Plant v. Morton Intl Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0165P (6th Cir.) File Name: 00a0165p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  PHILIP R. PLANT,  Plaintiff-Appellant,   No. 99-3445 v.  > MORTON INTERNATIONAL,   Defendant-Appellee.  INC.,

 1 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 97-03234—Donald C. Nugent, District Judge. Argued: February 4, 2000 Decided and Filed: May 12, 2000 Before: MERRITT and* MOORE, Circuit Judges; HEYBURN, District Judge.

* The Honorable John G. Heyburn II, United States District Judge for the Western District of Kentucky, sitting by designation.

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

_________________ COUNSEL ARGUED: Charles A. Kennedy, KENNEDY, CICCONETTI & KNOWLTON, Wooster, Ohio, for Appellant. Timothy L. Zix, BATTLE & MILLER, Cleveland, Ohio, for Appellee. ON BRIEF: Charles A. Kennedy, KENNEDY, CICCONETTI & KNOWLTON, Wooster, Ohio, for Appellant. Timothy L. Zix, Colleen P. Battle, BATTLE & MILLER, Cleveland, Ohio, for Appellee. _________________ OPINION _________________ KAREN NELSON MOORE, Circuit Judge. Philip Plant appeals the district court’s grant of summary judgment to his former employer Morton International, Inc. (“Morton”) on his Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and state-law discrimination and wrongful termination claims. The district court found that, because Plant could not have returned to work within the twelve weeks allotted by the FMLA, he could not make out a successful claim under that statute. Concluding that Morton failed to give sufficient notice to Plant that his FMLA leave time had begun to run, we disagree with the district court and hold that Plant might have been entitled to an additional twelve weeks of leave under the FMLA. However, we agree with the district court that Plant has come forward with insufficient evidence to allow a reasonable jury to conclude that he was disabled within the meaning of the relevant statutes during the time period in question, and therefore that Morton was entitled to summary judgment on the ADA and state-law claims. For these reasons, we AFFIRM in part and REVERSE in part the judgment of the district court, and we REMAND for further proceedings.

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

I. BACKGROUND Plaintiff-appellant Philip R. Plant began working for defendant-appellee Morton International, Inc. as an applied color systems operator in the Orrville, Ohio plant in 1989. He was an hourly employee whose duties mainly involved generating paint color matches. In February of 1995, Plant was promoted to the position of intermix coordinator, which was a salaried position involving additional responsibilities such as research and development and customer service, including travel to remote customer sites. That same month, Plant was involved in a motor vehicle accident while working at a site in North Carolina. Plant was taken to a local hospital, diagnosed with contusions and strain, and released the same day. His diagnosis has never changed. Plant followed up with treatment from Dr. Owen W. Logee, M.D., of Wooster, Ohio. Except for being called in to work sporadically when he was especially needed, Plant was absent from work until September of 1995, when Dr. Logee released him to return with the restriction that he should work only four-hour days and avoid lifting more than fifteen pounds and bending or stooping repeatedly. Plant was eventually released to work six-hour days and then eight-hour days. During his entire absence from work, Plant continued to receive his full salary. To accommodate Plant’s medical condition, Morton assigned him to data entry duties upon his return. Plant claimed that he was no longer able to drive to customer sites, as he had previously done as intermix coordinator, due to the pain medication he had to take; he did, however, maintain some phone contact with customers. Furthermore, Plant could not fully perform the duties of his previous position as intermix coordinator without working eight-hour days. Eventually, Plant began to find that his back condition was aggravated by sitting for long periods at his data entry job. Shortly thereafter, Plant was switched to the position of lab technician, which required mostly standing, with the possibility of sitting to take breaks. The job also required

