1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0121P (6th C ir.) File Name: 04a01 21p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

L EE B RENNEMAN ,

Plaintiff- Appellant

,

v.

M ED C ENTR AL H EAL TH S YSTEM , Defendant-Appellee. X - - - -

> , - - - - N No. 02-3623

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 01-01052—John M. Manos, District Judge.

Argued: March 18, 2004

Decided and Filed: April 26, 2004

Befor e: KENNEDY, ROGER S, and COOK, Circuit

Judges.

_________________ COUNSEL

ARGUED: Natalie

F. Grubb, Medina, Ohio, for Appellan t. Michael N. Ch es ne y, FRANTZ WARD, Cleveland, Ohio, for Appellee. ON BRIE F: Natalie F. Grubb, Medina, Ohio, for 2 Brennem an v. Med Central He

alth No. 02-3623

1 Pl aintif f also alle ged state-law c laims o f prom issory esto ppe l, int enti onal inflicti on of emotional distres s, and wrongful dis charge contrary to pub lic polic y, on which the dist rict court, in a singl e order, also awarded defend ant summ ary jud gme nt. W hile plain tiff, per his notice of ap pea l, purp orts to a ppe al the distri ct court’s entire summary j udgment order, pl aint iff has pres ented no ar gument on t hese s tate-la w cla ims in his brie fs and, thu s, has f ail ed to pr eser

ve su ch cl aims for
app eal. See Som me r v. Da vis
, 317 F.3d 686, 691 (6th Cir. 2003) (holding that the appellan ts abandoned aniss ue for pur poses of appealwhere t hey failed to argue it in their brie fs). Appellan t. Michael N. Chesney , Michael J. Frantz, FRANTZ WARD, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ KENNEDY, Circu it Judge. Plaintiff Lee Bre nneman (“plaintiff”) filed suit against his former employ er MedCentral Health

System (“defe

ndant”), allegi

ng disab ility discriminat ion in violation of the f ederal America ns with Disabilities Act (“ADA”), 42 U.S.C

. §§ 12101 et. seq. , and the Ohio Revised Code § 4112.02 as well as a violation of the federalFamily and Medic al Leave Act (“F MLA” ), 29 U.S.C

. §§ 2601 et seq. 1 Plaintiff appeals the district court’s award of summary judgmen t in favor of defe ndant on these cla

ims. For the rea sons explai

ned below , we AFF IRM th e district court’s grant o f summary

judgmen t to defe ndant.

I. Backgro und

The record

reveal s the foll owing facts. Plaintiff Brenneman worked indefendant

MedCentral Health System’s Phar macy Department

for approximately twenty

-seven years. Alt hough he be ga n h is em pl oym en t i n 1 97 3 a s a Ph ar ma cy Help er, he received a promotion to Pharmacy Te chnician in 1975. Plaintif f remaine d in this pos ition throu ghout the rest of h is employ ment. Plaintiff was diagnosed with diabetes mellitusNo. 02-3623 Brennem an v. Med Central He

alth 3

in 1968. Although he sometimes has episod es o f hyp ogly c emia, in which he can experience seizures, shock, and /or lighthe adedne ss and inc oherenc e, plaint iff ge nerally controls his condit

ion with ins

ulin. Plain

tiff also controls his diabetes by regulat ing hi s diet , exe rcisi ng, and monitoring his blood sugar level throughout the day using a glucometer. Since 1998, plaintiff, whose diabetes has worsened with age, has used an insulin pump to control this condition.
Duringthe cour se of his employment, plaintiff had

su bstantial attenda

nce def iciencie s. Accor

ding to hi s employment

records, plaintiff had 193 unapproved absence s and 34 late a

rrivals orearly

departu res duri ng his employ ment. These attendancedeficiencies chiefly related to medical problems

other than plaintiff’s diabete s, such as six work-related

injuries and

other g eneral

illnesses

. Defendant granted plaintiff FMLA leave on five occasions, none of whichwas for diabetes. Per its attendance policy, defenda

nt di sciplined

plaintiff numerous times for his attendanc e problems

. For

example, plaintiff received a number of verba l

an dw ritten warnings and suspensions. Although each disciplinary

form affor ds t he employ ee an op portunity to respond to t he disciplinary action, plaintiff ne ver once protested the imposition o f discipli ne or men

tioned his diabetes.

OnMarch 31 , 2000, pla

intif f inf ormed defendant that he “wasn’t doing well and

. . . wouldn’t be in” that

day. At that time, he did not mention tha t his abse nce was inany way related to his diabetic condition. On April 4, 2000, plaintiff met with his supervisors, Thomas Arkwright (“Arkwrig ht”), the Director of Phar

macy Service s, and Br

ian Geor ge (“Ge or ge”), the Assist

ant Dire ctor of Pharmacy Service s, regarding his at tenda nce def

icien cies. Durin g this meeti ng, however, plaintiff never reference d his diabetes as the reason for his latest absence. Under defendant’s attendance po li cy, this absence triggere d another suspension of plaintiff. Moreover, pursuant to that policy, this suspension trigg ered plaintiff’s termination because it was his third atten da nce4 Brennem an v. Med Central He

alth No. 02-3623

2 De fenda nt con tends that plain tiff’s appa rent dish one sty during this exit int ervi ew af

forde d an addi ti onal groun d u pon wh ich to ter minate plaintiff, purs uant

to i ts gener al di sci pli nary pol i cy

. Tw ice during the meeting, Eng le aske d pla intiff what h e h ad done on March 31st, t he day of his f inal absence. Twice plain tif f ans wered that

he had been sick and had remai ned at

home i n bed al l day . Engl e, h owever , ha d lea rned t hat plaintiff had se en hi s work ers’ compens ati on doct or on that same day f

or non-diabet es-r elat ed reasons. When Engle confront ed plaintiff with this information, plaintiff ad mitted that he ha d no t, in fact , spent the entire day in bed. Pl aintif

f t old Engl e th at h e had simply fo rgotten about the
app ointm ent. Plaintiff

test ifi ed tha t he had su ff ici ently re covere d fr om his alle ged hypogly cemic attack t o drive hi msel f ap pro ximate ly thirty-six miles round-t

rip t o his work ers’ compensati on doctor’s appointment at 10:30 a.m. Pl aint iff

furt her te sti fied t

hat he wa s, nev erthel es s, not we ll enough to return to wo rk. De fenda nt con ced es, how ever, tha t this apparent misr epres entati on by plai nti ff was n ot a f

actor in i ts decis ion to termin ate plaintiff; rathe r, acco rding to de fenda nt, it termina ted p la i ntiff
purs ua nt to it s att endance poli cy. Thus, whil e thi s post h oc, addit ional ground for pl aint iff

’s t erminat ion may be r elev ant to the calc ulation of
any damages, it is irr elevan t to the determi nation of whether defendant impr oper ly terminated p laintiff under the A DA or the FM LA in the first inst ance. See Mc Ken non v. Na shville B ann er Pu bl’g Co

., 513 U.S. 352, 361- 62 (1995) (explaining t hat, when an employ er disc overs an emp loyee’s wrongdoing after improperl y term inating the employ ee on otherground s, “a s a gener al rule .

. . neit her rei nstat ement nor f ront pay is an appropriate remedy . . . . The beginning point in the

. . . f ormul ati on of a remedy should be calculation of backpay from the date of the

un lawful dischar ge to t he date [ that ] the n ew inf ormation w a s discovered”). related suspension within

five yea rs. Thus, at the conclusion of the meeting, plaintiff was terminated.

