NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1124n.06 No. 11-3280 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T KEL VI N GREER, Plaintiff-Appellant,
v. CL EVEL AND CL I

NI C HEAL TH SYSTEM - EAST REGI ON, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM T HE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O
OPI NI ON

Be fore : SUHRHEINRICH , STRANCH , and DONALD , Circuit J udg es.
Bernice B. Donald , Circuit J udg e. Plaintiff-Appellant Ke lvin Gre er appea ls the district court’s opinion and order g ranting summary judgme nt to Def endant- Appellee Cleveland Clini c Hea lth Sy stem - East Reg ion (“the Clini c”) on Gre er’ s claims of Family and Medica l L eave Act (“F ML A”) interfe renc e , F M L A r e ta li a ti o n , d is a b il it y d is c r im ina

tion and failure to acc ommodate, and denying Gre er’ s motion for partial summary judgme nt as to the disability discrimination and FMLA interfe renc e cla ims. For the f ollowing r easons, we aff

irm.
I
. A. FMLA Requests
On J uly 31, 2006, the Clini c hired Kelvin Gre er as a part-time Support Ser vices Assistant. His duties included delivering meals t o patients, transporting patients and medicine, and a varie tyNo. 11-3280

of ot her tasks. Be fore he bega n working at t he Clinic, Gree r sustained a hand injury that require d surg ery . The surg ery was schedule d for September 2006. Altho u g h Gre er did not y et qualify for FML A leave at the Clini c, the Clini c permitted him to take a leave of absenc e until November 2006. At the end of this leave period, Gre er’ s phy sician rele ased him to return to work without restric tions. I n Dec ember

2006, Gre er w as promoted to a f ull-time positi on.
I n ear ly 2007, Gre er was diag nosed with Ty pe I I diabetes, which he controlled by exercising and monitoring his diet and blood sug ar. I n November 2007, Gre er reque sted to be moved to another floor of the Clini c wher e he believed the workload to be lighter
. Gre er indi ca t ed t h at the only response his supervisor, B irce Nash, g ave him wa s “God bless y ou.”
On Dec em b er 7 , 2007, Gre er reque sted FML A block and intermittent leave for the hand condition for which he previously require d s u rger y . He reque sted leave from Dec ember 7, 2007 throug h Marc h 8, 2008. On Dec ember 11, 2007, Gre er’ s chiropra ctor cer tified his medical condition. The certification stated: “[History Right] wrist absce ss requiring surg ical interve ntion. Current [sy

mptoms] ref

lect neurose nsory involve m en t .” The chiropra ctor also authorized two to four wee ks of block leave and eig ht wee ks of intermittent leave so that Gre er could attend follow-up appointments. Fr om Dec ember 7, 2007 to Dec ember 17, 2007, Gre er took time off of work for his hand condition. During this time, Gre er also saw a podiatrist about pain in his foot. The podiatrist diag nosed Gre er’ s foot condition as a diabetic ulcer
. T h e p o diatrist trea ted Gre er’ s foot and indicated the ulc er w ould heal. Gr eer said his foot felt normal a g ain, and the podiatrist told Greer that he did not need a

ny additional time off of w ork.

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Although the Clini c approve d Gre er’ s FML A reque st for block and intermittent leave from Dec ember 7 , 2 0 07 to Marc h 8, 2008, Gre er did not rec eive notice of the approva l. Thus, Gre er returne d to work on De cembe r 17, 2007 unawa re that the Clini c appr oved his FMLA re quest. On Dec ember 26, 2007, Gre er submitt ed a cha n ge o f addre ss form to the Clini c, which Gre er later acknow ledg ed mig ht have listed the wr ong addre ss.
Acc ording to Gre er, his work environment beca me very stressful. As a result, Gre er rela psed into drug use on two occa sions, in Fe bruar y 2008 and ag ain in April 2008. On the rec ommendation of Na sh, Gree r ente red the Clini c’s Employ ee A ssistance Prog ram, CONCERN.
I n May 2008, Gre er’ s foot condition worsene d and he reque sted additional FML A block and intermittent leave
. Gre er’ s phy sician provided a medical cer tification for this re quest in which he indicated that Gre er would be incapa citated for one month. The Clini c approve d six wee ks of block leave but did not approve intermittent leave
. Gre er returne d from FML A bl ock leave on J une 13, 2008 without any