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

some bending, walking, occasional light lifting and stair 310 syllabus para. 3. However, the court emphasized that its climbing. Plant does not claim that these duties were outside reasons for so holding depended on its understanding of the his work restrictions, but he states that he was made to feel legislature’s intent in enacting the whistleblower statute; the uncomfortable when taking breaks or asking for help from his court did not claim to generalize to other public policies or co-workers, which he occasionally needed to do. For other statutes. See id. at 322-23. Generally, in order to example, he asserts that he was constantly “scrutinized” while succeed on a wrongful discharge claim, the plaintiff must taking breaks and that one of the supervisors, Dave Black, show only that a “clear public policy existed and was told Plant that the president of Morton did not want him manifested in a state or federal constitution, statute or sitting down so much or taking his breaks in the front office. administrative regulation, or in the common law”; that Plant also states that, although he was told he could ask his “dismissing employees under circumstances like those co-workers to help him with carrying paint samples, they involved in the plaintiff’s dismissal would jeopardize the sometimes failed to comply with his requests, and he was public policy”; that “[t]he plaintiff’s dismissal was motivated consequently told to carry them himself if he could. Finally, by conduct related to the public policy”; and that “[t]he Plant notes one incident in which Dave Black allegedly employer lacked overriding legitimate business justification expressed the opinion that Plant was “milking the system.” for the dismissal.” Id. at 321 (quoting Painter v. Graley, 639 J.A. at 395 (Plant Dep.). Black denies ever making such a N.E.2d 51, 57 n.8 (Ohio 1994)). comment. Nonetheless, the district court reached the correct On April 26, 1996, Plant aggravated his back and leg conclusion with respect to Plant’s wrongful discharge claim. injuries while carrying paint samples up a flight of stairs at As we have noted, Plant has not come forward with sufficient work. At Dr. Logee’s direction, Plant took another leave of evidence to show that he qualifies as disabled within the absence from work. As in the past, Plant did not fill out any meaning of § 4112.02 or the ADA. Although Plant is not forms or follow any other special procedures to request that required to prove all the elements of an ADA claim or a leave of absence, and he continued to receive his full salary. § 4112.02 claim in order to succeed on a claim for wrongful On June 7, 1996, while still on a leave of absence for his discharge in violation of public policy, we believe that unless medical problems, Plant was terminated. He claims that he Plant can show that he is a member of the class of people who was told that the reason for his termination was that Morton are the intended beneficiaries of those statutes, he cannot needed someone who could be present more than he could. show that “dismissing employees under circumstances like He claims that he was never told of any problems concerning those involved in [Plant’s] dismissal would jeopardize the his performance at that meeting and only learned of his public policy” embodied in those statutes. Therefore, we alleged poor performance when he attempted to apply for affirm the district court’s grant of summary judgment to unemployment benefits. Morton on the wrongful discharge claim. Morton, by contrast, claims that Plant was terminated for no III. CONCLUSION other reason than his poor performance and that he was never told otherwise. In particular, Morton points to Plant’s alleged For the foregoing reasons, we AFFIRM in part and inappropriate behavior with some employees of a customer, REVERSE in part the district court’s grant of summary Springs Window Fashions (“Springs”). David Mead, an judgment to Morton, and we REMAND for further account manager/sales representative from Morton, described proceedings consistent with this opinion. one incident in which Plant engaged in a heated discussion