OnApril 6, 2000, plaintiff requested and attended a fin al exit interview with Bruce Engle (“Engle”), defendant’s Vice President of Human Resources. Plaintiff, for the first time, mentioned

that h is Marc h 31st abse nce was due to his diabete s. Specifically, plaintiff pr esented a note f

r om Dr. Cyn thia Dorsey, hi s diabetes specialist, stating that the absence was due to an

e xtended episode of diabetes-related hypogly cemia. Defend

ant, nevertheless, finalized plaintiff’s termination. 2No. 02-3623 Brennem an v. Med Central He

alth 5

II. Analysis

We review the district court’s orde r granting summary judgment de novo

. Willi a ms v. Me

hra , 186 F.3d 685, 689 (6thC ir. 1999). Summary judgme nt is proper “if t

h e pleadi ngs , depositions, answers to interrogatories, and admissions on file, together wi th af fi da vi ts , i f a ny, show that there is no genuine issue of material fact and that the moving p arty is ent itled to a j udgmen

t as a matt

er of la w.” Fed . R. Civ. P. 56(c). A “material” fact is one “that might af fect the outcome of the suit.” Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). A “genuine” issue exists if “the e

vidence is suchthat a reasonable jury could return a verdict for the nonmoving party.” Id. at 255. We must acce pt the n onmoving party ’s evide

nce, and draw a

ll ju s tifiable inferences inhis favor. Id. “We may aff irm a decision of

the district court if correct for any r

eason, including one not considered below.” See Uni ted States Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO , 330 F.3d 747, 750 (6th Cir. 2003).
A. Disability Discrimination

The A DA p roscribes discrimination “against a qualified individual with a disa

bility because of the disability of such individual inregar

d to job ap plica tion proced ures, the hi ring, advanc ement, o r d ischarge of employ ees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C

. § 12112. Under the ADA, an employ

er’s de nial of e mploy ment oppor

tunities to

anemploy

ee with a disability may constitute

such unla

w ful discriminationif the denial is based upon the employer ’s need “to make reasona

ble accommodation to the physica l or mental impairme nts of the emplo ye e or appl icant.” 42 U.S.C. § 12112 (b)(5)(B) (1991). To establish a prima faci e case of discriminationunder the

ADA, a pl aint iff must de monstrate that: “(1) he is disa

bled; (2)he is othe

rwisequalified for the position with or without reasonab le ac commodation; (3) he suffered an adverse e mployment decision; (4) his employ er knewor hadreason t

o know of h

is disabili ty; a nd (5) his 6 Brennem an v. Med Central He

alth No. 02-3623

position remained open.” Hammon v. DHL A irways, Inc.
, 165 F.3d 441, 449 (6th Cir. 1999). Once a plaint iff establishes a prima facie case of disability discrimination, the burden of production shifts to the employ er to articulate a l egiti mate, non-discriminatory re ason for the adverse action againstplaintiff. Brohm v. JH Properties, Inc., 149 F.3d 517, 520-21 (6th Cir. 1998) Once the employ er discharg es this burden of production, the employe e must demonstrate that the proffered reason was, in fact, a

pretext for unla wful disa bility discrimination. Id. at 521. Th e p laintiff always r etains the ultimat e b urden of persuasion. Plant v. Morton Int’l, Inc.

, 212 F.3d 929, 936 (6th Cir. 2000).

Becau se ne ither party ha s argued that an action for hand icap discrimination under Ohio law entails a different legalanalysis than that for disability discrimination under the ADA, and because Oh io case l aw tends to sugg est that it entailsthe same legal analysis as that under the ADA, we will anal yz e pla inti ff’s sta

te and fe deral di scrimina tion claim s under Ohio Revised Code § 4112 and the ADA, re sp ec ti ve ly, solely under the ADA. See Plant , 212 F.3d at 938-39 (noting that Ohio cas e law see

ms to support the proposition that the ADAanalysis applies to a Oh i o claim of

disability discrimination, and assuming so for purposes of i ts analy sis because the pa rties have n ot argu ed otherwis e); Martin v. Barnesv ille Exe

mpted Vill

. Sch. Dist. Bd. of Educ., 209 F.3d 931, 934 n.2 (6th Cir. 2000) (holding that “[b]oth federal and Ohio disability

discrimination actions req uire the same analysis”); City o

f Columbus Civil Serv. Comm’n v. McGlone

, 697 N.E.2d 204, 206-07 (Ohio 1998) (holding that, t o establish a prima facie case of handicap discrimination under O hio law, which is “similar” to the ADA, a plaintiff mus t show that: 1) he was handicapped; 2) the em ployer took an adverse action a gainst h im, at lea st in part, be cause of his handicap; and 3) the plaintiff, “though hand icappe d, can safely and substantially perform the e ssential functions of the job in question,” and noting that Ohio courts may look to the ADAfor guidance in the interpretation of Ohio law)

. But see Wooten v. City of

Columbus

, 632 N.E.2 d 605, 611 ( Ohio Ct.No. 02-3623 Brennem an v. Med Central He

alth 7

3 As to plai nti ff’ s fai lure t o establ ish a prim a fa c ie case, t he dist rict
court also held that plaintiff could not ba se his d isa bil ity di scri mination claim on an y alleged refusal b y d efend ant to ac commodate plai nti ff by granting him le ave for h is di abetes becaus e pla int if f ha d never request ed
any such a cco mm oda tion from defen dan t. The distr ict court al so grant ed
summary judg men t for de fenda nt on the alterna tive gro und th at, even if plaintiff were to have e stabl ished a prima facie case o f disab ility discriminati on, he, nev erthele ss, failed to dem onstra te that de fenda nt’s proffe red leg it imat e reas ons f or plainti ff’ s terminati on were a pret ext for disab ility discrimin ation.

4 Although plain tif

f argu es that

he shoul d have recei ved medical leave forcert ain other

diabe tes -re lat ed abse nces , abs ences for which he simp ly informed defendant that he was “i ll” or “not f eeli ng well ,” we declin e to consi der these absen ces i n our analy sis si nce, as a ma tt er of law, the y do App. 1993) (holdingthat Ohio disability discrimination law is “at least as broad, if not broader , in scope than” the ADA) (emphasis added).

The district court granted summary judgment for defendant

onplaintiff’s state and federal d isability discrimination cla

ims

onthe groun d that plaintiff had failed to establish a prima facie case of

such dis c rimination; specifically, the district court held that plaintiff was unqualif ied due to his inabili

ty to satisfy defendant’s basic at

tendanc e requir

ements. 3 We agree with the di s trict court that plaintiff, as a matter of law, has failed to establ ish t hat he was otherwise qualified for the position of Pharmacy

Technician

with or wit

hout rea sonable accommodation. Plaintiff ’s disabil ity d

iscrimina tion claim s hinge upon def

endant’ s fai lure to grant plaintiff the

reasona ble acc ommodation

of FML A leave for his dia

betesrelated absences and defendant’s ultimate termination of plaintiff under its atten dan ce policy ba sed upon its assessment of points for these diabetes-related absence s.
However, even if defenda nt had granted plaintiff medical leave for those absences which plaintiff specifically alleges

were diabetes-related–absences on Fe br uary 16, 1996; February 9, 1999; and March 31, 2000–, 4 plaintiff , as a matter 8 Brennem an v. Med Central He

alth No. 02-3623

not cons titu te a re quest for leave as a n accom mod ation for his diabetes. W hile plain tif

f cl aimed tha t he woul d often r elay thi s explan at ion when he was e xperi enci ng di abete s-r elat ed il lnes ses, thi s st ateme nt w ould n ot have reaso nab ly app rised d efend ant that the abse nces w ere re la ted to a disab ility rathe r than

some generalillness. See Ga ntt v. Wi lson Sporti ng Goods Co

., 143 F.3d 1042, 10 46-47 (6th Cir. 1998) (“The employ er i s not require d to s peculate as to the ext ent of the employee’s disabilit y or the employee’s need or desire for an accommodation.”). of law, would not

have be en qualif

ied to perform the essential functions of

th e P ha rm ac y Te chnicia n position d

ue to his excessive absenteeism. See Gant t v. Wilson Sporting

Goods Co., 143 F.3d 1 042, 1047 ( 6th Cir. 1998) (“An employe e who cannot meet the attendan ce re quirements of the job at issue cannot be considered a

‘qualified’ individual protected by the ADA.”); Cehrs v. No rtheast Oh io Alzheim er’s Res earch Ctr.

