RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Brenneman v. MedCentral Health No. 02-3623 ELECTRONIC CITATION: 2004 FED App. 0121P (6th Cir.) File Name: 04a0121p.06 Appellant. Michael N. Chesney, Michael J. Frantz, FRANTZ WARD, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________
LEE BRENNEMAN, X KENNEDY, Circuit Judge. Plaintiff Lee Brenneman - (“plaintiff”) filed suit against his former employer Plaintiff-Appellant, MedCentral Health System (“defendant”), alleging disability - - No. 02-3623 discrimination in violation of the federal Americans with v. - Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et. seq., and > the Ohio Revised Code § 4112.02 as well as a violation of the , federal Family and Medical Leave Act (“FMLA”), 29 U.S.C. MED CENTRAL HEALTH - SYSTEM , §§ 2601 et seq. 1 Plaintiff appeals the district court’s award - of summary judgment in favor of defendant on these claims. Defendant-Appellee. - For the reasons explained below, we AFFIRM the district - court’s grant of summary judgment to defendant. N Appeal from the United States District Court I. Background for the Northern District of Ohio at Cleveland. No. 01-01052—John M. Manos, District Judge. The record reveals the following facts. Plaintiff Brenneman worked in defendant MedCentral Health System’s Pharmacy Argued: March 18, 2004 Department for approximately twenty-seven years. Although he began his employment in 1973 as a Pharmacy Helper, he Decided and Filed: April 26, 2004 received a promotion to Pharmacy Technician in 1975. Plaintiff remained in this position throughout the rest of his Before: KENNEDY, ROGERS, and COOK, Circuit employment. Plaintiff was diagnosed with diabetes mellitus Judges. 1 _________________ Plaintiff also alleged state-law claims of prom issory esto ppe l, intentional infliction of emotional distress, and wrongful discharge COUNSEL contrary to pub lic polic y, on which the district court, in a single order, also awarded defendant summ ary jud gment. W hile plaintiff, per his notice of appeal, purports to appe al the district court’s entire summary ARGUED: Natalie F. Grubb, Medina, Ohio, for Appellant. judgment order, plaintiff has presented no argument on these state-law Michael N. Chesney, FRANTZ WARD, Cleveland, Ohio, for claims in his briefs and, thus, has failed to preserve such claims for Appellee. ON BRIEF: Natalie F. Grubb, Medina, Ohio, for app eal. See Som mer v. Da vis, 317 F.3d 686, 691 (6th Cir. 2003) (holding that the appellants abandoned an issue for purposes of appeal where they failed to argue it in their briefs).
1 No. 02-3623 Brenneman v. MedCentral Health 3 4 Brenneman v. MedCentral Health No. 02-3623
in 1968. Although he sometimes has episodes of related suspension within five years. Thus, at the conclusion hypoglycemia, in which he can experience seizures, shock, of the meeting, plaintiff was terminated. and/or lightheadedness and incoherence, plaintiff generally controls his condition with insulin. Plaintiff also controls his On April 6, 2000, plaintiff requested and attended a final diabetes by regulating his diet, exercising, and monitoring his exit interview with Bruce Engle (“Engle”), defendant’s Vice blood sugar level throughout the day using a glucometer. President of Human Resources. Plaintiff, for the first time, Since 1998, plaintiff, whose diabetes has worsened with age, mentioned that his March 31st absence was due to his has used an insulin pump to control this condition. diabetes. Specifically, plaintiff presented a note from Dr. Cynthia Dorsey, his diabetes specialist, stating that the During the course of his employment, plaintiff had absence was due to an extended episode of diabetes-related substantial attendance deficiencies. According to his hypoglycemia. Defendant, nevertheless, finalized plaintiff’s employment records, plaintiff had 193 unapproved absences termination.2 and 34 late arrivals or early departures during his employment. These attendance deficiencies chiefly related to medical problems other than plaintiff’s diabetes, such as six 2 work-related injuries and other general illnesses. Defendant Defendant contends that plaintiff’s apparent dish onesty during this granted plaintiff FMLA leave on five occasions, none of exit interview afforded an additional ground upon which to terminate plaintiff, pursuant to its general disciplinary policy. Twice during the which was for diabetes. Per its attendance policy, defendant meeting, Engle asked plaintiff what he had done on March 31st, the day disciplined plaintiff numerous times