restric tions.
B. Absence s from Work
Gre er incurre d a number of unexcused tardies and absenc es from work during the course of his employ

ment with the Clini c. Gr eer claimed that many

of his tardies a

nd absenc es we re due to h i s foot pain and the fac t that he had to soak his fee t and chang e his socks regularly
. Gre er had
rec eived a copy of the Clini c’s att en d ance policy during his orientation in J uly 2006 and later indicated that he knew the attendanc e proce dures at that time. The Clini c assig ns points for - 3 -No. 11-3280

violations of its attendanc e policy
. These points can result in corr ective actions such as counseling , a Written Correc tive Action, a F inal Writt en Warning , suspension, or termination.
On J anuar

y 30, 2007, for the first time, Gre er was a “no-c all/no-show” for work. He stated that he tried to call the Clini c but was unsucce ssful in this attempt. As a result, the Clini c issued him a Final Writt en W arning , rathe r t h an a s u s p en s ion as t he attendance policy mandates. Fr om J une 2007 to April 2008, Gre er acc umulated 32 attendanc e points. Under the Clini c’s attendanc e policy at that time, employ ees could rec eive a corr ective action if their point total exceede d 18 points in a 12-month period. Gre er did not incur any attendanc e points for his time off in Dec ember or for his FML A leave beg inning in May 2008. On J uly 11, 2008, Gre er incurre d another “no-c all/no-show.” He claims he intended to g o to work, but fell aslee p due to s t ro n g pain medication. After an investigation of his attendanc e violations, Gre er rec eived a second Fi n al W ritten Warning , but beca use hi s most rec ent vi olation was a no-ca ll/no-show, the C linic’s policy re q u i re d termination of Gre er’ s employ

ment. Gre er w as terminate d on J uly 28, 2008.
Gre er filed suit, alleg ing FMLA interfe renc e, FML A reta liation, disability d i s crimi nation, and failure to acc ommodate. Gre er moved for partial summary judge ment on his FML A interfe renc e and discrimination claims. The Clini c moved for summary judgme nt on all claims on the basis that Gre er was terminated solely for his unexcused attendanc e violations. The district court g rante d the Clini c’s motions for summary judgme nt and denied Gre er’ s motions for partial summary judgme nt. Gre er timely

appea led.

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I I
.

This Co u rt re v i ew s a district court’s g rant of summary judgme nt de novo. Blackm ore v. Kalamazoo Cnty. , 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgme nt is proper wher e there is no g enuine issue of materia l fac t and the moving party is entitled to judgme nt as a matter of law. Fe d. R. Civ. P. 56(a)
. The court views the rec ord in the light most favor able to the nonmoving party and dra ws all rea sonable infe renc es in favor of that par

ty
. Blackm ore , 390 F.3d at 895.
I. FMLA Inte rference
A. Gre er’ s Dec ember

2007 reque st for F ML A block and inter mittent leave.
Under the FMLA, “an elig ible employ ee shall be entitled to a total of 12 workwe eks of leave duri n g any 12-month period
. . . [b] eca use of a serious health condition that makes the employ ee unable to pe rfor

m the functions of the position of such employ ee.” 29 U.S.C.A. § 2612( a)( 1)(D)
. An employ ee is not limit ed to “ block leave ” but may be permitted to take the leave intermittently
. See 29 U.S.C.A. § 2612(b)( 1). The Act prohibits an employ er from interfe ring with, restra ining, or denying an employ ee’ s exercise of, or attempt to exercise, his or her rig hts under t h e FML A. 29 U.S.C.A. § 2615(a)( 1).
Gre er first argues that beca use he did not rec eive notice of the C l i n i c’ s ap proval of his Dec ember 7, 2007 FMLA reque st, he was unawa re of time that he could have taken off of work. I f he had known that FMLA l ea v e h ad been approve d, he argues, many of the day s he was late or
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absent would have been protec ted under the FML A, an d t h u s the Clini c would not have been permitted to use those day s as part of its basis for his termination. His contention is that the Clini c there fore i n t erfere d with and restra ined him from exercising his FML A rig hts pursuant to 29 U.S.C.A. § 261 2 wh en it terminated him for tardies and absenc es that should have been cover ed under pr otected le ave.
To establish a prima facie case of FML A interfe renc e, Gr eer must show that (1) he wa s an elig ible employ ee; ( 2) t he C linic was an employ er as define d by the FL MA; (3) he was e ntitled to leave under the FMLA; (4) he g ave the Clini c notice of his intention t o take lea