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

be a reasonable a

ccommo datio n under the ADA, th ere is no pres

umption tha

t uninterr upted att endanc e is a n essential job r equiremen t, and tha

t the employe

r must demonstrat e tha t such leave would be unreasonable and imposean undue burden upon it, but noting that the plaintiff,

n everthe less, bears the burden of proving that she wa s qualifie d for the

position wi

th such ac commodat

ion); Hayes v. Cleve land Pneu matic

Co. , 634 N.E.2d 228, 232 (Ohio Ct. App. 1993) (h old ing that plaintiff , for pur poses of h

is Ohio handicap discrimination claim, failed a s a matter of law to demonst rate that he was capable of performing one of the essential function s of his job –regu lar atte ndance –due to his excessive absenteeism). The district court found that, based uponGeorge’s affidavit and i ts supporting documentation, plaintiff had been absent 193 times and had arrived late or left early o n 34 occa sions withi

n the five

ye ars pre ceding

his termination. Plaintiff claims that the p ay roll and clocking reports attached to Georg e’s aff

idavit ar e not the d

ocuments uponwhich Ge org e relied in calculating plaintiff’s attendanc e points. Rat

her, ac cording

to plaintiff, George calculated the attendance points based

upon a four-page spreadshee

t, which plaintiff present ed him with

and ques tioned him

about duringNo. 02-3623 Brennem an v. Med Central He

alth 9

5 Plain tiff

argues that def

endant’s att endance policy was ne i ther uniform nor un if

orml y appli ed because each department had it own atte nda nce guidel ines. Beth Hildret h (“Hil dreth”) , defen dant’s Human Resources Manage r, testifi ed that each department, includ i ng the Pharmacy De partm ent, had its own a ttenda nce gu id eli nes and that these

cou ld devia te as to the thr eshold t hat t he employees must pas s to ent er into the s yst em-wide at tendance poi nt sy stem. However , Hil dreth
tes ti fi ed th at t

he sy ste m-wi de att endance point s yst em unif ormly appl ied
to each e mploy ee who e nter ed th at sy stem. Defendant h as provided evidence of th ree, non- disabl ed employees in the Nursi ng Department who m it termi nated f

or excess ive abse nteei sm under i ts newatt endance poi nt system. P laintiff doe s not d ispute th is evide nce. R ather, p lainti f f

seem s to argue t

hat hi s accumul ation of seven and one-t

hird poin ts s o as to ent er th e attend ance poin t system in the first instance was p ursuan t to

a non-uni formly

applied at

tendance pol icy. Because plai nti ff has off ered neit her evidence of nor any mea ningful ar gume nt on the alleged dispa rate appli cati on of the P harm acy D epa rtmen t’s atte nda nce gui deline s, we dec line to co nside r such a n argu men t. his deposition. Moreover, plaintiff underscores that George, duringhis deposition, coun ted only five and one -third attendance points from that spreadsheet–an amou n t insufficient

for defendant’s entrance into the new attendance pointsystem, under w hich defenda

nt was ulti

mately terminated. 5 H owever, George testified that the r eferenced spreadsheet

was a document that he had prepared f or an unemployment

compe nsati on hea ring after plaintiff’s termination. George further testified that he would not have

us edthis spreadsheet in calculating plaintiff’s attendanc e points, and that he had used other documents, such as point reports and call -off she ets, that were not b efore h imduringhis deposition. Thus, plaintiff, in a ttempting to manufacture a genuine issue of material fact, miscons tr ued George’s te st im on y; George never testified–nor doe s any rec ord evidence show–that he relied o n this spre adsheet in calculatingplaintiff’s attendance points. Alter nati ve ly, plaintiff argues that a document entitled “ Leav e of Absence History,” which pr ovides t hatplaintiff, since 1995, had 43

a bsen ces from non-work-related injuries and 66 absence s fromwork-related injuri es, refutes defendant’s conte ntion that plaintiff had 227 absence s. Howev er, as de fendant points out, 10 Brennem an v. Med Central He

alth No. 02-3623

6 In so holdi ng, we n eed not and do not ex pre ss a ny opi nionupon whether plaintiff has s atis fied t he other element s of a prima facie claim of d isabi lit

y dis crimi nati on or wheth er he has suff icie ntl y demonstr ated that defenda nt’s proffered non -disc rimin ator y re asons are pr etex ts for disab ility discrimin ation. this document de tails only plaintiff’s absence s for which defen dant granted him formal leaves of absenc e. In a n y event, plaintiff

seems to c oncede

that he has be en absent on 109 occasions since 1995.
According

to Arkwright’s affida

vit, regular

attendance is an essentia l function of the Pharmacy Technician pos ition, whic h entai ls preparing and delivering me dications to hospital patients, ordering, receiving, a nd stoc king medications, and posting charg es to patie

nts’ acc ounts. Clea

rly , plaintif

f could not perfor

m these duties when absent from defendant’s premises

. Arkwright furthe r testified that plaint iff’s excessive absences placed a

great strain on the Pharmacy

Department. Specific ally

each time

plaintiff was abse nt, Arkwrig

ht would have to either call in an unschedul ed employee to cove r plaintiff’s shift or els e reass ign plaintiff’s duties to employees who were already

sched uledto wo rk . C on se qu en tl y, according to Arkwr

ight, pla intiff’s excessive

absente eism increased both employees’ wor

kloads and the department’s pay-roll expenses and

decreased the Pharmacy

Department’s

mor ale. While Arkwright tried to carry a number o f ph armacy employ ees whom

he could c all-in to work at a moment’s notice to cover for an absent technician, it does not follow, as plaintiff contends, that plaintiff’s absences did not prejudice defendan

t w hatsoever. Arkwright’s testimony shows other

wis e. In sum, plaintiff, as a matter of law, has failed to demonst

rate tha t he was q

ualified to perform t

h e essential fu nc ti on s o f t he Ph ar ma cy T echnician position, even if he had received medical leave as a reaso nable

accommo dation for his diab etes; rather, the record is replet e with evidenc e of plaintiff’s excessive absenteeism, which rendered him unqualified for that

position. 6 Thus, the districtNo. 02-3623 Brennem an v. Med Central He

alth 11

court properl y g rante d def

endant summary judg

ment on plaintiff’s disa

bility discriminat ion claims under the ADA and Ohio law.

B. FMLA V iolation

The FMLA affords a

n eligible employe e up to twelve weeks of leave within a twelve mo nth period when the employee suffers from “a serious health condition that makes the employee una

ble to perform the funct ions o f . . . [his] position,” among other qualify ing rea sons. 29 U. S.C. § 2612(a) (1)(D) . The ter m “ ser ious health condition” signifies “an illness, injury, impairment, or phy sical or mental conditionthat involves . . . (A ) inpatie nt care in a hospit

al, hospice, or residential medical care facility or (B) continuing treatment by

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

see 29 C.F.R. § 825.114 (defining “inpatient care in a hospital, hospice, or residential medical care fa cility” and “continuingtreatme

nt by a health care pr ovider” ). 29 C.F. R. § 825.114( a)(2)( iii) provi des that a “seriou s health

condition involving continuing tre atm ent by a hea lth care provider includes . . . [a]ny period of incapacity or

treatment for

such incap acity

due to a chronic serious health condition.”I t further defines a “chronic serious heal th con dition [a]s one which: (A) Requires

periodic visits for treatme nt by a health

care provider

. . . ; (B) Continues over an extended period of tim e (including recurring episodes of a single underly

ing condition); and (C) May causeepisodic rather than a continuing period of incapacity (e.g., asthma, di abetes

, epilepsy, etc.) .” Id. (emphasis added).