for his attendance of his final absence. Twice plaintiff answered that he had been sick and problems. For example, plaintiff received a number of verbal had remained at home in bed all day. Engle, however, had learned that and written warnings and suspensions. Although each plaintiff had seen his workers’ compensation doctor on that same day for disciplinary form affords the employee an opportunity to non-diabetes-related reasons. When Engle confronted plaintiff with this information, plaintiff admitted that he ha d not, in fact, spent the entire day respond to the disciplinary action, plaintiff never once in bed. Plaintiff told Engle that he had simply fo rgotten about the protested the imposition of discipline or mentioned his app ointment. Plaintiff testified that he had sufficiently recovered from his diabetes. alleged hypoglycemic attack to drive himself approximately thirty-six miles round-trip to his workers’ compensation doctor’s appointment at On March 31, 2000, plaintiff informed defendant that he 10:30 a.m. Plaintiff further testified that he was, nevertheless, not well “wasn’t doing well and . . . wouldn’t be in” that day. At that enough to return to work. De fendant concedes, how ever, tha t this apparent misrepresentation by plaintiff was not a factor in its decision to time, he did not mention that his absence was in any way terminate plaintiff; rather, acco rding to defendant, it terminated plaintiff related to his diabetic condition. On April 4, 2000, plaintiff pursuant to its attendance policy. Thus, while this post hoc, additional met with his supervisors, Thomas Arkwright (“Arkwright”), ground for plaintiff’s termination may be relevant to the calculation of the Director of Pharmacy Services, and Brian George any damages, it is irrelevant to the determination of whether defendant (“George”), the Assistant Director of Pharmacy Services, improperly terminated plaintiff under the A DA or the FM LA in the first instance. See McKen non v. Nashville B ann er Pu bl’g Co., 513 U.S. 352, regarding his attendance deficiencies. During this meeting, 361-62 (1995) (explaining that, when an employer discovers an however, plaintiff never referenced his diabetes as the reason emp loyee’s wrongdoing after improperly terminating the employee on for his latest absence. Under defendant’s attendance policy, other grounds, “as a general rule . . . neither reinstatement nor front pay this absence triggered another suspension of plaintiff. is an appropriate remedy . . . . The beginning point in the . . . formulation Moreover, pursuant to that policy, this suspension triggered of a remedy should be calculation of backpay from the date of the unlawful discharge to the date [that] the new information was plaintiff’s termination because it was his third attendance- discovered”). No. 02-3623 Brenneman v. MedCentral Health 5 6 Brenneman v. MedCentral Health No. 02-3623
II. Analysis position remained open.” Hammon v. DHL Airways, Inc., 165 F.3d 441, 449 (6th Cir. 1999). Once a plaintiff We review the district court’s order granting summary establishes a prima facie case of disability discrimination, the judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 burden of production shifts to the employer to articulate a (6th Cir. 1999). Summary judgment is proper “if the legitimate, non-discriminatory reason for the adverse action pleadings, depositions, answers to interrogatories, and against plaintiff. Brohm v. JH Properties, Inc., 149 F.3d 517, admissions on file, together with affidavits, if any, show that 520-21 (6th Cir. 1998) Once the employer discharges this there is no genuine issue of material fact and that the moving burden of production, the employee must demonstrate that the party is entitled to a judgment as a matter of law.” Fed. R. proffered reason was, in fact, a pretext for unlawful disability Civ. P. 56(c). A “material” fact is one “that might affect the discrimination. Id. at 521. The plaintiff always retains the outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S. ultimate burden of persuasion. Plant v. Morton Int’l, Inc., 242, 248 (1986). A “genuine” issue exists if “the evidence is 212 F.3d 929, 936 (6th Cir. 2000). such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 255. We must accept the non- Because neither party has argued that an action for moving party’s evidence, and draw all justifiable inferences handicap discrimination under Ohio law entails a different in his favor. Id. “We may affirm a decision of the district legal analysis than that for disability