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

appropriate to look to federal law when interpreting analogous with an employee on the floor of the Springs factory. law under R.C. Chapter 4412.”). But cf. Wooten v. City of According to Mead’s affidavit, Plant later explained “that he Columbus, 632 N.E.2d 605, 611 (Ohio Ct. App. 1993) had a friendly relationship with the employee’s sister, but that (stating that the Ohio handicap discrimination law is “at least she believed he was leading her sister on because he was as broad, if not broader, in scope than” the ADA (emphasis married.” J.A. at 82 (Mead Aff.). Mead states that Plant then added)). Furthermore, the parties have pointed to no asked him to drive to a local department store, where they met differences between Ohio case law and federal case law that the sister of the Springs employee. Plant admits to these would be relevant to this case. Therefore, we hold that Plant events, which occurred in March of 1995, while Plant was is not handicapped within the meaning of Ohio Revised Code still on a leave of absence but sporadically working, but he § 4112 for the same reasons that we held him not to be claims that the encounter at the department store was disabled within the meaning of the ADA. See also Maloney coincidental. Mead also reports having received complaints v. Barberton Citizens Hosp., 672 N.E.2d 223, 225 (Ohio Ct. about Plant from Lloyd Nugent, the quality control manager App. 1996) (stating that the plaintiff’s “transitory” back at Springs, both about Plant’s socializing with Springs injury, “which caused her pain and inconvenience for a employees and about his technical capabilities. Subsequently, definite period of time, but which had no adverse residual in May of 1996, Nugent complained again to Mead, telling effects,” does not constitute a “handicap” under § 4112). him that Plant was calling Springs employees during business hours and suggesting that Morton’s relationship with Springs E. The Wrongful Discharge Claim was jeopardized by this behavior. Plant was terminated several days after this last complaint. Plant denies that he Finally, Plant argues that Morton’s actions constitute called any Springs employees during business hours and wrongful discharge in violation of public policy under Ohio asserts that, although Mead had briefly advised him not to law. See Greeley v. Miami Valley Maintenance Contractors, mix his personal life with his business, he was unaware of any Inc., 551 N.E.2d 981, 981-82 syllabus para. 2 (Ohio 1990). problems that Springs had with him. Black admitted that he This claim is apparently dependent upon Plant’s § 4112.02 did not recall having a meeting with Plant about that incident claim, since he points to § 4112.02 as embodying the public and that he was unaware of anyone within the company policy that was violated by his discharge. The district court having a conversation with Plant about it. found that in order to succeed on a claim for wrongful discharge in violation of the policy embodied in § 4112.02, Morton also points to two negative performance appraisals Plant must be able to meet the requirements for showing a of Plant written by Plant’s immediate supervisor, Bill Jones. violation of § 4112.02. Although those reviews are not dated, an affidavit by Human Resources Representative Eileen Christiansen, as well as We do not believe that Plant was required to show all the Black’s testimony, suggests that they were completed in 1996. elements of a violation of § 4112.02 in order to succeed on a One review described Plant as “Below Expectations” overall claim for wrongful termination in violation of public policy. and the other as “Unacceptable.” J.A. at 102, 105 In Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio), (Performance Appraisals). Both were accompanied by cert. denied, 522 U.S. 1008 (1997), the Supreme Court of summaries signed by Bill Jones referring to Plant’s “lack of Ohio held that the plaintiff’s claim for wrongful discharge in knowledge in colorant data base systems” and his violation of the state whistleblower statute would succeed “inappropriate behavior,” among other things, and only so long as he could show that he had fully complied with recommending his termination. J.A. at 104, 107. Black the requirements of the whistleblower statute itself, see id. at admitted that he believed that the performance reviews were