ve; and ( 5) he was denied the FMLA benefits to which he was entitl ed. Kill ian v. Y orozu Auto. Tenn., Inc. , 4 54 F.3d 549, 556 (6th Cir. 2006). I f the employ ee is able t o es t ab l i s h a prima facie case for FML A interfe renc e, we then apply the McD onnell Douglas framework wher eby the burden shifts to the employ er to provide a nondiscriminatory rea son for the alleg ed interfe renc e. I f the employ er is able to articulate such a rea son, the burden then shifts back to the employ ee to show that the employ er’ s proff ere d rea son is prete x tual. Donald v. Sybra, I nc. , 667 F.3d 757, 761- 62 (6th Cir. 2012) (c iting McD onnell Douglas Corp. v. Green , 411 U.S. 792 (1973)).
The first three elements of Gre er’ s prima facie case for FML

A interfe renc e are not in dispute. There are , howeve r, di sputes as t o the fourth a nd fifth eleme nts. The Clinic asserts that Greer did not satisfy the fourth pr ong beca use he did not ade quately notify the Clinic of his intention to take leave for his foot condition. I n response , Gre er contends that his Decem b er 2 0 0 7 FML A reque st
cover ed his ha

nd and his foot conditions. Greer asser ts that beca

use he indicated to the Disability - 6 -No. 11-3280

Plan Offic e that he was reque sting leave due to pain in his hand, blood sug ar control problems, and
sever e pain in his foot on the same day that he submitt ed his medical cer tification for his hand, the Clini c rec eived adequate notice of his intent to take leave for both conditions
. The Clini c responds that it was not require d to approve Gre er’ s FML A reque st for his foot condition beca use Gre er failed to submit a medica l cer

tification that he re quired time off for his foot.
Gre er provided adequate notice for his hand condition and was subsequently approve d for and took FMLA leave for his hand from Dec ember 7, 2 0 0 7 t h ro u gh Dec ember 17, 2007. Acc ording ly , Gre er does not have a claim for FML A interfe renc e as it r elates to his hand, and thus
we must focus on whether Gre er g ave adequate notice for his intention to take FML A leave for his foot condition.
When reque sting FMLA leave , an employ ee is require d to provide the employ er with the
nece ssary details reg arding the leave to be taken, and in the case of a medical condition, the employ er may require a medical cer

tification from a phy sician to provide such details. 29 C.F.R. § 825.302(c)
. Under the Clini c’s FMLA policy , medical cer tification is nece ssary befor e leave will be g rante d. (D.E. #16-7 at 93, 99.) I f an employ er require s medical cer tification to take leave under the FML A, such ce rtification must state when the serious health condition be g an, the pr obable dur ation of the condition, and appropr iate medical fact s reg arding the condition. 29 U.S.C. § 2613(b). Gre er’ s medical c ertifica

tion indicates that his reque st for F ML A leave was for his hand, not his foot.

- 7 -No. 11-3280

I f a medical cer

tification require s the afor ementioned details reg arding a condition, a finding that the condition at issue be spe cifica lly named in the cer tification is impl icitly

require d. Gre er’ s
cer tification for his Dec ember 7, 2007 reque st wholly lacke d any mention of his foot condition and thus cannot be deeme d sufficie nt. See Novak v. MetroHe alth Med. Ctr. , 503 F.3d 572, 578 (6th Cir. 2 0 0 7 ); see also Brennem an v. MedCentral Health Sys. , 366 F.3d 412, 427-28 (6th Cir. 2 0 0 4 ) (finding that plaintiff failed to g ive not ice to his employ er f or purposes of FML A l eave wher e the
cer tification failed to mention that his absenc es wer e related to his diabetes)
. Moreove r, one’s own claim that one cannot work is insufficient notice for an employ er that require s medical cer tification to approve FML A l eave , and thus Gre er’ s assertion that he informed the Disability Plan Offic e of his foot condition, despite the lack of medical cer tification for that condition, i s u n av ai l i n g. See Olsen v. O hio Edison Co. , 979 F. Supp. 1159, 1165-66 (N .D. Ohio 1997). Thus, we find that Gre er provided adequate notice for his hand condition only and did not provide adequa

te notice to the Clini c to take FML A leave for his foot condition. Acc ording ly , Gre er fails the fourth prong of his prima facie case for FML A interfe renc e, prec luding the need to addre ss the fifth prong
. B. G ree r’s May