discrimination under the court if correct for any reason, including one not considered ADA, and because Ohio case law tends to suggest that it below.” See United States Postal Serv. v. Nat’l Ass’n of entails the same legal analysis as that under the ADA, we will Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003). analyze plaintiff’s state and federal discrimination claims under Ohio Revised Code § 4112 and the ADA, respectively, A. Disability Discrimination solely under the ADA. See Plant, 212 F.3d at 938-39 (noting that Ohio case law seems to support the proposition that the The ADA proscribes discrimination “against a qualified ADA analysis applies to a Ohio claim of disability individual with a disability because of the disability of such discrimination, and assuming so for purposes of its analysis individual in regard to job application procedures, the hiring, because the parties have not argued otherwise); Martin v. advancement, or discharge of employees, employee Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d compensation, job training, and other terms, conditions, and 931, 934 n.2 (6th Cir. 2000) (holding that “[b]oth federal and privileges of employment.” 42 U.S.C. § 12112. Under the Ohio disability discrimination actions require the same ADA, an employer’s denial of employment opportunities to analysis”); City of Columbus Civil Serv. Comm’n v. McGlone, an employee with a disability may constitute such unlawful 697 N.E.2d 204, 206-07 (Ohio 1998) (holding that, to discrimination if the denial is based upon the employer’s need establish a prima facie case of handicap discrimination under “to make reasonable accommodation to the physical or mental Ohio law, which is “similar” to the ADA, a plaintiff must impairments of the employee or applicant.” 42 U.S.C. show that: 1) he was handicapped; 2) the employer took an § 12112 (b)(5)(B) (1991). To establish a prima facie case of adverse action against him, at least in part, because of his discrimination under the ADA, a plaintiff must demonstrate handicap; and 3) the plaintiff, “though handicapped, can that: “(1) he is disabled; (2) he is otherwise qualified for the safely and substantially perform the essential functions of the position with or without reasonable accommodation; (3) he job in question,” and noting that Ohio courts may look to the suffered an adverse employment decision; (4) his employer ADA for guidance in the interpretation of Ohio law). But see knew or had reason to know of his disability; and (5) his Wooten v. City of Columbus, 632 N.E.2d 605, 611 (Ohio Ct. No. 02-3623 Brenneman v. MedCentral Health 7 8 Brenneman v. MedCentral Health No. 02-3623
App. 1993) (holding that Ohio disability discrimination law of law, would not have been qualified to perform the essential is “at least as broad, if not broader, in scope than” the ADA) functions of the Pharmacy Technician position due to his (emphasis added). excessive absenteeism. See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (“An employee who The district court granted summary judgment for defendant cannot meet the attendance requirements of the job at issue on plaintiff’s state and federal disability discrimination claims cannot be considered a ‘qualified’ individual protected by the on the ground that plaintiff had failed to establish a prima ADA.”); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., facie case of such discrimination; specifically, the district 155 F.3d 775, 781-82 (6th Cir. 1998) (holding that medical court held that plaintiff was unqualified due to his inability to leave may be a reasonable accommodation under the ADA, satisfy defendant’s basic attendance requirements.3 We agree there is no presumption that uninterrupted attendance is an with the district court that plaintiff, as a matter of law, has essential job requirement, and that the employer must failed to establish that he was otherwise qualified for the demonstrate that such leave would be unreasonable and position of Pharmacy Technician with or without reasonable impose an undue burden upon it, but noting that the plaintiff, accommodation. Plaintiff’s disability discrimination claims nevertheless, bears the burden of proving that she was hinge upon defendant’s failure to grant plaintiff the qualified for the position with such accommodation); Hayes reasonable accommodation of FMLA leave for his diabetes- v. Cleveland Pneumatic Co., 634 N.E.2d 228, 232 (Ohio Ct. related absences and defendant’s ultimate termination of App. 1993) (holding that plaintiff, for purposes of his