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

never shared with Plant, however. Jones also wrote a letter to of Plant’s medical restrictions and modified Plant’s the Human Resources department immediately after the responsibilities based on them. second Springs incident, which described Plant’s poor performance in very similar terms. However, Jones, who was Because we hold that Plant was not disabled within the later terminated as well, wrote a letter subsequent to his meaning of the ADA and affirm the district court on this termination, stating that he impugned Plant’s performance basis, we do not reach the questions whether Plant was largely under pressure from his superiors and out of fear for “otherwise qualified” for the position of intermix coordinator his own employment. Finally, Morton points to memoranda and whether Morton has put forth a legitimate, non-pretextual written by Black in the fall of 1995 describing several reason for terminating Plant. problems with Plant’s behavior, such as being absent from work without notifying anyone and personal use of the D. The Ohio Revised Code § 4112.02 Claim company phones and fax machines. In order to establish unlawful discrimination on the basis of After receiving a “Right to Sue” notice from the Ohio Civil disability in violation of Ohio Revised Code § 4112.02(A),3 Rights Commission and the EEOC, Plant filed suit against Plant must show 1) that he is handicapped; 2) that Morton Morton in state court, alleging discrimination in employment took adverse action against him because of his handicap; and on the basis of his disability in violation of the FMLA, 29 3) that he is capable of performing the essential functions of U.S.C. § 2601 et seq., the ADA, 42 U.S.C. § 12101 et seq., the job in question. See Hazlett v. Martin Chevrolet, Inc., 496 Ohio Revised Code § 4112.02, and the state wrongful N.E.2d 478, 480 (Ohio 1986). The district court granted discharge laws. Morton removed the case to the federal summary judgment for Morton on Plant’s § 4112.02 claim, district court for the Northern District of Ohio. Morton finding that it could apply the same analysis to that state law moved for summary judgment, which was granted as to all of claim as it had applied to the ADA claim. Plant’s claims. This timely appeal followed. Ohio case law appears to support the district court’s II. ANALYSIS decision. See, e.g., City of Columbus Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998) (noting that A. Summary Judgment Standard the ADA is similar to the Ohio handicap discrimination law and looking to federal law in order to determine whether This court reviews a district court’s grant of summary nearsightedness is a disability under § 4112); Greater judgment de novo. See EEOC v. Northwest Airlines, Inc., Cleveland Reg’l Transit Auth. v. Ohio Civil Rights Comm’n, 188 F.3d 695, 701 (6th Cir. 1999). Summary judgment 567 N.E.2d 1325, 1328 (Ohio Ct. App. 1989) (“It is should be granted only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c); Johnson v. United States 3 Section 4112.02 provides: Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving It shall be an unlawful discriminatory practice: party bears the initial burden of showing the absence of a (A) For any employer, because of the race, color, religion, sex, genuine issue of material fact. See Celotex Corp. v. Catrett, national origin, handicap, age, or ancestry of any person, to 477 U.S. 317, 323 (1986). The burden then shifts to the discharge without just cause, to refuse to hire, or otherwise to nonmoving party to come forward with evidence showing that discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter there is a genuine issue for trial. See Anderson v. Liberty directly or indirectly related to employment. Lobby, Inc., 477 U.S. 242, 256 (1986). There is no genuine OHIO REV. CODE § 4112.02.

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

his termination on June 6, 1996. See Matsushita Elec. Indus. issue for trial unless the nonmoving party has produced Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) enough evidence for a jury to be able to return a verdict for (stating that a court may consider the plausibility of a moving that party. See id. at 249. “The evidence of the non-movant party’s evidence in determining whether that party has met its is to be believed, and all justifiable inferences are to be drawn burden for summary judgment); Penny v. United Parcel Serv., in his favor.” Id. at 255. 128 F.3d 408, 416 (6th Cir. 1997). Furthermore, temporary physical conditions like Plant’s do not generally constitute B. The FMLA Claim substantial impairments. See Interpretive Guidance, 29 C.F.R. §1630.2(j) App.; Roush v. Weastec, Inc., 96 F.3d 840, The FMLA provides that an eligible employee is entitled to 844 (6th Cir. 1996). Although the evidence did not clearly twelve weeks of leave from work for a “serious health indicate that Plant’s condition was temporary, Plant was condition” that renders the employee incapable of fulfilling unable to come forward with any evidence that it was that employee’s job responsibilities. 29 U.S.C. permanent, and the mere possibility of recurrence is not § 2612(a)(1)(D). An employer who interferes with an sufficient to establish substantial impairment. See Roush, 96 employee’s rights under the FMLA may be held liable in a F.3d at 844. For these reasons, we hold that Plant has failed civil suit. See 29 U.S.C. § 2617; Miller v. Defiance Metal to produce sufficient evidence from which a reasonable jury Prods., Inc., 989 F. Supp. 945, 946 (N.D. Ohio 1997). could conclude that he was disabled within the meaning of the ADA during the time in question. Plant argues that Morton interfered with his rights under the FMLA. He claims that after his April 26, 1996 injury, he Furthermore, we reject Plant’s contention that he was qualified as having a serious health condition that prevented “regarded as” disabled within the meaning of 42 U.S.C. him from performing the essential functions of his position. § 12102(2). Plant has come forward with no evidence to Therefore, he argues, he was entitled to twelve weeks’ leave show that he fits within this definition of disabled, other than under the FMLA, but he was terminated after only about six to suggest that because Morton made accommodations for weeks. Furthermore, although Plant admits that he would not Plant’s medical restrictions, it viewed him as disabled. This have been able to return to work within twelve weeks in any is clearly not the kind of situation to which the statutory case, he argues that he should have been allowed to “stack” provision for those who are “regarded as” disabled was the FMLA leave on top of his employer-provided temporary intended to refer. Rather, the EEOC regulations explain that disability leave. In any case, he adds, his FMLA leave this definition of disability applies when the employee has an allotment would not start to run until Morton notified him that impairment that is not substantially limiting but is treated as it was designating his leave as FMLA leave, which it never substantially limiting, or when the impairment is limiting only did. See 29 C.F.R. § 825.208(c) (1998). because of others’ attitudes, or when the employee has no impairment at all but is viewed as having a substantially Relying on Sixth Circuit precedent, the district court limiting impairment by the employer. See 29 C.F.R. rejected Plant’s arguments. In Cehrs v. Northeast Ohio § 1630.2(l). The intent behind this provision, according to the Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998), EEOC, is to reach those cases in which “myths, fears and this court held that the plaintiff could not show a violation of stereotypes” affect the employer’s treatment of an individual. her rights under the FMLA, even if her employer had 29 C.F.R. § 1630.2(l) App. Plant cannot show that this terminated her before she had used her entire twelve-week provision applies to him merely by pointing to that portion of allotment of leave, because she was undisputably unable to the record in which his supervisor admitted that he was aware return to work within twelve weeks in any case. See id. at 784-85. Because Plant similarly would not have been able to

