1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0121P (6th Cir.)

File Name: 04a0121p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

LEE BRENNEMAN,

Plaintiff-Appellant,

v.

MEDCENTRAL HEALTH

SYSTEM,

Defendant-Appellee.

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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 

Before: KENNEDY, ROGERS, and COOK, Circuit

Judges.

_________________

COUNSEL

ARGUED: Natalie F. Grubb, Medina, Ohio, for Appellant.

Michael N. Chesney, FRANTZ WARD, Cleveland, Ohio, for

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

2 Brenneman v. MedCentral Health No. 02-3623

1

Plaintiff also alleged state-law claims of promissory estoppel,

intentional infliction of emotional distress, and wrongful discharge

contrary to public policy, on which the district court, in a single order,

also awarded defendant summary judgment. While plaintiff, per his

notice of appeal, purports to appeal the district court’s entire summary

judgment order, plaintiff has presented no argument on these state-law

claims in his briefs and, thus, has failed to preserve such claims for

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

that the appellants abandoned an issue for purposes of appeal where they

failed to argue it in their briefs). 

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

WARD, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiff Lee Brenneman

(“plaintiff”) filed suit against his former employer

MedCentral Health System (“defendant”), alleging disability

discrimination in violation of the federal Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et. seq., and

the Ohio Revised Code § 4112.02 as well as a violation of the

federal Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601 et seq. 1 Plaintiff appeals the district court’s award

of summary judgment in favor of defendant on these claims.

For the reasons explained below, we AFFIRM the district

court’s grant of summary judgment to defendant.

I. Background

The record reveals the following facts. Plaintiff Brenneman

worked in defendant MedCentral Health System’s Pharmacy

Department for approximately twenty-seven years. Although

he began his employment in 1973 as a Pharmacy Helper, he

received a promotion to Pharmacy Technician in 1975.

Plaintiff remained in this position throughout the rest of his

employment. Plaintiff was diagnosed with diabetes mellitus
No. 02-3623 Brenneman v. MedCentral Health 3

in 1968. Although he sometimes has episodes of

hypoglycemia, in which he can experience seizures, shock,

and/or lightheadedness and incoherence, plaintiff generally

controls his condition with insulin. Plaintiff also controls his

diabetes by regulating his diet, exercising, and monitoring his

blood sugar level throughout the day using a glucometer.

Since 1998, plaintiff, whose diabetes has worsened with age,

has used an insulin pump to control this condition. 

During the course of his employment, plaintiff had

substantial attendance deficiencies. According to his

employment records, plaintiff had 193 unapproved absences

and 34 late arrivals or early departures during his

employment. These attendance deficiencies chiefly related to

medical problems other than plaintiff’s diabetes, such as six

work-related injuries and other general illnesses. Defendant

granted plaintiff FMLA leave on five occasions, none of

which was for diabetes. Per its attendance policy, defendant

disciplined plaintiff numerous times for his attendance

problems. For example, plaintiff received a number of verbal

and written warnings and suspensions. Although each

disciplinary form affords the employee an opportunity to

respond to the disciplinary action, plaintiff never once

protested the imposition of discipline or mentioned his

diabetes. 

On March 31, 2000, plaintiff informed defendant that he

“wasn’t doing well and . . . wouldn’t be in” that day. At that

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

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

met with his supervisors, Thomas Arkwright (“Arkwright”),

the Director of Pharmacy Services, and Brian George

(“George”), the Assistant Director of Pharmacy Services,

regarding his attendance deficiencies. During this meeting,

however, plaintiff never referenced his diabetes as the reason

for his latest absence. Under defendant’s attendance policy,

this absence triggered another suspension of plaintiff.

Moreover, pursuant to that policy, this suspension triggered

plaintiff’s termination because it was his third attendance4 Brenneman v. MedCentral Health No. 02-3623

2

Defendant contends that plaintiff’s apparent dishonesty during this

exit interview afforded an additional ground upon which to terminate

plaintiff, pursuant to its general disciplinary policy. Twice during the

meeting, Engle asked plaintiff what he had done on March 31st, the day

of his final absence. Twice plaintiff answered that he had been sick and

had remained at home in bed all day. Engle, however, had learned that

plaintiff had seen his workers’ compensation doctor on that same day for

non-diabetes-related reasons. When Engle confronted plaintiff with this

information, plaintiff admitted that he had not, in fact, spent the entire day

in bed. Plaintiff told Engle that he had simply forgotten about the

appointment. Plaintiff testified that he had sufficiently recovered from his

alleged hypoglycemic attack to drive himself approximately thirty-six

miles round-trip to his workers’ compensation doctor’s appointment at

10:30 a.m. Plaintiff further testified that he was, nevertheless, not well

enough to return to work. Defendant concedes, however, that this

apparent misrepresentation by plaintiff was not a factor in its decision to

terminate plaintiff; rather, according to defendant, it terminated plaintiff

pursuant to its attendance policy. Thus, while this post hoc, additional

ground for plaintiff’s termination may be relevant to the calculation of

any damages, it is irrelevant to the determination of whether defendant

improperly terminated plaintiff under the ADA or the FMLA in the first

instance. See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352,

361-62 (1995) (explaining that, when an employer discovers an

employee’s wrongdoing after improperly terminating the employee on

other grounds, “as a general rule . . . neither reinstatement nor front pay

is an appropriate remedy . . . . The beginning point in the . . . formulation

of a remedy should be calculation of backpay from the date of the

unlawful discharge to the date [that] the new information was

discovered”).

related suspension within five years. Thus, at the conclusion

of the meeting, plaintiff was terminated.

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

exit interview with Bruce Engle (“Engle”), defendant’s Vice

President of Human Resources. Plaintiff, for the first time,

mentioned that his March 31st absence was due to his

diabetes. Specifically, plaintiff presented a note from Dr.