To invoke the FMLA’s protec tion for this qualifying
reason, th e eligi

ble employe e, during

his employ

ment, must request leave and give the

employ er notic e that he

is

re q uesting such leave for a serious health condition that renders him unable

to perform his posit

ion’s d uti es. See Brohm, 149 F.3d

a t 5 23 ( hol di ng t hat , be cau se t he F MLA requires the eligible “ employee

. . . [to] provide notice anda qualifying

reason for requesting the leave

, ” the plaintiff’s 12 Brennem an v. Med Central He

alth No. 02-3623

FMLA claim cannot lie wherehe requested medical leave and received medical attention for his serious health condition only after the termination of his employ ment); Hammon, 165 F.3d at 4 51 ( hol di ng t hat a FM LA claim does not lie where the plaintiff failed to notify his employ er of his qualifying conditionand to request leave for such co ndition during his employment

, but, rather, only did so after his employment ha d ende d ). Howeve

r, the el igible e

mploy ee need not expres sly mention the FMLA asthe source of his right to request such leave. Hammon , 165 F.3d at 451. Rather, the critical test for substantively-sufficient

notice is whether the i nformation that the employee

conve ye d to the em

ploy er was r easonab ly adequa te to appris e the employer of the employe e’s req

uest to take leave f

or a ser ious heal th condition that rendered him unable to perform his job. Brohm , 149 F.3d at 523; Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 725 (6th Cir. 2003) (holding that the plaintiff, as a matte r of law,had suff

iciently notified his employer

during h is employ ment that h

is reque st for unfo resee able leave was for a FML A-qualifying

serious health conditionwhen he informed his employer tha t he had been at the hospital and was unable to work due to an injury from a motorcyc le accident).

The eligible employe e mus t also give the employ er this substantive notice within the requisite time frame. When the eligible em pl oye e’s l eave for his seri ous healt h condition is foresee able based up on planne d medica l treatme nt, he must “provide the employer with not less than 30 day s’ n oti ce, before the date the leave is to begin.” See 29 U.S.C. § 2612(e)(2)(B) (excluding a situation in which “the da te o f treatment require s leave t

o begin in less t han 3 0 days” and requiringthe eligibl e e mploy ee, in suc

h a situati on, to “provide such notice as is practi cable” ). In contrast, when the approxima

te time of the needed leave is unforeseea ble, the eligible employee

should give the employ

er notice of the need for the l eave “as soon as practicable unde r the facts and circumstances o f

the particular case.” 29 C.F.R. § 825.303(a). “It is expe cted that an employee will give notice to the

em ployer within no more than one or two workings day s ofNo. 02-3623 Brennem an v. Med Central He

alth 13

learningof the need for leave, except in extraordinary circumstances

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

Once an employer r

eceives sufficient notice t

hat the eligible employee is requesting leave for a

FMLA-qualify

ing reason, the employ

er bear s the burd

en to ga th er any additional informationnecessary

for the leave to fall within the FML A. Hammo n , 165 F.3d at 450. An employe r may re quire the eligible employ ee to provide, in a

timely manner, certification by a health care provider. 29 U.S.C. § 2613(a). Where th e leave is due to a serious health condition of the employee that prevent s him from performing his job, the requested certification

is sufficient if it states the date u pon which the serious health c ondition be gan, the conditi on’s prob able duration, the appr

opria te m edical facts regarding the conditionwithin

the health care provider’s knowledg e, and a statement that the employee is una

ble to per

form his position’s duties. 29 U.S.C. § 2613(b).

The FMLA render

s it “unlawfu l for a ny e mploy er to interfere with, restrai

n, or den y the exerci se of or the attempt to exercise

any right” that it af fords. 29 U.S.C. § 2615(a)(1). Furthermore, any

violation o f the FML

A–or of the regu

latio n s implementing it–constitutes such unlawful interference

. 29 C.F.R. § 825.220(b) (referencing an employ

er’s re fusal to aut horiz e FMLA leave a s an illustration of unlawf u l interference). The FML

A also re nders it “ unlawfu l f o r any employer to discharge or in any

other manner di scr iminate

a gainst any individual for opposing any prac

tice mad e unlawfu l” by the Act. F or

example, an employer

may neither

use an employee ’s “taking of FML A leave as a negative factor in [an] employment action[]” aga inst that employee

nor count an employ

ee’s FMLA le ave unde r its “ n o fault” attendance policies. 29 C.F.R. § 825.220(c).

Plaintiff’s complain

t alleg es that de fendant u nlawfull y interfered with plain

ti ff’s exercise of his rights under the FMLA by counti ng various absences that he alleg es were FMLA-qual ifying–a

bsences on February 16, 1996 ; 14 Brennem an v. Med Central He

alth No. 02-3623

7 Before th e di stri ct court, def enda nt arg ued t

hat any FMLA c laim base d upon plai nti ff

’s absen ces onFebrua ry 16, 1996, an d Februa ry 9, 19 99, was time-barred because plaintiff had received susp ensions b ase d
upon the se abs ences and that thes e mate ria l adv erse act ions fel l out side of the app licable statute-of-lim itatio ns per iod. See 29 U.S.C. § 2617(c) (1) and (2) (stating that an acti on may be brought under the FMLA “not lat er than 2 year s after the d ate of the last even t constitu tin g the al leged violati on for whic h the ac tion is br ough t[,]” exc ept tha t an actio n fo r a willf ul violati on may be brought within 3 years after such time); Butler v. Owens-Brock

way Plastic Pr od. , 199 F .3d 31 4, 317 ( 6th Ci r. 2000) (holding that a pla intiff’s terminatio n claim was no t ti m e-bar red sim ply because it was based upon certain ti me-bar red as sess ments of poi nts for absences where the terminat ion was the fi rst materi al adverse action, and illus trati ng sucha mat eri al a dvers e act ion with probation, ter mination, or

a failure to r einstate) . Plaintiff countered that the “continuing violations” theory applies so as to to ll the st atu te of limitatio ns here

. See Dixon v. Anderson

, 928 F.2d 2 12 (6th Cir. 1991). Defendant, in res ponse, ar gued that the re i s no pr eceden ti al s upport for the pr op osition t

hat the “continuing v i ol ati on s ” t he ory ap pl i es t o t

he FML A, as it do es to an tidisc rimi nati on law. The distri ct cou rt did n ot exp ressly de termin e this
statut e-of-l imitati ons issue wh en it held that plain tif f, a s a matt er of l aw, ha d fai led t o giv e def endant suf fi cien t not ice that

his absen ces on February 16, 1996 , and February 9, 1999, were FM LA-qualifyi ng. In any

even t, defen dan t, by neithe r raisin g it nor p resen ting any a rgum ent on it in its brief