Ohio plaintiff under its attendance policy based upon its assessment handicap discrimination claim, failed as a matter of law to of points for these diabetes-related absences. demonstrate that he was capable of performing one of the essential functions of his job–regular attendance–due to his However, even if defendant had granted plaintiff medical excessive absenteeism). The district court found that, based leave for those absences which plaintiff specifically alleges upon George’s affidavit and its supporting documentation, were diabetes-related–absences on February 16, 1996; plaintiff had been absent 193 times and had arrived late or left February 9, 1999; and March 31, 2000–,4 plaintiff, as a matter early on 34 occasions within the five years preceding his termination. Plaintiff claims that the payroll and clocking reports attached to George’s affidavit are not the documents 3 upon which George relied in calculating plaintiff’s attendance As to plaintiff’s failure to establish a prim a facie case, the district court also held that plaintiff could not ba se his disability discrimination points. Rather, according to plaintiff, George calculated the claim on any alleged refusal by defend ant to accommodate plaintiff by attendance points based upon a four-page spreadsheet, which granting him leave for his diabetes because plaintiff had never requested plaintiff presented him with and questioned him about during any such accommoda tion from defendant. The district court also granted summary judgment for defendant on the alternative ground that, even if plaintiff were to have established a prima facie case o f disability discrimination, he, nevertheless, failed to dem onstrate that de fendant’s not constitute a request for leave as an accom mod ation for his diabetes. proffered legitimate reasons for plaintiff’s termination were a pretext for W hile plaintiff claimed that he would often relay this explanation when disab ility discrimination. he was experiencing diabetes-related illnesses, this statement would not 4 have reaso nably apprised d efendant that the absences were related to a Although plaintiff argues that he should have received medical leave disab ility rather than some general illness. See Ga ntt v. Wilson Sporting for certain other diabetes-related absences, absences for which he simp ly Goods Co., 143 F.3d 1042, 10 46-47 (6th Cir. 1998) (“The employer is not informed defendant that he was “ill” or “not feeling well,” we decline to required to speculate as to the extent of the employee’s disability or the consider these absences in our analysis since, as a matter of law, they do employee’s need or desire for an accommodation.”). No. 02-3623 Brenneman v. MedCentral Health 9 10 Brenneman v. MedCentral Health No. 02-3623
his deposition. Moreover, plaintiff underscores that George, this document details only plaintiff’s absences for which during his deposition, counted only five and one-third defendant granted him formal leaves of absence. In any attendance points from that spreadsheet–an amount event, plaintiff seems to concede that he has been absent on insufficient for defendant’s entrance into the new attendance 109 occasions since 1995. point system, under which defendant was ultimately terminated.5 However, George testified that the referenced According to Arkwright’s affidavit, regular attendance is an spreadsheet was a document that he had prepared for an essential function of the Pharmacy Technician position, which unemployment compensation hearing after plaintiff’s entails preparing and delivering medications to hospital termination. George further testified that he would not have patients, ordering, receiving, and stocking medications, and used this spreadsheet in calculating plaintiff’s attendance posting charges to patients’ accounts. Clearly, plaintiff could points, and that he had used other documents, such as point not perform these duties when absent from defendant’s reports and call-off sheets, that were not before him during his premises. Arkwright further testified that plaintiff’s excessive deposition. Thus, plaintiff, in attempting to manufacture a absences placed a great strain on the Pharmacy Department. genuine issue of material fact, misconstrued George’s Specifically each time plaintiff was absent, Arkwright would testimony; George never testified–nor does any record have to either call in an unscheduled employee to cover evidence show–that he relied on this spreadsheet in plaintiff’s shift or else reassign plaintiff’s duties to employees calculating