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

return to work until August 5, 1996, the district court found evidence to raise an issue of fact as to whether Morton’s that Cehrs was directly on point and Plant could not show a nondiscriminatory explanation for Plant’s termination was violation of the FMLA. pretextual. We hold that Cehrs is not applicable to this case. Although We hold that Plant has not produced sufficient evidence the Cehrs court appeared squarely to hold that an employee from which a factfinder could conclude that he was disabled. who cannot return to work within twelve weeks has no The definition of “physical or mental impairment” under the remedy under the FMLA, it did not specifically consider the ADA clearly includes Plant’s musculoskeletal condition of problem presented in this case — that of notice by the knee contusions and back strain, see 29 C.F.R. § 1630.2(h)(1) employer that the employee’s leave is being counted against (1999), and the term “major life activity” includes many of his FMLA allotment. Because there is a Department of Labor those activities described by the plaintiff: the EEOC regulation, 29 C.F.R. § 825.208(c), that specifically discusses regulations and the appendix to those regulations identify the requirement of notice by employers, and because we walking, performing manual tasks, working, standing, and believe that regulation to be valid, we hold that § 825.208(c), lifting as major life activities, see 29 C.F.R. §1630.2(i); rather than Cehrs, governs the case sub judice. Interpretive Guidance 29 C.F.R. §1630.2(i) App. However, Plant has not made a sufficient showing that his impairment The FMLA makes it clear that employer-provided leave, substantially limited his ability to perform those major life whether paid or unpaid, may be counted toward the twelve- activities. In his deposition, Plant stated that he was, at the week minimum required by the statute. See 29 U.S.C. time of the deposition, injured to the point that he believed § 2612(c)-(d). The Department of Labor’s regulations himself completely unable to work, unable to sit for more implementing the FMLA, which became final on April 6, than three to five minutes, unable to drive on a daily basis, 1995, see Bauer v. Varity Dayton-Walther Corp., 118 F.3d and unable to lift, bend, or stoop without severe pain. 1109, 1111 n.1 (6th Cir. 1997), elaborate on the Initially, Plant stated that he suffered those same impairments, circumstances and conditions under which this may be done. “on and off,” during the time he was employed by Morton. In particular, 29 C.F.R. § 825.208(a) emphasizes that “[i]n all J.A. at 478-80 (Plant Dep.). Later, however, Plant agreed that circumstances, it is the employer’s responsibility to designate he was attributing his current inability to work to injuries that leave, paid or unpaid, as FMLA-qualifying, and to give notice resulted from yet another automobile accident, which of the designation to the employee.” 29 C.F.R. § 825.208(a). occurred nine months after he was terminated by Morton, in Furthermore, the regulations provide that an employer April of 1997. Furthermore, Plant admitted that he worked wishing to count paid leave against the twelve-week sporadically after his termination, from approximately minimum must so inform the employee within two days of November of 1996 to April of 1997, at a job that involved learning of the employee’s FMLA-qualifying reason for traveling to Pennsylvania once a week, installing computers, requesting leave. See id. § 825.208(b). If the employer fails and training customers to use their computers. Finally, Plant to give notice to the employee within this period of time, the admitted that he was never told by a physician that his employer may not designate the leave as FMLA leave impairment was permanent; nor was he told, however, that it retrospectively; only that portion of the leave following was temporary. notification by the employer may be designated as FMLA leave and counted against the twelve-week entitlement. See Plant’s self-contradictory and logically suspect testimony is id. § 825.208(c). simply not sufficient to support a jury finding that he was disabled during the period at issue here, from April 26 until