, has abandoned the stat ute-of- limit ations argum ent on app eal. See Som me r v. Da vis , 317 F.3d 68 6, 691 (6th Cir. 2003). February 9, 19 99; and Marc

h 31, 2000–

under its “no-fa ult” attendance polic y and

by subsequently

terminating plaintiff pursuant to that poli cy . The distr

ict court gr anted summary judgment to de fen dant on plaintiff’s FMLA claim on the ground that plain

ti f f, as a matter of law, failed to give defendant sufficient notice of a FML A-qualifying

reason for these al leged d

iabetes -relate d absenc es. 7

1. March 31, 2000, Absence

Onappeal, plaintiff

contends that the d istrict c ourt err

ed in granting defendant summary judgment

because plaintiff had timely an d s uf fi ci en tl y notifie d defendant of his need for FMLA leave for

his absence on Friday, March 31, 2000, the latest abs enc e triggering his termination under defendant’sNo. 02-3623 Brennem an v. Med Central He

alth 15

8 Plain tiff

argu es t hat he di d not me nti on his di abetes during the Ap ril 4th termi nati on meetin g because he wa s nev er asked wh y he had been absent on March 31st. However, thi s argument is not persuas ive. Given that his super visors w ere ex press ly termina ting plain tiff based , in part,
upon this abse nce, a r easo nab le person in plainti ff’ s position would have refer enced the reason nec essi tating that absence in an attempt to avert the termin ation. attendance policy. On Frida y, March 31st, plaintiff called defendant to inform it that he would not be a t wo rk. In particular, he state d that he “wasn’t doing well and . . . wouldn’t be in today.” At that time, he did notmention that his absence was in any wa y related to his diabetic condition. Alth ough plaintiff worked on Sa tu rd ay a nd Su nd ay, April 1st and 2nd, respectively , he made no further mention of the

re asonfor his one-day

absence. On April 4th, his nex t scheduled d a y of work, plaintiff me t with supervisors Arkwright

and Geo rge regarding

his attend

ance de ficienc ies. Duringthis meeting, however, plaintiff did not mention his diabet es as the reason for his latest absence. 8 Under defendant’s attendance policy , this absence trigger e d both plaintiff’s suspension and his terminationbecause

it was his third attenda nce-re lated suspension within five years. On April5th, plain

tiff’s wi fe infor

med Eng le that pla intiff had been absent on March 31st due to a h yp oglyc emic episode, and that she had atten

ded to him

all night due to that episode. OnApril 6, 2000, plaintiff requested and attended a meeting with Engle. Plaintiff, for the firs t time, ment ioned tha t his March 31st abse

nce was due to his d

iabetes . Sp ecifica ll y, plaintiff presented a note from Dr . Dor sey that stated that “severe hypogly

cemia du e to diabetes” caused the absence and that this absence was, thus, FML A-qualifying

. The informa

tion that plai ntiff gave defendant–via his wife’ s statement to Eng le or Dr. Dorsey ’s note–may have been sufficient to convey to defe

n da nt that pla

intiff’s March 31 st absence was due to a serious health condition that rendered 16 Brennem an v. Med Central He

alth No. 02-3623

9 Plain tiff

also ar gues t

hat a genuin e issue o f materia l fact exists as to whether he had given defendant suff icient not ice when he cal led i n on March 31st a nd sim ply stated th at he “wa sn’t do ing well a nd . . . wo uldn’t be in t oday.” In support, plaint iff relies on Spa ngler

v. Fed . Ho me Loan Ba nk o f Des Moines , 278 F.3d 84 7 (8th Cir. 2002). In Spangler , the Eigh th Circui t hel d that a genuine iss ue of material f act regarding notic e exist ed because t

he defendant

em ployer knew tha t th e plaintif f suf fered from depres sion, tha t she had needed FM LA leave for depression in the past, and knew that her lat est abs ence was f

rom “depress ion agai n.” Id.
at 852-53. Here, pl aint iff argues that

def end ant kne w that

plain tif f has diabetes an d t

ha t pl ai nti f

f h ad FML A -quali fyi ng, di abetes- relat ed absences on February 16, 1996 , and February 9, 1999–absences f or which plaintiff c onten ds de fenda nt unlaw fully pena lized h im. U nlike in Spa ngler, however, plain tif f did not advise def

endant t hat hi s March 31st absence was rela ted to a serio us hea lth con ditio n–here , diabetes. Mo reover, plaintiff’s ba re statem ent t hat h e was unwell would not have

reaso nab ly app rised defendant that his absence was FMLA -qualif ying, given plain tif

f’s long hi story

of diver se physical maladies, both workrelat ed and n on-work-related. Likewise, plai ntif f’s as sertion t

hat he

wou ld habit

uall y st ate onl y that he was “il l” or “ not f eeli ng well ” when he was expe riencing a diab etes-related illness is unpersuasive. T hus, even if plain tif f’s assertions were tr ue–that defendant

knew of plain tiff’s diabetes and h is past nee d for FMLA leave for diabetes -rel ated absen ces–, theyare insuf

f icient to c reate a genuin e issue o f materia l fact as to whether plain tif f’s “call -in ” gave def

endant s uff

icie nt not ice thathis March 3 1st absence was FML A-qualifying.

10 To the exte nt that de fenda nt argue s that his no tice was temp orally suffi cient because he met th e time requirement f or providing the employ er–uponits reque st–of m edica l c er tification to supp ort a FMLAquali fyi ng request for leave , such an arg ume nt is misp laced

. See 29 U.S. C. § 2613; 29 C. F.R. § 825.311( b) . Ra ther, the i ssue i s whether plaintiff provi ded de fen dant wit h suf fi cien t not ice that

his reque st for leave was for a FMLA-quali fyi ng condit ion in the f irst instance. him unable to perform his job. 9 See Brohm , 149 F.3d at 523; 29 C.F.R. § 825 .303(b) (noting that an employ ee’s spokesperson, such as a spouse, may give the em ployer the required notice if

“the emp loyee is una ble to do so personally”)

. However, plaintiff , as a mat ter of la w, faile d to give defendant notice, even if it were substantively

sufficie nt, within the necessary

time frame for unforeseeable lea ve. 10No. 02-3623 Brennem an v. Med Central He

alth 17

11 In fac t, plai nti ff

tes ti fi ed th at h e nei ther spo ke with no r saw Dr. Do rse y on M arch 3 1, 20 00, fo r his diab etic co ndition . Rathe r, plaintiff fir st s aw Dr. Dors ey r egarding hi s March 31s t hy pogly cemic epis ode on Ap ril 5th, and Dr. Dorsey’s letter was base d up on a r ead ing of p laintiff’s blood glucomet er fr om the day of the abse nce. First, plaintiff failed to give defendan t notice “within no

more than one or two workings day s of lear ning of the need for leave.” 29 C.F.R. § 825.303(a). Defendant did not receive notice from either plaintiff’s wife o r D r. Dorsey’ s letter on or before April 2n d, the s econd working day after plaintiff learned of the need for the Marc h 31st absence. Plaintiff argues that, although he worke d on April 1st and 2nd, he was not required

to give notice on or before April 2nd because Saturday and Sunday

, the 1st a

nd 2nd of A

pril

re sp ec ti ve ly, are not normal working da ys f or physicians. However, the applicable regulation imposes no qualification that onl y t he normal working days of physicians be c ounted indeterminingthe timeliness of an employee ’s notice. Seeid. To the extent that plaintiff is implying that he n eeded tosee Dr. Dorsey to be a

ble to give d ef

endant the required substantive notice , w e fail to see how Dr. Dorsey possessed any more information pertaining to whether plaintiff’s March 31st absence was due to a

serious health condition rendering him unable to work than wh atplaintiff himself possessed. 11 While Dr. Dorsey

may have in for med pl ain ti ff t hat th e FM LA might cover the absence and provided medical certification

to support any such cla

im, plaintiff need

not h ave spec ifically mentioned

the FML A nor provided med

ical ce rtifica tion to meet h is ini tial burde

n of givi ng def endant the requis ite notice. See Hammon , 165 F.3d at 451; 29 U.S.C. § 2613; 29 C.F.R. § 825.311(b).