Cynthia Dorsey, his diabetes specialist, stating that the

absence was due to an extended episode of diabetes-related

hypoglycemia. Defendant, nevertheless, finalized plaintiff’s

termination.2 
No. 02-3623 Brenneman v. MedCentral Health 5

II. Analysis

We review the district court’s order granting summary

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

(6th Cir. 1999). Summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and

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

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

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

Civ. P. 56(c). A “material” fact is one “that might affect the

outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S.

242, 248 (1986). A “genuine” issue exists if “the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Id. at 255. We must accept the nonmoving party’s evidence, and draw all justifiable inferences

in his favor. Id. “We may affirm a decision of the district

court if correct for any reason, including one not considered

below.” See United States Postal Serv. v. Nat’l Ass’n of

Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003).

A. Disability Discrimination

The ADA proscribes discrimination “against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112. Under the

ADA, an employer’s denial of employment opportunities to

an employee with a disability may constitute such unlawful

discrimination if the denial is based upon the employer’s need

“to make reasonable accommodation to the physical or mental

impairments of the employee or applicant.” 42 U.S.C.

§ 12112 (b)(5)(B) (1991). To establish a prima facie case of

discrimination under the ADA, a plaintiff must demonstrate

that: “(1) he is disabled; (2) he is otherwise qualified for the

position with or without reasonable accommodation; (3) he

suffered an adverse employment decision; (4) his employer

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

6 Brenneman v. MedCentral Health No. 02-3623

position remained open.” Hammon v. DHL Airways, Inc.,

165 F.3d 441, 449 (6th Cir. 1999). Once a plaintiff

establishes a prima facie case of disability discrimination, the

burden of production shifts to the employer to articulate a

legitimate, non-discriminatory reason for the adverse action

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

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

burden of production, the employee must demonstrate that the

proffered reason was, in fact, a pretext for unlawful disability

discrimination. Id. at 521. The plaintiff always retains the

ultimate burden of persuasion. Plant v. Morton Int’l, Inc.,

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

Because neither party has argued that an action for

handicap discrimination under Ohio law entails a different

legal analysis than that for disability discrimination under the

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

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

analyze plaintiff’s state and federal discrimination claims

under Ohio Revised Code § 4112 and the ADA, respectively,

solely under the ADA. See Plant, 212 F.3d at 938-39 (noting

that Ohio case law seems to support the proposition that the

ADA analysis applies to a Ohio claim of disability

discrimination, and assuming so for purposes of its analysis

because the parties have not argued otherwise); Martin v.

Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d

931, 934 n.2 (6th Cir. 2000) (holding that “[b]oth federal and

Ohio disability discrimination actions require the same

analysis”);City of Columbus Civil Serv. Comm’n v. McGlone,

697 N.E.2d 204, 206-07 (Ohio 1998) (holding that, to

establish a prima facie case of handicap discrimination under

Ohio law, which is “similar” to the ADA, a plaintiff must

show that: 1) he was handicapped; 2) the employer took an

adverse action against him, at least in part, because of his

handicap; and 3) the plaintiff, “though handicapped, can

safely and substantially perform the essential functions of the

job in question,” and noting that Ohio courts may look to the

ADA for guidance in the interpretation of Ohio law). But see

Wooten v. City of Columbus, 632 N.E.2d 605, 611 (Ohio Ct.
No. 02-3623 Brenneman v. MedCentral Health 7

3

As to plaintiff’s failure to establish a prima facie case, the district

court also held that plaintiff could not base his disability discrimination

claim on any alleged refusal by defendant to accommodate plaintiff by

granting him leave for his diabetes because plaintiff had never requested

any such accommodation from defendant. The district court also granted

summary judgment for defendant on the alternative ground that, even if

plaintiff were to have established a prima facie case of disability

discrimination, he, nevertheless, failed to demonstrate that defendant’s

proffered legitimate reasons for plaintiff’s termination were a pretext for

disability discrimination. 

4

Although plaintiff argues that he should have received medical leave

for certain other diabetes-related absences, absences for which he simply

informed defendant that he was “ill” or “not feeling well,” we decline to

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

App. 1993) (holding that 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

on plaintiff’s state and federaldisability discrimination claims

on the ground that plaintiff had failed to establish a prima

facie case of such discrimination; specifically, the district

court held that plaintiff was unqualified due to his inability to

satisfy defendant’s basic attendance requirements.3 We agree

with the district court that plaintiff, as a matter of law, has

failed to establish that he was otherwise qualified for the

position of Pharmacy Technician with or without reasonable

accommodation. Plaintiff’s disability discrimination claims

hinge upon defendant’s failure to grant plaintiff the

reasonable accommodation of FMLA leave for his diabetesrelated absences and defendant’s ultimate termination of

plaintiff under its attendance policy based upon its assessment

of points for these diabetes-related absences. 

However, even if defendant had granted plaintiff medical

leave for those absences which plaintiff specifically alleges

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

February 9, 1999; and March 31, 2000–,4 plaintiff, as a matter

8 Brenneman v. MedCentral Health No. 02-3623

not constitute a request for leave as an accommodation for his diabetes.

While plaintiff claimed that he would often relay this explanation when

he was experiencing diabetes-related illnesses, this statement would not

have reasonably apprised defendant that the absences were related to a

disability rather than some general illness. See Gantt v. Wilson Sporting

Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998) (“The employer is not

required to speculate as to the extent of the employee’s disability or the

employee’s need or desire for an accommodation.”).

of law, would not have been qualified to perform the essential

functions of the Pharmacy Technician position due to his

excessive absenteeism. See Gantt v. Wilson Sporting Goods

Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (“An employee who

cannot meet the attendance requirements of the job at issue

cannot be considered a ‘qualified’ individual protected by the

ADA.”);Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,

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

leave may be a reasonable accommodation under the ADA,

there is no presumption that uninterrupted attendance is an

essential job requirement, and that the employer must

demonstrate that such leave would be unreasonable and

impose an undue burden upon it, but noting that the plaintiff,

nevertheless, bears the burden of proving that she was

qualified for the position with such accommodation); Hayes

v. Cleveland Pneumatic Co., 634 N.E.2d 228, 232 (Ohio Ct.