2008 reque st for F ML A block and inter mittent leave.
Gre er also asser

ts that the Clini c interfe red with his FML A rig hts when it approve d his May 2008 FML A re quest for bloc k leave but denied his reque st with respec t to inter mittent leave. The

- 8 -No. 11-3280

parties do not dispute that Gre er satisfies the first four elements of the prima facie case . Howeve r, the Clini c contends that the fifth element is lacking , a position with which the district court ag ree d.
Gre er insists that his phy sician cer tified him for intermittent leave by chec king “yes” on the
cer tification form that asked “[w]i ll it be nece ssary for the employ ee to work only intermittently or work less than a full schedule as a result of the condition.” Gre er further argues that this cer tification authorized leave dating back to Dec ember 2007 and extended throug h the treatme n t h e re ceive d during his May 2008 FMLA leave
. This asser tion is incorre ct. Whil e Gre er was diag nosed with the foot condition in Dec ember 2007, he did not reque st F ML A leave for his f oot until May 2008. As previously addre ssed, eac h reque st to the Clini c for FML A leave must be acc ompanied by a medical
cer tification, which must state when the health condition f or which the employ ee is se eking leave beg an. As such, the May 2008 cer tification form did not authorize leave dating back to Dec ember 2007, but mere ly made the require d statement about when Gree r’s foot condit ion beg an. Fur ther,
an employ ee may not take intermittent leave unless ag ree d upon betwee n the employ ee and the employ er or unless medically nece ssary . 29 U.S.C.A. § 2612(b)( 1). There is no evidenc e that prior to Gre er submitt ing his May 2008 FML A leave reques t , t h e C l i n i c ag ree d to allow him to take intermittent leave.
We thus turn to whether intermittent leave was medically nece ssary in acc ordanc e with the medical cer

tification provided with the leave reque st. Although Gre er’ s phy sician cer tified him for five trea tments occur

ring a t f iv e o r s e ven day intervals, the phy sician specific ally indicated that Gre er would be incapa ci t at ed and unable to work for the duration of his treatments. I ncapa citated “is - 9 -No. 11-3280

define d as being ‘unable to work at all or . . . unable to perf orm any one of the essential functions of the employ ee’ s position[ .]’” Branham v. Gannett Satellite Info. Network, Inc. , 619 F.3d 563, 569- 70 (6th Cir
. 2 0 1 0 ) (quoting 29 C.F.R. § 825.115 (2006) (ame nded 2009)). Given that Gre er’ s position require d him to be on his fee t and mobile for the duration of his shifts and that his podiatrist indicated G re er wo u l d b e require d to wea r a non-we ight- bear ing cast on his foot, Gre er would be unable to perf

orm the essential functions of his position and was thus incapa citated. The phy sician’s
rec ommendation that Gre er not w ork for one month, whic h was later e x tended to six wee ks, leads to the conclusion that Gre er r equire d block leave , not intermittent leave.
Given the fore g oing, the district court proper ly found that no materia l issue of fac t exis ts as to the denial of inter

mittent leave with re spect to Gre er’ s May 2008 reque st.
II. FM LA Retaliation
Gre er next argues that the Clini c reta liated ag ainst him for reque sting FML A l eave in Dec ember 2007 and for taking FL MA leave in May 2 0 0 8
. He contends that the Clini c used the tardies and absenc es he acc rued from Dec ember 2007 to J uly 2008 as a basis for his termination, and that had he been notified of and g rante d his rig ht t o t ak e i n t ermit tent leave pursuant to his two reque sts, those absenc es would have been cover ed under the FML A and would have protec ted him from an a dverse employ

ment action. Employ ers are prohibited from “discha rg [i ng ] o r in a

ny o th e r ma

n n e r d is c r im in a

t[ing ] ag ainst
an y i n d ividual for opposing any prac tice made unlawful [under the FML A].” 29 U.S.C.A. § - 10 -No. 11-3280