Inaddition, no extraor

dinary circumst ances exi sted to rend er it unfeasible for plaintiff to have given def endant the necessary no tice on or before April 2, 2000, the second workingday following

plaintiff’s March

31st absence. See 29 C.F.R. § 825.303(a). Plaintiff seems to arguethat, because of 18 Brennem an v. Med Central He

alth No. 02-3623

the physical eff

ects of his hypoglycem ic episode, he was p hys i cally

unable to

inform de fendant

that his Ma

rch 31st absence was d

ue to that diabete s-relat

ed illness . In s

upport, plaintiff relies upon Dr. Dorsey ’s l etter. In that letter, Dr. Dorsey stated that she believed that plaintiff had

been una ble to explain or

to recognize that he was suffering from “severe hyp ogly cemia due to dia

bete s ” when he called in on March 31st to repo rt his absence because he had suffe red from an extended period of hypoglycemia, which of ten causes “prolonged

phy sical sy

mpto ms, including headache, difficu lty thinking and co ncent ratin g, and hypothermia.” However, plaintiff testified that he had “stabilized and ev erything was fine” by t he time tha

t he had r eturned to work on

April 1st. Th us, plaintiff was physica lly able to give

defendant sufficient notice on or before April 2nd, even if he wer e physically

unable to do so on March 31st.

Plaintiff also a rgues that, even though defe ndant knew or had reason to know that he was a diabetic, defendant failed to advise him t hat the FMLA could cover diabetes-related absence s, even those involvingonly ep is od ic in ca pa ci ty. Plaintiff testified that he would often report a diabetes-related absence by merely

stating that he was “not doing well” and withoutexpressly

mentioning

his diabetes because defendant had never informed him that

the FMLA could cover

such an absence. Plaintiff

further testifie d that he d

id not t hin k that mentioning the diabe

tes-rel ated ca

use of the Marc

h 31st absence would have made a ny d if ference because he ha

d received attendance points for previous absences that he had advised defendant were diabetes-re lated. Thus, plaintiff argues that, due t o defendant’s alleged failure to inform plaintiff th at t he F MLA cove red diabetes and permitted intermittentleave f

or such a

conditio n, pla intiff gave defendant the requisite notice “as soon as [w as] practicable under the facts and cir

cumstanc es. ” Fo r example, plaintiff testified that he attempted to get medical certifi c ation from Dr. Do rsey for

his March 31st absence only after he learned fromhis wife, on April 5th, that the FMLA could have covered his diabetes-rel atedabsence s. Accor ding toNo. 02-3623 Brennem an v. Med Central He

alth 19

12 First, in so holding, we ne ed not and do not e xpres s any opini on upon whether plaint iff was an “eligi

ble employee” for pur po ses of the FML A aft er his termi nati on on April 4, 2000. Plaintiff contends t

hat genuine issues of material f act exist as to whe t her: 1) his di scharge was delayedpendi ng a g rie vance proces s, whic h ended in June of 2000; 2) whethe r his em ploym ent rela tionship cont inu ed for purpos es of

FMLA eligibility during that gr ievance; and 3) whether plainti ff gave suf ficient notice for his Ma rch 31, 2 000 , absence d uring his e mpl oyment rel ati onship. See Bie rmann v. Al uminum Co. of

Am. , No. 3- 98-CV-20159, 2000 WL 33362002, at * 8 (S. D. Iowa Jan. 21, 2000 ) (finding a genui ne pl aintiff’s wife, after she told Engle, on April 5th, tha t plaintiff’s March 31st absence was due to hisdiabete s, Engle informed her that plaintiff could have taken all of his diabetes-related

absences under the FML

A. However, as the record makes clear a

nd as he a cknowle dged in

his deposition, plaintiff, over

the course of his employme nt, received several informational notices from defe nd ant specifying that the FMLA may cover

diabetes as a chron ic heal th condition, whether for epis odic or c ontin

uin g incapacity . Plaintiff testified that he cannot recall e ver rea ding an y of these notices, that he mig

ht have r ead through one of them “real quickly,” and that, even

if he had read one of them, he would nothave no ticed that it mentioned diabetes. Plaintiff underscore dtha t no one ever “told” him about the FML A’s

covera ge of diabetes. Howe v er, plai ntiff’s l ack of notice, if

an y, concer ning t he FMLA’s covera ge of diabe tes stemsfrom his own willful ignorance , not f rom any culpability

on defendant’s part. The

FMLA does not r

equire d efenda nt to foresee that plaintiff wou l d not have read the many notices thatit had sent r

egard ing the F MLA’ s covera

ge and , thus, either to force plaintiff

to read tho se notice s or to con vey their content to him verbally. Contrary to plaintiff’s asse rtion, his alleged lack of notice conc erning the FML A’s coverage of diabetes does not a

bsolve him of h is failur e to advis e defendant that his Ma

rch 31st a bsence was diabetes -related on

or before April 2, 2000. In sum, we find that plaintiff failed to give defenda

nt the requ

isite notic e that his M arch 31st absence was FML

A-qualifying

in a timely fashion. 12 20 Brennem an v. Med Central He

alth No. 02-3623

issue of mater ial fact

over whet

her the plaint iff

’s discharge “was del ayed pending resolution of

the gr ievance [proce ss] u nder the CBA , and thus whether the emp loy er- employ ee rel ati onship cont inu ed for purpos es of FMLA eligibi lity

during the grievance process). Plaintiff also ar gues t

hat his termina tion wa s not yet fina l on A pril 4 th beca use, ac cord ing to Hilbreth, she and Engl e retai ned authority to halt the t ermination. Bec ause we hol d, howe ver, tha t no r eason able j ury coul d find t hat plaintiff was n ot re quir ed to give the requ isite notice on o r befo re Ap ril 2, 2000, and that plaint iff , in fac t, gave the nece ssary no tice within this ti me frame, any iss ues o f fa ct concerning any noti ce after April 4t h are imma terial. Second, we reject

plain tif f’s argument

that a genui ne iss ue of mat erial fact exi sts as t o whet

her pl aintif

f ha d accu mulate d eno ugh p oints to
warrant ter

mination. As of

December 19, 1999, plain tif f had accumulated

s even an d on e-third a ttenda nce p oints un der the old a ttenda nce p olicy. According to the ne w attend ance polic y, plainti ff’ s sevenand onethird poin ts conv erted into two an d on e-third p oints. Plai nti ff ’s March 31, 2000, abse nce re sulted in the acc umula tion of a noth er po int, raising his totalpoints to th ree and one- thi rd and tri ggerin g a suspen sion u pon the

accu mula ti on of t

he thir d point . Pl aint

if f ar gues tha t a g enui ne i ssu e of materi al fac t ex ist s as to how he recei ved seven an d one-th ird at tendance poin ts u n der the old a ttenda nce p olicy b ecau se G eorg e, dur ing his deposition, coul d c ount on ly f ive and one- thi rd points –a number insuff icient for entrance int o the new poi nt syst em–based up on a spread sheet tha t pl aintif f ga ve hi m. Howeve r, a s pre viou sly dis cuss ed, bec au se plaintiff’s co ntention relies up on a m iscon struction of G eorg e’s testimo ny, plain tif

f’s att empt to manuf

acture a ge nuine i ssue of materi al fact mu st fail. 2. Other Alleged Diabetes-Related Absences

The thrust

of plainti ff’s FMLA c laim, per his complain

t, is that defendant unlawfully

interfered with the exerc ise o f his FMLA rights by c ounting various absences that he alleges to have been FMLA-qua

lifying under

its “no-fault” atten d ance policy and by subseque ntly terminat ing plai ntiff pursuant to that policy. Plaintiff can

point to onl

y tw o instanc es in

which he received attendance

points for absences th at he al le ge dl y,No. 02-3623 Brennem an v. Med Central He

alth 21

13 Alt hou gh plain tif

f cont ends that he al so improperl y accumul ated poin ts based u

pon certain abse nces d ue to workers’ com pensation injuries, we d ecline to cons ider this contention b ecause plainti ff has present ed no
argu ment as t o how t

hes e abs ence s r elate to a nd f all unde r the FMLA. See Som me r, 317 F.3d at 691.