App. 1993) (holding that plaintiff, for purposes of his Ohio

handicap discrimination claim, failed as a matter of law to

demonstrate that he was capable of performing one of the

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

excessive absenteeism). The district court found that, based

upon George’s affidavit and its supporting documentation,

plaintiff had been absent 193 times and had arrived late or left

early on 34 occasions within the five years preceding his

termination. Plaintiff claims that the payroll and clocking

reports attached to George’s affidavit are not the documents

upon which George relied in calculating plaintiff’s attendance

points. Rather, according to plaintiff, George calculated the

attendance points based upon a four-page spreadsheet, which

plaintiff presented him with and questioned him about during
No. 02-3623 Brenneman v. MedCentral Health 9

5

Plaintiff argues that defendant’s attendance policy was neither

uniform nor uniformly applied because each department had it own

attendance guidelines. Beth Hildreth (“Hildreth”), defendant’s Human

Resources Manager, testified that each department, including the

Pharmacy Department, had its own attendance guidelines and that these

could deviate as to the threshold that the employees must pass to enter

into the system-wide attendance point system. However, Hildreth

testified that the system-wide attendance point system uniformly applied

to each employee who entered that system. Defendant has provided

evidence of three, non-disabled employees in the Nursing Department

whom it terminated for excessive absenteeism under its new attendance

point system. Plaintiff does not dispute this evidence. Rather, plaintiff

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

to enter the attendance point system in the first instance was pursuant to

a non-uniformly applied attendance policy. Because plaintiff has offered

neither evidence of nor any meaningful argument on the alleged disparate

application of the Pharmacy Department’s attendance guidelines, we

decline to consider such an argument.

his deposition. Moreover, plaintiff underscores that George,

during his deposition, counted only five and one-third

attendance points from that spreadsheet–an amount

insufficient for defendant’s entrance into the new attendance

point system, under which defendant was ultimately

terminated.5 However, George testified that the referenced

spreadsheet was a document that he had prepared for an

unemployment compensation hearing after plaintiff’s

termination. George further testified that he would not have

used this spreadsheet in calculating plaintiff’s attendance

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

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

deposition. Thus, plaintiff, in attempting to manufacture a

genuine issue of material fact, misconstrued George’s

testimony; George never testified–nor does any record

evidence show–that he relied on this spreadsheet in

calculating plaintiff’s attendance points. Alternatively,

plaintiff argues that a document entitled “Leave of Absence

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

absences from non-work-related injuries and 66 absences

from work-related injuries,refutes defendant’s contention that

plaintiff had 227 absences. However, as defendant points out,

10 Brenneman v. MedCentral Health No. 02-3623

6

In so holding, we need not and do not express any opinion upon

whether plaintiff has satisfied the other elements of a prima facie claim

of disability discrimination or whether he has sufficiently demonstrated

that defendant’s proffered non-discriminatory reasons are pretexts for

disability discrimination. 

this document details only plaintiff’s absences for which

defendant granted him formal leaves of absence. In any

event, plaintiff seems to concede that he has been absent on

109 occasions since 1995. 

According to Arkwright’s affidavit,regular attendance is an

essential function of the Pharmacy Technician position, which

entails preparing and delivering medications to hospital

patients, ordering, receiving, and stocking medications, and

posting charges to patients’ accounts. Clearly, plaintiff could

not perform these duties when absent from defendant’s

premises. Arkwright furthertestified that plaintiff’s excessive

absences placed a great strain on the Pharmacy Department.

Specifically each time plaintiff was absent, Arkwright would

have to either call in an unscheduled employee to cover

plaintiff’s shift or else reassign plaintiff’s duties to employees

who were already scheduled to work. Consequently,

according to Arkwright, plaintiff’s excessive absenteeism

increased both employees’ workloads and the department’s

pay-roll expenses and decreased the Pharmacy Department’s

morale. While Arkwright tried to carry a number of

pharmacy employees whom he could call-in to work at a

moment’s notice to cover for an absent technician, it does not

follow, as plaintiff contends, that plaintiff’s absences did not

prejudice defendant whatsoever. Arkwright’s testimony

shows otherwise. In sum, plaintiff, as a matter of law, has

failed to demonstrate that he was qualified to perform the

essential functions of the Pharmacy Technician position, even

if he had received medical leave as a reasonable

accommodation for his diabetes; rather, the record is replete

with evidence of plaintiff’s excessive absenteeism, which

rendered him unqualified for that position.6 Thus, the district
No. 02-3623 Brenneman v. MedCentral Health 11

court properly granted defendant summary judgment on

plaintiff’s disabilitydiscrimination claims under the ADA and

Ohio law. 

B. FMLA Violation 

The FMLA affords an eligible employee up to twelve

weeks of leave within a twelve month period when the

employee suffers from “a serious health condition that makes

the employee unable to perform the functions of . . . [his]

position,” among other qualifying reasons. 29 U.S.C.