2615(a) (2). To make out a prima facie case of FML A reta liation, a plaintiff must show that (1) he
was eng ag ed in a protec ted FMLA activity ; (2) the employ er knew he was exercising his rig hts under the Act; (3) afte r lear

ning of the employ ee’ s exercise of his FML A rig hts, the employ er took adver se employ ment action ag ainst him; and (4) there was a causa l connec tion betwee n the protec ted FML A activity and the adver se employ ment action. Sybra, 667 F.3d at 761 (quoting Kill ian v. Y orozu Auto. Tenn., Inc. , 454 F.3d 549, 556 (6th Cir. 2006)). I f the plaintiff establishes a prim a f acie case for FML A reta liation, we then ag ain apply the familiar McD onnell Douglas burden- shifting fra mework. Edgar v. JA C Prod., Inc. , 443 F.3d 501, 508 ( 6th Cir. 2006).
There is no dispute that Gre er was eng ag ed in protec ted FML A activity , that the Clini c knew he was exercising his FMLA rig hts, or that Gre er was terminated afte r returning from FML A leave
. At issue is whether there was a causa l connec tion betwee n Gre er’ s exercise of his FML A rig hts and his subsequent termination.
Gre er sets forth two arg

uments in support of a causa l connect i o n . He fi rst argues that his absenc es and tardies betwee n Dec ember 2007 and Marc h 2008 should be cover ed under the FL MA intermittent leave for which he was approve d but never rec eived notice. I n other words, Gre er argues that a causa l connec tion is established by virtue of the fac t that the Clini c improperly considere d the absenc es and tardies Gre er acc rued during this time frame as a basis for his termination. Gre er also argues that the close temporal proxi mity betwee n the exercise of his FML A rig hts and his termin at i on raises an issue of causation. Whil e the district court found that Gre er prese nted insufficient evid en ce o f a causa l connec tion, this court has held that additional scrutiny by one’s - 11 -No. 11-3280

employ ers, temporal proxi mity , or both, are enoug h to establish the causa l nexus neede d to make out
a prima facie case of FML A reta liation. See Hamilton v. Gen. Elec. Co. , 556 F.3d 428, 435-36 (6th Cir. 2009)
. I n light of this pre cede nt, we find that the Clinic’s ter mination of Gree r on the basis of absenc es during the time he was approve d for FML A leave and the close temporal proxi mity betwee n Gre er’ s exercise of a protec ted rig ht and his termination are sufficie nt to establish a prima facie case of FMLA reta liation. The Clini c must there fore provide a non-re taliatory rea son for Gre er’ s termination.
Th e C l i n i c argues that Gre er’ s acc umulated attendanc e points for tardies and absenc es resulted in a violation of the Clini c’s at tendanc e policy and that this violation serve s as the sole
rea son for the a dverse employ ment action. I n fac t, the C linic asser ts that even if it wer e to i g nore attendanc e points that Gre er acc rued during the time he was approve d for FML A leave , Gre er would still have acc rued twenty -four po i nts in less than t welve months, five point s more than nece ssary to trig g er corr ective action. Gre er does not dispute this point. Having provided a non-re taliatory
rea son for the term i nation, the burden shifts back to Gre er to show that the Clini c’s rea son was prete x tual.
Gre er asser

ts that prete x t is demonstrated by the Clini c’s manipulat i o n o f i t s attendanc e policy so that it co u l d use FMLA protec ted absenc es as the basis for his termination. We are not persua ded that the C linic’s considera tion of Greer ’s t ardie s and absence s from Decembe r 7 , 2 007 throug h Marc h 8, 2008 evidenc es prete x t. Even assuming the absenc es themselves wer e entitled to FML A protec tion, this would not explain or excuse the al toge ther separ ate issue of Gre er’ s “no - 12 -No. 11-3280

call/no shows.” Gre er failed to notify the Clini c in advanc e of cer tain tardies an d ab s en ce s and likewi s e fa i l ed to provide any explanation for them afte r the fac t. Despite Gre er’ s utter lack of communication wit h the C linic about hi s attendanc e is sues, he expect s t h e Clini c to have intuit ed that they wer e related to his medical conditions and, further, asks this court to find that the C l i nic violated the FMLA in holding Gre er acc ountable for his violations of the Clini c’s attendanc e policy
. We decline to do so and find that the district court proper ly g rante d the Clini c’s motion for summary judgme nt as to Gree r’s F ML A re taliation claim.
III . Disabilit

y Discrimination
A. Gre er’ s diabetes is not a qua lifying disa bility
. Gre er br oug ht a

state law c laim ag ainst the Clinic for disability discrimination in violation of O.R.C. § 4112.02(A). Section 4112.02(A) states that “[i] t shall be an unlaw fu l discriminatory prac tice [f] or any employ er, beca use of the
. . . disability
. . . of any person, to discharg e without just
cause , to ref

use to hire, or otherwise to discriminate ag ainst that person with respe ct to hire, tenure , terms, conditions, o r privileg es of employ ment, or any matter direc tly or indirectly related to employ ment.” As the district court stated, in case s of disability discrimination Ohio courts are g uided by fede ral decisions interpre ting the Americ ans with Disabilities Act (“A DA”)
. Thus, we revie w Gre er’ s disability discrimination claim in acc ordanc e with dec isions construing the A DA