14 Plaintiff also test ifi ed that he we nt to see Dr. R oem er on that da y, February 16th, and tha t he was su re th at Dr. Roemer woul d have giv en him a medical note f

or defendant . However, a s disc u ss ed below, Dr. Ro eme r’s note is dated February 19th, the date which the FMLA form
stat es that

Dr. Roeme r sa w plainti ff . Moreover , a “ call -of f” s heet on February 19th–for h is Febru ary 20thabsence–st ates t hat pl aint iff

had gone to a doctor on the 19th. expressly informed

defenda nt wer e diabet

es-rela ted–his absences on February

16, 1996, and February

9, 1999. 13

As to the first

instance , plaintif

f testifie d that, o n February 16, 1 996 , he had informed one of the pharmac ists that he was “running late” for work b ecause his “[b]lood sugar [was] acting up.” An Early Leave/Late arrival form document s this. He te stified that, when he came into work on that day, he told a

n assista nt manager that he was having problems with his bloodsugar, and that he would have to see

a doctor. 14 A “call-off” form documents that the rea son for plaintiff’s absen ce was b ecause his “[ b]lo od suga r was messed up.” Due t o this i llness, plaintiff missed work from February 16, 1996, through February 2 0, 1996, with the exception of February

19, 2000, on which plaintiff was not scheduled to work. Plaintiff returned to work on February 21, 1996, the day

of his next scheduled

shift. Af ter retu rning to work, plaintiff submitted a note from Dr. Roemer, his family prac titioner, dated February 19, 1996, that stated that plain tiff’ s abse nce fro m Febru ary 16th t hrough 22 Brennem an v. Med Central He

alth No. 02-3623

15 Under defen dan t’s app licable attend ance polic y, plainti f f, by providing this doctor’s note, receive d only one attendance p oint for these absence s, which spanned four consec utive shifts.

16 Blackstone test ifi ed that

, when she woul d learn t hat an e mployee had been ill f

or three days and had received medical treatment f or the flu, she would alw ays r equest medi cal certif ication i n such a situation because the employee coul d have mis-communicated or misunderstood his true illness.

17 We rejec t plaintiff ’s alte rnati ve theor y that th is abs ence was FM LA-qualifyi ng because i t involved i ncapacit y for more than three calendar day s an d pla in ti ff

rec eiv ed trea tme nt fr om a healthcare provider. See C.F.R. § 825.11 4(a)(2). As evide nce, p laintiff poin ts to D r. Ro eme r’s
note sta ti ng that plai nti ff ’s absen ce f

rom Feb ruary 1 6th throug h the 2 0th

was due to the int esti nal flu and the FMLA certif icat ion for

m stat ing t

hat Februar y 20thwas from the “intestinal flu”; it made no mentionof plaintiff’s diabetic condition. 15 Plaintiff testified that Carol Blackstone (“Blac kstone”) , defend

ant’s Be nefits Manager, told plaint

iff that he should tr

y to hav e th e FM LA

cover the abse nce, and gave

him a n FM LA form for his doctor to fillout. 16 Plaintiff further testified that he followed Blackstone’s sugge stion eve n though it confuse d him

because he did not know that the FMLA covere d the f lu. Plaintiff later submitted an FMLA certifi cation form, signed by Dr. Roemer and dated F ebruary 22, 1996, that stated that plainti f f’s absence was due to “gastroe nteritis” and that he

sawplaint iff on February 19, 1996. Defendant denied plaintiff’s FMLA

certifi catio n requ est on the ground that plaintiff’s “gastroent eritis” did no t constitut e a “ser ious heal th condition” under the FMLA.

Even if plaintiff

had given

defendant timely a

nd sufficient notice t hat his Fe

bruary 16, 1996, a

bsence was diabe

tesrelated and, thus, FMLA-qualify ing, plaintiff, as a matter of law, failed to

give de fendant , upon its r eques t, medical certification

that confirmed that this absence was , in fact

, caused by plaintiff’s diabete s–the cond ition for which plaintiff would have given defendant the proper notice. 17 SeeNo. 02-3623 Brennem an v. Med Central He

alth 23

Dr. Roemer had seen plai nti ff in h is off

ice on Febru ary 19, 199 6. Thu s, plaintiff’s argum ent imp licitly r ests on the theo ry that the inte stinal flu

was a FM LA-q ualifyi ng se riou s heal th condi tion. To the exten t th at plaintiff has pres erved thi s ar gument for app eal, it must, n everth eless, fail.

To constitut e a “serious healt h condition,” the condit ion m us t involve–along with

at lea st a th ree- day per iod of inc apaci ty–tre atmen t f or that condi ti on by aheal th c are pr ovider eit her t wo o r more t imes or at least once as long as it

resul ts i n a regi men of cont inui ng tre atment under that provider’s supervisi on. 29 C.F.R. § 825 .114(a)(2)(i)( A) an d (B). Bec ause plainti ff’ s Febru ary 19th visit to Dr. Roemer upo n which he reli es consti tut ed only o ne instance of treatme nt, plaintiff must also dem onstra te that t

his vis it i nvolved a regimen of continuing t reatment under Dr. Roemer’s supervi sion. While plai nti ff test ifi ed that Dr. Roemer had presc ribed him m edica tio n for th e in tes ti nal fl u, t he ver y FMLA
cert if ication do cu ment that plai ntif f points t o as evidence states t hat the
treatment regi men i nvol ved onl y l eave f rom wor k, r est, and fluids. Y et,

as 29 C.F.R. § 825 .114(b) makes clear, “bed -rest, drink ing fluids, . . . and othersimi lar activi ties that can b e initiated withou t a visit to a he alth care provider. . . [are] [in]su fficient [by the mselv es] to co nsti tut e a regi men of conti nuing t

reatment .” In additi on, 29 C.F.R. § 825.114(c) st ates that, absent arisi ng com plicatio ns, the flu is generally not a FMLA -qualif ying “serious health c ond ition.” W hile on e cou ld argue that plain tif f’s diabetes

was a con dition c omp licating his flu, p laintiff testifie d that t he on ly
tr eatment that he re ceive d for th at abse nce w as from Dr. R oem er, w h o only treat ed him f

or th e flu. Thus , s uch a du al- condition theory w ould fail forlack o f the req uisite me dical tre atme nt “ relating to t hat same

con dition.” 29 C .F.R. § 825 .114 (a)(2 )(i). 29 U.S. C. § 2613(b). In requesting such certification, defe ndant discharged its duty

in seeking any

addition a l informationnecessary

for the leave to fall within the FML A. S ee Hammon , 165 F.3d at 450. Because the medical certification

that plain

tiff prov id ed was insuffic ient on its face, the F MLA’s provisi ons gove rning a n employ er’s re quest for re-certification where it “has reason to doubt the valid ity of the certification” are inapposite. 29 U.S.C. § 2613(c) and (d) (emphas is a dded). Here, rather than doubting the certification’s validity