§ 2612(a)(1)(D). The term “serious health condition”

signifies “an illness, injury, impairment, or physical or mental

condition that involves . . . (A) inpatient care in a hospital,

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 facility” and

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

§ 825.114(a)(2)(iii) provides that a “serious health condition

involving continuing treatment by a health care provider

includes . . . [a]ny period of incapacity or treatment for such

incapacity due to a chronic serious health condition.” It

further defines a “chronic serious health condition [a]s one

which: (A) Requires periodic visits for treatment by a health

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

time (including recurring episodes of a single underlying

condition); and (C) May cause episodic rather than a

continuing period of incapacity (e.g., asthma, diabetes,

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

To invoke the FMLA’s protection for this qualifying

reason, the eligible employee, during his employment, must

request leave and give the employer notice that he is

requesting such leave for a serious health condition that

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

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

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

qualifying reason for requesting the leave,” the plaintiff’s

12 Brenneman v. MedCentral Health No. 02-3623

FMLA claim cannot lie where he requested medical leave and

received medical attention for his serious health condition

only after the termination of his employment); Hammon, 165

F.3d at 451 (holding that a FMLA claim does not lie where

the plaintiff failed to notify his employer of his qualifying

condition and to request leave for such condition during his

employment, but, rather, only did so after his employment had

ended). However, the eligible employee need not expressly

mention the FMLA as the 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 information that

the employee conveyed to the employer was reasonably

adequate to apprise the employer of the employee’s request to

take leave for a serious health condition that rendered him

unable to perform his job. Brohm, 149 F.3d at 523; Cavin v.

Honda of Am. Mfg., Inc., 346 F.3d 713, 725 (6th Cir. 2003)

(holding that the plaintiff, as a matter of law, had sufficiently

notified his employer during his employment that his request

for unforeseeable leave was for a FMLA-qualifying serious

health condition when he informed his employer that he had

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

from a motorcycle accident). 

The eligible employee must also give the employer this

substantive notice within the requisite time frame. When the

eligible employee’s leave for his serious health condition is

foreseeable based upon planned medical treatment, he must

“provide the employer with not less than 30 days’ notice,

before the date the leave is to begin.” See 29 U.S.C.

§ 2612(e)(2)(B) (excluding a situation in which “the date of

treatment requires leave to begin in less than 30 days” and

requiring the eligible employee, in such a situation, to

“provide such notice as is practicable”). In contrast, when the

approximate time of the needed leave is unforeseeable, the

eligible employee should give the employer notice of the need

for the leave “as soon as practicable under the facts and

circumstances of the particular case.” 29 C.F.R. § 825.303(a).

“It is expected that an employee will give notice to the

employer within no more than one or two workings days of
No. 02-3623 Brenneman v. MedCentral Health 13

learning of the need for leave, except in extraordinary

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

Once an employer receives sufficient notice thatthe eligible

employee is requesting leave for a FMLA-qualifying reason,

the employer bears the burden to gather any additional

information necessary for the leave to fall within the FMLA.

Hammon, 165 F.3d at 450. An employer may require the

eligible employee to provide, in a timely manner, certification

by a health care provider. 29 U.S.C. § 2613(a). Where the

leave is due to a serious health condition of the employee that

prevents him from performing his job, the requested

certification is sufficient if it states the date upon which the

serious health condition began, the condition’s probable

duration, the appropriate medical facts regarding the

condition within the health care provider’s knowledge, and a

statement that the employee is unable to perform his

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

The FMLA renders it “unlawful for any employer to

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

to exercise any right” that it affords. 29 U.S.C. § 2615(a)(1).

Furthermore, any violation of the FMLA–or of the regulations

implementing it–constitutes such unlawful interference.

29 C.F.R. § 825.220(b) (referencing an employer’s refusal to

authorize FMLA leave as an illustration of unlawful

interference). The FMLA also renders it “unlawful for any

employer to discharge or in any other manner discriminate

against any individual for opposing any practice made

unlawful” by the Act. For example, an employer may neither

use an employee’s “taking of FMLA leave as a negative

factor in [an] employment action[]” against that employee nor

count an employee’s FMLA leave under its “no fault”

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

Plaintiff’s complaint alleges that defendant unlawfully

interfered with plaintiff’s exercise of his rights under the

FMLA by counting various absences that he alleges were

FMLA-qualifying–absences on February 16, 1996;

14 Brenneman v. MedCentral Health No. 02-3623

7

Before the district court, defendant argued that any FMLA claim

based upon plaintiff’s absences on February 16, 1996, and February 9,

1999, was time-barred because plaintiff had received suspensions based

upon these absences and that these material adverse actions fell outside of

the applicable statute-of-limitations period. See 29 U.S.C. § 2617(c)(1)

and (2) (stating that an action may be brought under the FMLA “not later

than 2 years after the date of the last event constituting the alleged

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

willful violation may be brought within 3 years after such time); Butler v.

Owens-Brockway Plastic Prod., 199 F.3d 314, 317 (6th Cir. 2000)

(holding that a plaintiff’s termination claim was not time-barred simply

because it was based upon certain time-barred assessments of points for

absences where the termination was the first material adverse action, and

illustrating such a material adverse action with probation, termination, or

a failure to reinstate). Plaintiff countered that the “continuing violations”

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

Anderson, 928 F.2d 212 (6th Cir. 1991). Defendant, in response, argued

that there is no precedential support for the proposition that the

“continuing violations” theory applies to the FMLA, as it does to antidiscrimination law. The district court did not expressly determine this

statute-of-limitations issue when it held that plaintiff, as a matter of law,

had failed to give defendant sufficient notice that his absences on

February 16, 1996, and February 9, 1999, were FMLA-qualifying. In any

event, defendant, by neither raising it nor presenting any argument on it

in its brief, has abandoned the statute-of-limitations argument on appeal.

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

February 9, 1999; and March 31, 2000–under its “no-fault”

attendance policy and by subsequently terminating plaintiff

pursuant to that policy. The district court granted summary

judgment to defendant on plaintiff’s FMLA claim on the

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

defendant sufficient notice of a FMLA-qualifying reason for

these alleged diabetes-related absences.