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

(B) a record of such an impairment; or The Cehrs court did not directly address these regulations, (C) being regarded as having such an impairment. nor is it apparent from reading that decision whether the employer had given notice to the plaintiff that her absences 42 U.S.C. § 12102(2). In his brief, Plant claims that he is would be counted as FMLA leave. Furthermore, the disabled, because his ability to walk and to stand were employee in Cehrs had taken unpaid leave rather than paid severely limited by his injuries. Based on the evidence leave, see Cehrs, 155 F.3d at 779; therefore, the court had no presented by Plant, it appears that he also considers himself occasion to address § 825.208(c), which appears to govern substantially restricted in the activities of bending, stooping, only those cases in which 1an employer wishes to designate running, exercising, and driving. Plant also argues that he paid leave as FMLA leave. Because it is undisputed in this was “regarded as” disabled by Morton, and that this fact is case that Plant received his full salary during his second evidenced by Morton’s attempts to accommodate his medical absence from work, and because it is undisputed that Morton restrictions. Furthermore, Plant contends that he was never informed Plant that it was counting his paid absence qualified for the position of intermix coordinator with certain against the statutory FMLA allowance, Cehrs is inapplicable reasonable accommodations. Finally, since Morton has not to this case. Furthermore, the record contains uncontroverted disputed that it knew of Plant’s medical problems, terminated evidence that, although Plant did not specifically report to his him, and either replaced him or left his position open while employer the re-injury of his back that occurred on April 26, seeking other applicants, Plant argues that he has made out a 1996, Morton did receive a notice from Plant’s doctor, dated prima facie case of discrimination. Although Morton claims May 6, 1996, excusing Plant from work due to a “[f]lare up that Plant was terminated for poor job performance, Plant [of his] lumbar/back problem.” J.A. at 99 (Slip from Dr. urges that he has presented enough evidence to raise a Owen Logee). The FMLA regulations make it clear that, in genuine issue of material fact with respect to Morton’s such a situation, if the employer feels it does not have proffered explanation, pointing to Dave Black’s alleged sufficient information to determine whether the employee’s statement that Plant was being terminated due to his absences reasons for requesting leave are encompassed by the FMLA, and to Bill Jones’s recantation of his negative appraisal of “the employer should inquire further of the employee . . . to Plant. ascertain whether the paid leave is potentially FMLA- qualifying.” 29 C.F.R. § 825.208(a). The employee need not The district court found that Plant failed to establish that he invoke the FMLA by name in requesting leave for an FMLA- was disabled, because Plant’s “unsupported testimony” did qualifying reason. See id. § 825.208(a)(2). not demonstrate that his injury was sufficiently severe to limit substantially his ability to perform a major life activity. It We see no reason why § 825.208(c) should not be further found that Morton’s attempts to accommodate Plant’s considered valid and applicable to this case. In the absence of restrictions were not sufficient to demonstrate that Morton regarded Plant as disabled. Moreover, the district court concluded that even if Plant were disabled, he was not 1 “otherwise qualified” for the position of intermix coordinator, We note that 29 C.F.R. §§ 825.301(b)-(c) and 825.700(a) prescribe because by his own admission he could not perform the almost identical notice rules when employers wish to designate unpaid essential functions of the job, such as traveling to customer leave as FMLA leave. However, the interim regulations, which applied to the parties in Cehrs, did not contain the same notice requirements for locations. Finally, the district court stated that even designating unpaid leave as FMLA leave, nor did they explicitly state that assuming, arguendo, that Plant made out a prima facie case the failure to designate unpaid leave as FMLA leave stops the clock from of discrimination, he did not come forward with sufficient running on the employee’s 12-week entitlement. See 29 C.F.R. §§ 825.301, 825.700(a) (1994) (interim regulations).