. See H olt v. Olmsted Twp. Bd. of T rs. , 43 F. Supp. 2d 812, 825 (N.D . Ohio 1998).

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To establish a prima facie case of di sability discri m i n ation, a plainti ff must show that: (1) h e i s disabled; (2) he is otherwise qualified for the position with or without rea sonabl e
acc ommodation; and that (3) he was discharg ed solely beca use of his disability
. Sybra , 667 F.3d at 7 6 3
. Be ca u s e Gre er’ s termination occur red in 2008, he does not g et the benef it of the ADA Amendments Act of 2008 that define s the term “disability ” more broadly
. The version of the ADA 1 that applies to Gre er defines t h e t er m “disability ” as “(A ) a phy sical or mental impairment that substantially limit s one or more of the major life activities of such individual; (B ) a rec ord of such
an impai rm en t ; o r (C) being reg arde d as having such an impairment.” 42 U.S.C.A. § 12102(2) (2006). “[M] ajor life activities include, but are not limit ed to,
. . . walking , sta n d i n g, l i ft ing, bending , . . . and working .” Id
. I n deter mining whether a disability substantially limit s an individual in a major life activity , we look to the nature and sever ity of the impairment, its duration or expected duration, and the actua l or expected pe rmane nt or long -term impac t of the impairment. 29 C .F.R. § 1630.2(j)(2) (2006).
Gre er claims that his chronic diabetes, with associate d complicating fac tors, sever ely limit s his ability to perf

orm major life activities, such as walking and working
. I n support of this asser tion, Gre er cites a number of case s holding that complications from diabetes may constitute a disability
. I n Lawson v. CSX Transp., Inc. , the Seventh Circuit found that a diabetic wi t h sever e insulindepende nce was disabled under the ADA. 245 F.3d 916, 923 (7th Cir. 2001). That court also found
The AD A Amendments Act of 2008 beca me effec tive on J anuar

y 1, 2009, and this court 1 has held that the amendments are not retroa ctive. Milholland v. Sumner Cnty. Bd. of Educ. , 569 F.3d 562, 565 (6th Cir. 2009). - 14 -No. 11-3280

a plainti ff who had uncontrollable hy pog ly cemic e pisodes due to his inability to control hi s blood sug ar w as disabled within the mea ning of the ADA . Nawrot

v. CPC Int’l , 277 F.3d 896, 905 ( 7th Cir. 2002). And this court has he ld that a diabetic with fluctuating blood-sug ar levels that cause d irritability

so sever e that he c ould not ge t along with co-wor kers wa s disabled. Gilday v. M ecosta C n t y. , 1 2 4 F.3d 760, 762-65 (6th Cir. 1997). Howeve r, these case s involved plaintiffs whose impairments wer e far more sever e in nature , duration, and long- term impact than Gre er’ s. I t is true that Gre er’ s chronic diabetes led to his ulcer ous foot condition and that left untreated, Gre er’ s foot could bec ome infec ted and his condition could bec ome life or limb thre atening
. Courts, how ever , do not consider what may or could occur with reg ard to a disability when constru i n g t h e AD A. Sutton v. United Air Lines, Inc. , 527 U.S. 471, 482-83 (1999). Gre er rec eived treatment for his foot, 2 and althoug h Gre er was restric ted from walking and lifting heavy items w hile on FML A leave , his doctor approve d him to return to work without restric tions on his activities, and even indicated that Gre er’ s foot condition was “ter minated.” Fur

thermore , Gre er admits that despite the pain in his foot h e wa s ab le to walk and, in fac t, often chose to walk to work rathe r than drive. At most, Greer ’s diabetes c aused a

temporar y limit ation on a major life activity , and, there fore , it doe s not give rise to a finding that he was disabled within the meaning of the then applicable provisions of the ADA. See R oush v. W

eastec, Inc. , 96 F.3d 840, 843 ( 6th Cir. 1996).