7

1. March 31, 2000, Absence

On appeal, plaintiff contends that the district court erred in

granting defendant summary judgment because plaintiff had

timely and sufficiently notified defendant of his need for

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

latest absence triggering his termination under defendant’s
No. 02-3623 Brenneman v. MedCentral Health 15

8

Plaintiff argues that he did not mention his diabetes during the April

4th termination meeting because he was never asked why he had been

absent on March 31st. However, this argument is not persuasive. Given

that his supervisors were expressly terminating plaintiff based, in part,

upon this absence, a reasonable person in plaintiff’s position would have

referenced the reason necessitating that absence in an attempt to avert the

termination. 

attendance policy. On Friday, March 31st, plaintiff called

defendant to inform it that he would not be at work. In

particular, he stated that he “wasn’t doing well and . . .

wouldn’t be in today.” At that time, he did not mention that

his absence was in any way related to his diabetic condition.

Although plaintiff worked on Saturday and Sunday, April 1st

and 2nd, respectively, he made no further mention of the

reason for his one-day absence. On April 4th, his next

scheduled day of work, plaintiff met with supervisors

Arkwright and George regarding his attendance deficiencies.

During this meeting, however, plaintiff did not mention his

diabetes as the reason for his latest absence.8 Under

defendant’s attendance policy, this absence triggered both

plaintiff’s suspension and his termination because it was his

third attendance-related suspension within five years. On

April 5th, plaintiff’s wife informed Engle that plaintiff had

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

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

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

with Engle. Plaintiff, for the first time, mentioned that his

March 31st absence was due to his diabetes. Specifically,

plaintiff presented a note from Dr. Dorsey that stated that

“severe hypoglycemia due to diabetes” caused the absence

and that this absence was, thus, FMLA-qualifying. 

The information that plaintiff gave defendant–via his wife’s

statement to Engle or Dr. Dorsey’s note–may have been

sufficient to convey to defendant that plaintiff’s March 31st

absence was due to a serious health condition that rendered

16 Brenneman v. MedCentral Health No. 02-3623

9

Plaintiff also argues that a genuine issue of material fact exists as to

whether he had given defendant sufficient notice when he called in on

March 31st and simply stated that he “wasn’t doing well and . . . wouldn’t

be in today.” In support, plaintiff relies on Spangler v. Fed. Home Loan

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

Eighth Circuit held that a genuine issue of material fact regarding notice

existed because the defendant employer knew that the plaintiff suffered

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

past, and knew that her latest absence was from “depression again.” Id.

at 852-53. Here, plaintiff argues that defendant knew that plaintiff has

diabetes and that plaintiff had FMLA-qualifying, diabetes-related

absences on February 16, 1996, and February 9, 1999–absences for which

plaintiff contends defendant unlawfully penalized him. Unlike in

Spangler, however, plaintiff did not advise defendant that his March 31st

absence was related to a serious health condition–here, diabetes.

Moreover, plaintiff’s bare statement that he was unwell would not have

reasonably apprised defendant that his absence was FMLA-qualifying,

given plaintiff’s long history of diverse physical maladies, both workrelated and non-work-related. Likewise, plaintiff’s assertion that he

would habitually state only that he was “ill” or “not feeling well” when

he was experiencing a diabetes-related illness is unpersuasive. Thus, even

if plaintiff’s assertions were true–that defendant knew of plaintiff’s

diabetes and his past need for FMLA leave for diabetes-related absences–,

they are insufficient to create a genuine issue of material fact as to

whether plaintiff’s “call-in” gave defendant sufficient notice that his

March 31st absence was FMLA-qualifying.

10To the extent that defendant argues that his notice was temporally

sufficient because he met the time requirement for providing the

employer–upon its request–of medical certification to support a FMLAqualifying request for leave, such an argument is misplaced. See 29

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

plaintiff provided defendant with sufficient notice that his request for

leave was for a FMLA-qualifying condition in the first 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 employee’s

spokesperson, such as a spouse, may give the employer the

required notice if “the employee is unable to do so

personally”). However, plaintiff, as a matter of law, failed to

give defendant notice, even if it were substantively sufficient,

within the necessary time frame for unforeseeable leave.

10
No. 02-3623 Brenneman v. MedCentral Health 17

11In fact, plaintiff testified that he neither spoke with nor saw Dr.

Dorsey on March 31, 2000, for his diabetic condition. Rather, plaintiff

first saw Dr. Dorsey regarding his March 31st hypoglycemic episode on

April 5th, and Dr. Dorsey’s letter was based upon a reading of plaintiff’s

blood glucometer from the day of the absence.

First, plaintiff failed to give defendant notice “within no

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

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

receive notice from either plaintiff’s wife or Dr. Dorsey’s

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

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

Plaintiff argues that, although he worked on April 1st and

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

because Saturday and Sunday, the 1st and 2nd of April

respectively, are not normal working days for physicians.

However, the applicable regulation imposes no qualification

that only the normal working days of physicians be counted

in determining the timeliness of an employee’s notice. See id.

To the extent that plaintiff is implying that he needed to see

Dr. Dorsey to be able to give defendant the required

substantive notice, we fail to see how Dr. Dorsey possessed

any more information pertaining to whether plaintiff’s March

31st absence was due to a serious health condition rendering

him unable to work than what plaintiff himself possessed.11

While Dr. Dorsey may have informed plaintiff that the FMLA

might cover the absence and provided medical certification to

support any such claim, plaintiff need not have specifically

mentioned the FMLA nor provided medical certification to

meet his initial burden of giving defendant the requisite

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

C.F.R. § 825.311(b). 

In addition, no extraordinary circumstances existed to

render it unfeasible for plaintiff to have given defendant the

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

working day following plaintiff’s March 31st absence. See 29

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

18 Brenneman v. MedCentral Health No. 02-3623

the physical effects of his hypoglycemic episode, he was

physically unable to inform defendant that his March 31st

absence was due to that diabetes-related illness. In support,

plaintiff relies upon Dr. Dorsey’s letter. In that letter, Dr.

