendant’s motion for summary judgment on all of plaintiff’s
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 app rise for all Nunamaker or d efendant knew, the problem with the insulin pump
defendant that the problem with his blood sugar incapacitated him or may simply have caused plaintiff to experience a minor fluctuation of his
rendered him unable to perform his duties. As N unam aker stated, he did blood sugar, p rompting p laintiff, out of an abundance of caution, to want
not know “how serious the problem truly was,” but, rather, relied on to try to repair his insulin pump to avert any potential, substantial
plaintiff to determine w hether it warranted him leaving work early. Thus, fluctuations of his blood sugar.
No. 02-3623 Brenneman v. MedCentral Health 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 plaintiff’s motion for
partial summary judgment. See Kennedy v. City of Cleveland,
797 F.2d 297, 305 (6th Cir. 1986) (recognizing the discretion
of “the trial judge who is charged with the responsibility . . .
[of] managing his docket and [e]nsuring 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 plaintiff’s 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 plaintiff’s FMLA claim could not
succeed as a matter of law, such as to warrant an 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.