, defend ant acc epted th e c ertification, including its represent atio n that “gastroenteritis” caused plaintiff’ s Feb ruary 16th a bsence. While plaintiff testified that he went to see Dr. Roemer, his family prac titioner, rather 24 Brennem an v. Med Central He

alth No. 02-3623

18 We not e t hat the “cal l- off ” she ets for

Februa ry 17t

h and 20t

h of 1996, which report that plainti ff was “ feeling ou t of sorts” and “ill,”
respe ctively, furt

her demonst

rat e th e expan se of

gener ali zed i nfor

mati on that defendant

had concerni ng the r eason for plain tif f’s absence. thanDr. Dorsey , his diabetes specialist, because a l ot of his i llness had to do with the flu, and that the flu had been activatinghis diabetes, making it “go ou t of control at the time,” there is no evidence that pl aintif f relay ed this informationto defendant. The FML A does not require an employ er to be c lairvoy

ant. 18

Regarding

the second in stance, plaintiff testified that, on Febr uary 9 , 1999, he had told one of his co-workers that he

was leaving work early

due to a problem

with his insulin pump. A n Early Leave/Late Ar rival form states that plaintiff’s early lea

ve was due to a “problem with his ins

ulin pump.” Plaintiff

neither saw a doctor nor provided a medical confirmation

of this problemfrom a

doctor. Plaintiff testified that

, bef ore work on February

9, 1999, his blood sugar was 361 and he was not fee ling we ll. Plaintif f furthe r testifie d that, although he gave himself a dose of insulin via

his pump, his blood sugar spiked to 500 at work and he “was fe eling r

eally bad.” According to plaintiff, he called Dr. Dorsey from work and she advised

him t o go home, disconnect the insulin pump, inject a dose of insulin with a needle to decrease hi s blood

s ugar, and then r

einsert t he insulin pump. Plain

tiff te stifie d that, while at home, it took approximately three to four hour s before his blood su

gar normalized. Accord

in g to plaintiff, this hyp ergly

cemic e pisode oc curred

because the insulin pump had become disconnected from his body, and he did not have to see a doctor because he fixed the problem with t h e pump.

As stated above, the critica l test for substantively-suff

icient notice is whether the information that the employee c onveyed to the employer was reasonably a dequate to apprise the employer of the employee ’s request to take leave for a seriousNo. 02-3623 Brennem an v. Med Central He

alth 25

19 In fact, the o nly e viden ce in the reco rd that su ggests tha t plaintiff might have rel ayed th is i nformat ion to def endant i s a swornletter, dated May 24, 200 0, by Pau l Nun ama ker (“N unam aker” ), the ph arma cist to whom plainti ff reported his February 9, 1999, absence. In that letter, Nunamaker stated th at he kn ew that plaintiff was having “pro blem s with his blood sugar. ” However, Nunamaker al so sta ted th at he ex cused plaintiff from work becau se he bel ieved t hat plain tif

f “was a good judge of how serious the problem truly was.” Even construi ng this l etter i n the light most f avorable t o plaintiff

, plai nti ff did not r ea so nably app rise def endant th at th e pro ble m wi th hi s bl ood su gar in capa cit ate d hi m o r rendered him un able to perform his duties. As N unam aker sta ted, he did
not know “ how se riou s t he probl em t rul y was ,” bu t, rat her, rel ied on plaintiff to deter mine w hether it warran ted him leaving work early. Thus, health condition that rendered him unable to perform his job. Brohm

, 149 F.3d a

t 523; Cavin, 346 F.3d at 725 (holding that the plainti ff, as a matte

r of law, had suff

iciently notified h

is employer during h

is employ

ment that h

is r eques t for unfores eeable

leave was for a FML

A-qualifying

serious health condition when he informed his employer that he ha

d been at the hospital and was unable to work due to an injury froma motorcycl e a ccident). Here, the only way that plaintiff’s problem with his insulin pump could constitute the requisite “seriou s health c ondition” is if it w ere “a

n illness, in ju ry, impairment, or physical or me ntal condition that involves . . . [a]ny

period of incapac ity . . . due to a

chronic serious health condition.” 29 C.F.R. § 825.114(a)( 2)( iii) (defining“a chronic serious health co ndition” as one that “(A) Requires periodic visits for treatment by a he al th care provider . . . ; (B) Continues over an extended period of

time

. . . ; and (C) May c ause episodic rather than a continuing period of incapacity

(e.g., . . . diabetes . . . )”) (emphas is added). We assume arguendo that defendant had sufficient notice that plaintiff suffered from diabete s as a chr

onic health

c ondition, and that defendant knew that plaintiff’s diabeti c conditioncaused

him to use an insulin pump. While plaintiff testified at length about the phy sica l effe cts that he experienced

due to the

insulin pump

becoming disconnected fromhis body, plaintif

f does not

claim t hathe rela

ye d this informationto defen

dant. 19 Rather, according to plaintiff, he 26 Brennem an v. Med Central He

alth No. 02-3623

forall Nunamaker or d efendant knew, the probl em wi th th e i nsu li n pump may si mply have c ause d plai nti ff to experi ence aminor

fl uctu ati on of

his blood sugar, p rom pting p laintiff, out of an abundance of caution, to want
to try to repai r his insu linpump to avert any poten tial , subs tant ial fluctuations of his blood sugar. merely told defendant

that h e was ha ving a problem w ith his insuli npump. This statement, as a matter of law, could n o t have reasonably

apprised de fendant that plaintiff’s February 9, 19 99, absence was due to a “seriou s health condition,” as described

above. I t is insuff icient to g ive rise to an inference that plaintiff was suffer ing from any

physical impairment

or illness

o r exp eriencing any

period of in ca pa ci ty. For all d

efenda nt k n ew, the “problem” with the insulin pump simply might have be en of a mechanical or minor nature t hat would not have effected the pump’s effectiveness

or plaintiff’s health. Perhaps, for example, the pump’s batte ry was running low and simply needed to be change d. Similarly, plaintiff’s mere statement that he was experiencinga problem with his insulin pump did not

reasona bly apprise defendant of

a conditi on that re

ndered h im unable to perf o rm his dutie s. We find that plainti ff, as a matter of law, failed to give defendant suff icient notice that his February

9, 1999, absence was FML A-qualifying

.
C. Plaint iff’s Motion

for Par tial Summ ary Judgm ent

Plaintiff contends that the district court ab use d its discretionby f

ailing to rule on plaintiff’s motion for leave to file a motion for partial summary judg ment on plaintiff’s FMLA claim, which plaintiff had filed on October 30, 2001, before it granted defendant’s motion for summary judgmen t, whichdefendant had

previously filed on September 21, 2001. Duringa pre-trial conference, the distri ct cou rt ruled t

hat it would hold plaintiff’s motion in abeyance pending resolution of defendant’s motion for summa ry judgmen t. Accor ding to defenda nt, plaintiff never objected to this ruling before the districtcourt. On May

2, 2002, the district court granted defendant’s motion for summary judgme nt on all of pla intiff’sNo. 02-3623 Brennem an v. Med Central He

alth 27

cl aims. Having

alread y di sposed of

the entir e case on it s merits, the district court never expressly r uled upon plaintiff’s motion for leave to file a partial summary judgment motion.

The district c ourt did not err in a djudicat i ng def endant’s

m oti onfor summary judg ment before plaintiff’s motion for partial summary judgme

nt. SeeKennedy v. City of Cleveland

, 797 F.2d 297, 305 (6th Cir. 1986) (recognizing the discretion of “t he tr ia l j ud ge wh o i s c ha rg ed wi th th e r es po ns ib il it y .

. . [of] mana ging h is docket and [e]nsuring an expeditious processingof th e liti gation”). This management of the motions was clearly

reasonable given

that defendant’s motion was filed before plaintiff’s motion and, importantly , that the resolutionof defendant’s motion could have disposed of the entire case–as it, in fact, did–while the resolution of plaintiff’s motion would

hav e di spo sed of o nl y pla in ti ff’ s FM LA claim. Moreover, in g ran ting defendant’s motion for summary judgmen t, the d istrict court expressly found that all of plaintiff’s claims failed as a matter of law. Thus, the district court implicitly found that plaintiff’s FML A claim could not succeed as a matte

r of law, such as to warra nt an award of partial summary judg

ment to plaintiff on this claim.

For the prec eding r

easons, we AFFI

RM the districtcourt’s grant of summar

y ju dgment t o defendant on

plaintiff’s federal and sta te claims

allegi ng disab ility

discrimination and

his federal claim alleging a

FMLA violation.