Dorsey stated that she believed that plaintiff had been unable

to explain or to recognize that he was suffering from “severe

hypoglycemia due to diabetes” when he called in on March

31st to report his absence because he had suffered from an

extended period of hypoglycemia, which often causes

“prolonged physical symptoms,including headache,difficulty

thinking and concentrating, and hypothermia.” However,

plaintiff testified that he had “stabilized and everything was

fine” by the time that he had returned to work on April 1st.

Thus, plaintiff was physically able to give defendant

sufficient notice on or before April 2nd, even if he were

physically unable to do so on March 31st. 

Plaintiff also argues that, even though defendant knew or

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

advise him that the FMLA could cover diabetes-related

absences, even those involving only episodic incapacity.

Plaintiff testified that he would often report a diabetes-related

absence by merely stating that he was “not doing well” and

without expressly mentioning his diabetes because defendant

had never informed him that the FMLA could cover such an

absence. Plaintiff further testified that he did not think that

mentioning the diabetes-related cause of the March 31st

absence would have made any difference because he had

received attendance points for previous absences that he had

advised defendant were diabetes-related. Thus, plaintiff

argues that, due to defendant’s alleged failure to inform

plaintiff that the FMLA covered diabetes and permitted

intermittent leave for such a condition, plaintiff gave

defendant the requisite notice “as soon as [was] practicable

under the facts and circumstances.” For example, plaintiff

testified that he attempted to get medical certification from

Dr. Dorsey for his March 31st absence only after he learned

from his wife, on April 5th, that the FMLA could have

covered his diabetes-related absences. According to
No. 02-3623 Brenneman v. MedCentral Health 19

12First, in so holding, we need not and do not express any opinion

upon whether plaintiff was an “eligible employee” for purposes of the

FMLA after his termination on April 4, 2000. Plaintiff contends that

genuine issues of material fact exist as to whether: 1) his discharge was

delayed pending a grievance process, which ended in June of 2000;

2) whether his employment relationship continued for purposes of FMLA

eligibility during that grievance; and 3) whether plaintiff gave sufficient

notice for his March 31, 2000, absence during his employment

relationship. See Biermann v. Aluminum Co. of Am., No. 3-98-CV-20159,

2000 WL 33362002, at *8 (S.D. Iowa Jan. 21, 2000) (finding a genuine

plaintiff’s wife, after she told Engle, on April 5th, that

plaintiff’s March 31st absence was due to his diabetes, Engle

informed her that plaintiff could have taken all of his

diabetes-related absences under the FMLA. However, as the

record makes clear and as he acknowledged in his deposition,

plaintiff, over the course of his employment, received several

informational notices from defendant specifying that the

FMLA may cover diabetes as a chronic health condition,

whether for episodic or continuing incapacity. Plaintiff

testified that he cannot recall ever reading any of these

notices, that he might have read through one of them “real

quickly,” and that, even if he had read one of them, he would

not have noticed that it mentioned diabetes. Plaintiff

underscored that no one ever “told” him about the FMLA’s

coverage of diabetes. However, plaintiff’s lack of notice, if

any, concerning the FMLA’s coverage of diabetes stems from

his own willful ignorance, not from any culpability on

defendant’s part. The FMLA does not require defendant to

foresee that plaintiff would not have read the many notices

that it had sent regarding the FMLA’s coverage and, thus,

either to force plaintiff to read those notices or to convey their

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

alleged lack of notice concerning the FMLA’s coverage of

diabetes does not absolve him of his failure to advise

defendant that his March 31st absence was diabetes-related on

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

to give defendant the requisite notice that his March 31st

absence was FMLA-qualifying in a timely fashion.12 

20 Brenneman v. MedCentral Health No. 02-3623

issue of material fact over whether the plaintiff’s discharge “was delayed

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

whether the employer-employee relationship continued for purposes of

FMLA eligibility during the grievance process). Plaintiff also argues that

his termination was not yet final on April 4th because, according to

Hilbreth, she and Engle retained authority to halt the termination.

Because we hold, however, that no reasonable jury could find that

plaintiff was not required to give the requisite notice on or before April

2, 2000, and that plaintiff, in fact, gave the necessary notice within this

time frame, any issues of fact concerning any notice after April 4th are

immaterial. 

Second, we reject plaintiff’s argument that a genuine issue of material

fact exists as to whether plaintiff had accumulated enough points to

warrant termination. As of December 19, 1999, plaintiff had accumulated

seven and one-third attendance points under the old attendance policy.

According to the new attendance policy, plaintiff’s seven and onethird points converted into two and one-third points. Plaintiff’s March 31,

2000, absence resulted in the accumulation of another point, raising his

total points to three and one-third and triggering a suspension upon the

accumulation of the third point. Plaintiff argues that a genuine issue of

material fact exists as to how he received seven and one-third attendance

points under the old attendance policy because George, during his

deposition, could count only five and one-third points–a number

insufficient for entrance into the new point system–based upon a

spreadsheet that plaintiff gave him. However, as previously discussed,

because plaintiff’s contention relies upon a misconstruction of George’s

testimony, plaintiff’s attempt to manufacture a genuine issue of material

fact must fail.

2. Other Alleged Diabetes-Related Absences

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

that defendant unlawfully interfered with the exercise of his

FMLA rights by counting various absences that he alleges to

have been FMLA-qualifying under its “no-fault” attendance

policy and by subsequently terminating plaintiff pursuant to

that policy. Plaintiff can point to only two instances in which

he received attendance points for absences that he allegedly,
No. 02-3623 Brenneman v. MedCentral Health 21

13Although plaintiff contends that he also improperly accumulated

points based upon certain absences due to workers’ compensation injuries,

we decline to consider this contention because plaintiff has presented no

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

See Sommer, 317 F.3d at 691.

14Plaintiff also testified that he went to see Dr. Roemer on that day,

February 16th, and that he was sure that Dr. Roemer would have given

him a medical note for defendant. However, as discussed below, Dr.