The amendments to the ADA reje ct the require ment in Sutton that whether an impairment 2 substantially limit s a major life activity is to be deter mined with ref

ere nce to the ameliora

tive eff ects of mitigati n g m ea s u re s . 42 U.S.C.A. § 12101 n. Sec. 2(b)( 2). But, as previously stated, these amendments do not apply in this case. - 15 -No. 11-3280

B. Per ceive d DrugUse a s a Disability
. Gre er a lso contends that the Clinic perc eived that his attenda nce problems wer e caused by ong oing drug u se and, thus, that the Clini c discriminated ag ainst him by terminating him on that basis. He also argues that he was not a curr ent user of illega l drug s when he was terminated. Whil e drug addiction is a rec og nized handica p under Ohio state law, O.R.C. § 4112.02, to avail oneself of protec tion under the statute, an employ ee must (1) have succe ssfully completed a drug reha bilitation prog ram and no longe r be eng ag ing in drug use; (2) be participa ting in a drug reha

bilitation prog ram and no longe r eng ag ing in drug use; or (3) be err oneously reg arde d as eng ag ing in illega l drug use. O.R.C. § 4112.02(Q)(1) (b)( i)-(iii). 3
Gre er asser

ts that he was not curr ently abusing drug s when the Clini c fired him in J uly 2008 and that he had participated in an employ ee assistance prog ram to addre ss his illega l drug use. Whil e Gre er did avail himself of the Clini c’s CONCERN prog ram, he admitted during a counseling session
on Septem ber 10, 2008 that he had rela psed. He also acknow ledg ed that he had been dishonest during a session on April 2, 2008, when he claimed that he only abused alcohol and that he had been sober for five y ear s. I n Gre er’ s deposition, he further admitted to drinking alcohol and using cra ck
coca ine on Fe bruar

y 14, 2008 and April 11, 2008. The Court of Appea ls o f Ohio has held that “[c] u rr en t d rug use means that the illega l use of drug s occur red rec ently enoug h to justify an employ er’ s rea sonable belief that involvement with drug s is an on-g oing problem.” Corr. Corp. of

The ADA provides the same protec tions as the Ohio statute. See 42 U.S.C.A. § 12114(b). 3 - 16 -No. 11-3280

Am. v. Y oungstown Human Relations Comm’n , 742 N.E.2d 1177, 1181 (Ohio Ct. App. 2000) (citing Zenor v. El Paso Healthcare Sys., Ltd. , 176 F.3d 847, 856 (5th Cir. 1999)). Fur ther m ore, “[a]n employ ee illega lly using drug s in the wee ks and months prior to discharg e is a ‘cur rent’ illega l user of drugs for the purposes of t he ADA and R ehabilitation Act.” Corrections Corp. , 742 N.E.2d at 1181(citing Shafer v. Pre

ston Mem. Hosp. Corp. , 107 F.3d 274, 280 ( 4th Cir. 1997)).
Gre er was eng ag ed in illeg al drug use approximately three months prior to his termination. Although the Clini c denies terminating Gre er on the basis of any illega l drug use, we find that Gre er
was a “cur

rent” drug user within the meaning of the ADA at the time of his te rmination, and, thus, the C linic did not erroneously reg ard him as enga g ing in illega l drug use. Consequently , Gre er is excluded from statutory

protec tion a

nd has failed to se t f

orth a prima facie case for discr imination on the basis of pe rce ived druguse.
C. Failure to Accommodate
L astly , Gre er claims that the Clini c failed to acc ommodate his dis ab i l i t y b y ref using to transfe r him to another floor of the Clini c wher e he perc eived the worklo ad to be lighter
. An employ er has a duty to acc ommodate an individual with a qualifying disability if the acc ommodation is rea sonable. See 42 U.S.C.A. § 12111(8); see also Talley v. Family Dollar Stores of Ohio, Inc. , 542 F.3d 1099, 1108 (6th Cir
. 2 0 0 8 ). But beca use we find that Gre er did not have a qualify ing disability , the Clinic had no such duty
. I I I
. - 17 -No. 11-3280

Ba sed on the fore g oing analy si s , we find that the district court proper ly g rante d summary judgme nt in favor of

the Clinic on Gree r’s c laims. Accor dingly , we AF FI RM.

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