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

specific statutory language governing a topic, agency claim due to the fact that he would have been unable to return regulations “are given controlling weight unless they are to work within a twelve-week period, we nonetheless must arbitrary, capricious, or manifestly contrary to the statute.” consider whether Plant has demonstrated the other elements Chevron U.S.A. Inc. v. Natural Resources Defense Council, of an FMLA claim. In particular, Plant is entitled to twelve Inc., 467 U.S. 837, 844 (1984). The FMLA itself is silent as weeks of leave under the FMLA for his medical problems to the notice an employer must give to an employee before only if he can show that he had a “serious health condition” designating his paid leave as FMLA leave. We believe that which rendered him “unable to perform the functions of” his § 825.208(c) evinces a reasonable understanding of the position. 29 U.S.C. § 2612(a)(1)(D); see Miller, 989 F. Supp. FMLA, reflecting Congress’s concern with providing ample at 946. According to the regulations, a serious health notice to employees of their rights under the statute. See 29 condition must involve either inpatient care or continuing U.S.C. § 2619(a). Moreover, because the FMLA was treatment by a health care provider. See 29 C.F.R. intended to set out minimum labor standards, we do not § 825.114(a). Because the district court decided this case on believe that § 825.208(c) is inconsistent with legislative intent other grounds, it did not consider whether Plant’s medical merely because it creates the possibility that employees could problems met the definition of a serious health condition end up receiving more than twelve weeks of leave in one under the statute and its implementing regulations. We twelve-month period, due to an employer’s failure to notify therefore remand for that court to determine whether Plant has them that the clock has started to run on their allotted period successfully made out the elements of an FMLA claim. of leave. See S. REP. NO. 103-3, at 4-5 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 6-7. We therefore disagree with C. The ADA Claim McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999), and Covey v. Methodist Hospital of Dyersburg, Inc., 56 F. In order to establish a prima facie case of discrimination Supp. 2d 965 (W.D. Tenn. 1999), which held that under the ADA, Plant must show 1) that he is disabled; 2) that §§ 825.208(c) and 825.700(a) were in conflict with the he is otherwise qualified for his previous position with FMLA’s creation of a narrow entitlement to twelve weeks of Morton, with or without reasonable accommodation; 3) that leave and therefore invalid. See McGregor, 180 F.3d at 1308; he suffered an adverse employment decision; 4) that Morton Covey, 56 F. Supp. 2d at 969-70. Rather, we conclude that knew or had reason to know of his disability; and 5) that he those regulations are valid and forbid employers from was replaced or that his position remained open while Morton retroactively designating FMLA leave if they have not given looked for other applicants. See Monette v. Electronic Data proper notice to their employees2 that their statutory Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If he entitlement period has begun to run. Accord Cline v. Wal- succeeds, the burden shifts to Morton to provide a non- Mart Stores, Inc., 144 F.3d 294, 300-01 (4th Cir. 1998); discriminatory explanation for its actions. See id. If Morton Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp. 2d satisfies its burden, Plant must then come forward with 878, 880-81 (S.D. Miss. 1999). evidence demonstrating that Morton’s proffered explanation is pretextual. See id. At all times, Plant retains the ultimate Having determined that, since his FMLA leave had not yet burden of persuasion. See id. at 1186-87. started to run, Plant is not precluded from asserting an FMLA A “disability” under the ADA is defined as 2 We note that this holding renders it unnecessary for us to address (A) a physical or mental impairment that substantially Plant’s “stacking” argument, which appears to be a variation of his limits one or more of the major life activities of [an] argument pertaining to the notice requirements. individual;