Roemer’s note is dated February 19th, the date which the FMLA form

states that Dr. Roemer saw plaintiff. Moreover, a “call-off” sheet on

February 19th–for his February 20th absence–states that plaintiff had

gone to a doctor on the 19th.

expressly informed defendant were diabetes-related–his

absences on February 16, 1996, and February 9, 1999.13

As to the first instance, plaintiff testified that, on

February 16, 1996, he had informed one of the pharmacists

that he was “running late” for work because his “[b]lood

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

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

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

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

a doctor.14 A “call-off” form documents that the reason for

plaintiff’s absence was because his “[b]lood sugar was

messed up.” Due to this illness, plaintiff missed work from

February 16, 1996, through February 20, 1996, with the

exception of February 19, 2000, on which plaintiff was not

scheduled to work. Plaintiff returned to work on February 21,

1996, the day of his next scheduled shift. After returning to

work, plaintiff submitted a note from Dr. Roemer, his family

practitioner, dated February 19, 1996, that stated that

plaintiff’s absence from February 16th through

22 Brenneman v. MedCentral Health No. 02-3623

15Under defendant’s applicable attendance policy, plaintiff, by

providing this doctor’s note, received only one attendance point for these

absences, which spanned four consecutive shifts.

16Blackstone testified that, when she would learn that an employee

had been ill for three days and had received medical treatment for the flu,

she would always request medical certification in such a situation because

the employee could have mis-communicated or misunderstood his true

illness.

17We reject plaintiff’s alternative theory that this absence was

FMLA-qualifying because it involved incapacity for more than three

calendar days and plaintiff received treatment from a healthcare provider.

See C.F.R. § 825.114(a)(2). As evidence, plaintiff points to Dr. Roemer’s

note stating that plaintiff’s absence from February 16th through the 20th

was due to the intestinal flu and the FMLA certification form stating that

February 20th was from the “intestinal flu”; it made no

mention of plaintiff’s diabetic condition.15 Plaintiff testified

that Carol Blackstone (“Blackstone”), defendant’s Benefits

Manager, told plaintiff that he should try to have the FMLA

cover the absence, and gave him an FMLA form for his

doctor to fill out.16 Plaintiff further testified that he followed

Blackstone’s suggestion even though it confused him because

he did not know that the FMLA covered the flu. Plaintiff

later submitted an FMLA certification form, signed by Dr.

Roemer and dated February 22, 1996, that stated that

plaintiff’s absence was due to “gastroenteritis” and that he

saw plaintiff on February 19, 1996. Defendant denied

plaintiff’s FMLA certification request on the ground that

plaintiff’s “gastroenteritis”did not constitute a “serious health

condition” under the FMLA. 

Even if plaintiff had given defendant timely and sufficient

notice that his February 16, 1996, absence was diabetesrelated and, thus, FMLA-qualifying, plaintiff, as a matter of

law, failed to give defendant, upon its request, medical

certification that confirmed that this absence was, in fact,

caused by plaintiff’s diabetes–the condition for which

plaintiff would have given defendant the proper notice.17 See
No. 02-3623 Brenneman v. MedCentral Health 23

Dr. Roemer had seen plaintiff in his office on February 19, 1996. Thus,

plaintiff’s argument implicitly rests on the theory that the intestinal flu

was a FMLA-qualifying serious health condition. To the extent that

plaintiff has preserved this argument for appeal, it must, nevertheless, fail.

To constitute a “serious health condition,” the condition must

involve–along with at least a three-day period of incapacity–treatment for

that condition by a health care provider either two or more times or at

least once as long as it results in a regimen of continuing treatment under

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

Because plaintiff’s February 19th visit to Dr. Roemer upon which he

relies constituted only one instance of treatment, plaintiff must also

demonstrate that this visit involved a regimen of continuing treatment

under Dr. Roemer’s supervision. While plaintiff testified that Dr. Roemer

had prescribed him medication for the intestinal flu, the very FMLA

certification document that plaintiff points to as evidence states that the

treatment regimen involved only leave from work, rest, and fluids. Yet,

as 29 C.F.R. § 825.114(b) makes clear, “bed-rest, drinking fluids, . . . and

other similar activities that can be initiated without a visit to a health care

provider . . . [are] [in]sufficient [by themselves] to constitute a regimen

of continuing treatment.” In addition, 29 C.F.R. § 825.114(c) states that,

absent arising complications, the flu is generally not a FMLA-qualifying

“serious health condition.” While one could argue that plaintiff’s diabetes

was a condition complicating his flu, plaintiff testified that the only

treatment that he received for that absence was from Dr. Roemer, who

only treated him for the flu. Thus, such a dual-condition theory would fail

for lack of the requisite medical treatment “relating to that same

condition.” 29 C.F.R. § 825.114(a)(2)(i). 

29 U.S.C. § 2613(b). In requesting such certification,

defendant discharged its duty in seeking any additional

information necessary for the leave to fall within the FMLA.

See Hammon, 165 F.3d at 450. Because the medical

certification that plaintiff provided was insufficient on its

face, the FMLA’sprovisions governing an employer’s request

for re-certification where it “has reason to doubt the validity

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

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

certification’s validity, defendant accepted the certification,

including its representation that “gastroenteritis” caused

plaintiff’s February 16th absence. While plaintiff testified

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

24 Brenneman v. MedCentral Health No. 02-3623

18We note that the “call-off” sheets for February 17th and 20th of

1996, which report that plaintiff was “feeling out of sorts” and “ill,”

respectively, further demonstrate the expanse of generalized information

that defendant had concerning the reason for plaintiff’s absence.

than Dr. Dorsey, his diabetes specialist, because a lot of his

illness had to do with the flu, and that the flu had been

activating his diabetes, making it “go out of control at the

time,” there is no evidence that plaintiff relayed this

information to defendant. The FMLA does not require an

employer to be clairvoyant.18

Regarding the second instance, plaintiff testified that, on

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

was leaving work early due to a problem with his insulin

pump. An Early Leave/Late Arrival form states that

plaintiff’s early leave was due to a “problem with his insulin

pump.” Plaintiff neither saw a doctor nor provided a medical

confirmation of this problem from a doctor. Plaintiff testified

that, before work on February 9, 1999, his blood sugar was

361 and he was not feeling well. Plaintiff further testified that,

although he gave himself a dose of insulin via his pump, his

blood sugar spiked to 500 at work and he “was feeling really

bad.” According to plaintiff, he called Dr. Dorsey from work

and she advised him to go home, disconnect the insulin pump,

inject a dose of insulin with a needle to decrease his blood

sugar, and then reinsert the insulin pump. Plaintiff testified

that, while at home, it took approximately three to four hours

before his blood sugar normalized. According to plaintiff,

this hyperglycemic episode occurred because the insulin

pump had become disconnected from his body, and he did not

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

pump. 

As stated above, the critical test for substantively-sufficient

notice is whether the information that the employee conveyed

to the employer was reasonably adequate to apprise the

employer of the employee’s request to take leave for a serious
No. 02-3623 Brenneman v. MedCentral Health 25

19In fact, the only evidence in the record that suggests that plaintiff

might have relayed this information to defendant is a sworn letter, dated

May 24, 2000, by Paul Nunamaker (“Nunamaker”), the pharmacist to

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

Nunamaker stated that he knew that plaintiff was having “problems with

his blood sugar.” However, Nunamaker also stated that he excused

plaintiff from work because he believed that plaintiff “was a good judge

of how serious the problem truly was.” Even construing this letter in the

light most favorable to plaintiff, plaintiff did not reasonably apprise

defendant that the problem with his blood sugar incapacitated him or

rendered him unable to perform his duties. As Nunamaker stated, he did

not know “how serious the problem truly was,” but, rather, relied on

plaintiff to determine whether it warranted him leaving work early. Thus,

health condition that rendered him unable to perform his job.

Brohm, 149 F.3d at 523; Cavin, 346 F.3d at 725 (holding that

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

employer during his employment that his request for

unforeseeable leave was for a FMLA-qualifying serious

health condition when he informed his employer that he had

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

from a motorcycle accident). Here, the only way that

plaintiff’s problem with his insulin pump could constitute the

requisite “serious health condition” is if it were “an illness,

injury, impairment, or physical or mental condition that

involves . . . [a]ny period of incapacity . . . due to a chronic

serious health condition.” 29 C.F.R. § 825.114(a)(2)(iii)

(defining “a chronic serious health condition” as one that

“(A) Requires periodic visits for treatment by a health care

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

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

period of incapacity (e.g., . . . diabetes . . . )”) (emphasis

added). We assume arguendo that defendant had sufficient

notice that plaintiff suffered from diabetes as a chronic health

condition, and that defendant knew that plaintiff’s diabetic

condition caused him to use an insulin pump. While plaintiff

testified at length about the physical effects that he

experienced due to the insulin pump becoming disconnected

from his body, plaintiff does not claim that he relayed this

information to defendant.19 Rather, according to plaintiff, he

26 Brenneman v. MedCentral Health No. 02-3623

for all Nunamaker or defendant knew, the problem with the insulin pump

may simply have caused plaintiff to experience a minor fluctuation of his

blood sugar, prompting plaintiff, out of an abundance of caution, to want

to try to repair his insulin pump to avert any potential, substantial

fluctuations of his blood sugar.

merely told defendant that he was having a problem with his

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

have reasonably apprised defendant that plaintiff’s

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

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

to an inference that plaintiff was suffering from any physical

impairment or illness or experiencing any period of

incapacity. For all defendant knew, the “problem” with the

insulin pump simply might have been of a mechanical or

minor nature that would not have effected the pump’s

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

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

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

experiencing a problem with his insulin pump did not

reasonably apprise defendant of a condition that rendered him

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

matter of law, failed to give defendant sufficient notice that

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

C. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff contends that the district court abused its

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

file a motion for partial summary judgment on plaintiff’s

FMLA claim, which plaintiff had filed on October 30, 2001,

before it granted defendant’s motion for summary judgment,

which defendant had previously filed on September 21, 2001.

During a pre-trial conference, the district court ruled that it

would hold plaintiff’s motion in abeyance pending resolution

of defendant’s motion for summary judgment. According to

defendant, plaintiff never objected to this ruling before the

district court. On May 2, 2002, the district court granted

defendant’s motion for summary judgment on all of plaintiff’s
No. 02-3623 Brenneman v. MedCentral Health 27

claims. Having already disposed of the entire case on its

merits, the district court never expressly ruled upon plaintiff’s

motion for leave to file a partial summary judgment motion.

The district court did not err in adjudicating defendant’s

motion for summary judgment before plaintiff’s motion for

partial summary judgment. See Kennedy v. City of Cleveland,

797 F.2d 297, 305 (6th Cir. 1986) (recognizing the discretion

of “the trial judge who is charged with the responsibility . . .

[of] managing his docket and [e]nsuring an expeditious

processing of the litigation”). This management of the

motions was clearly reasonable given that defendant’s motion

was filed before plaintiff’s motion and, importantly, that the

resolution of defendant’s motion could have disposed of the

entire case–as it, in fact, did–while the resolution of plaintiff’s

motion would have disposed of only plaintiff’s FMLA claim.

Moreover, in granting defendant’s motion for summary

judgment, the district court expressly found that all of

plaintiff’s claims failed as a matter of law. Thus, the district

court implicitly found that plaintiff’s FMLA claim could not

succeed as a matter of law, such as to warrant an award of

partial summary judgment to plaintiff on this claim. 

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

grant of summary judgment to defendant on plaintiff’s federal

and state claims alleging disability discrimination and his

federal claim alleging a FMLA violation.