plaintiff’s attendance points. Alternatively, who were already scheduled to work. Consequently, plaintiff argues that a document entitled “Leave of Absence according to Arkwright, plaintiff’s excessive absenteeism History,” which provides that plaintiff, since 1995, had 43 increased both employees’ workloads and the department’s absences from non-work-related injuries and 66 absences pay-roll expenses and decreased the Pharmacy Department’s from work-related injuries, refutes defendant’s contention that morale. While Arkwright tried to carry a number of plaintiff had 227 absences. However, as defendant points out, pharmacy employees whom he could call-in to work at a moment’s notice to cover for an absent technician, it does not follow, as plaintiff contends, that plaintiff’s absences did not 5 Plaintiff argues that defendant’s attendance policy was neither prejudice defendant whatsoever. Arkwright’s testimony uniform nor un iformly applied because each department had it own shows otherwise. In sum, plaintiff, as a matter of law, has attendance guidelines. Beth Hildreth (“Hildreth”), defendant’s Human failed to demonstrate that he was qualified to perform the Resources Manage r, testified that each department, including the essential functions of the Pharmacy Technician position, even Pharmacy Departm ent, had its own attendance gu idelines and that these could deviate as to the threshold that the employees must pass to enter if he had received medical leave as a reasonable into the system-wide attendance point system. However, Hildreth accommodation for his diabetes; rather, the record is replete testified that the system-wide attendance point system uniformly applied with evidence of plaintiff’s excessive absenteeism, which to each employee who entered that system. Defendant has provided rendered him unqualified for that position.6 Thus, the district evidence of three, non-disabled employees in the Nursing Department whom it terminated for excessive absenteeism under its new attendance point system. P laintiff does not dispute this evidence. R ather, p laintiff seems to argue that his accumulation of seven and one-third points so as 6 to enter the attend ance point system in the first instance was pursuan t to In so holding, we need not and do not express any opinion upon a non-uniformly applied attendance policy. Because plaintiff has offered whether plaintiff has satisfied the other elements of a prima facie claim neither evidence of nor any meaningful argume nt on the alleged disparate of disability discrimination or whether he has sufficiently demonstrated application of the P harmacy D epartment’s attendance guidelines, we that defendant’s proffered non-discriminatory reasons are pretexts for decline to co nsider such an argument. disab ility discrimination. No. 02-3623 Brenneman v. MedCentral Health 11 12 Brenneman v. MedCentral Health No. 02-3623
court properly granted defendant summary judgment on FMLA claim cannot lie where he requested medical leave and plaintiff’s disability discrimination claims under the ADA and received medical attention for his serious health condition Ohio law. only after the termination of his employment); Hammon, 165 F.3d at 451 (holding that a FMLA claim does not lie where B. FMLA Violation the plaintiff failed to notify his employer of his qualifying condition and to request leave for such condition during his The FMLA affords an eligible employee up to twelve employment, but, rather, only did so after his employment had weeks of leave within a twelve month period when the ended). However, the eligible employee need not expressly employee suffers from “a serious health condition that makes mention the FMLA as the source of his right to request such the employee unable to perform the functions of . . . [his] leave. Hammon, 165 F.3d at 451. Rather, the critical test for position,” among other qualifying reasons. 29 U.S.C. substantively-sufficient notice is whether the information that § 2612(a)(1)(D). The term “serious health condition” the employee conveyed to the employer was reasonably signifies “an illness, injury, impairment, or physical or mental adequate to apprise the employer of the employee’s request to condition that involves . . . (A) inpatient care in a hospital, take leave for a serious health condition that rendered him hospice, or residential medical care facility or (B) continuing unable to perform his job. Brohm, 149 F.3d at 523; Cavin v. treatment by a health care provider.” 29 U.S.C. § 2611(11); Honda of Am. Mfg., Inc., 346 F.3d 713, 725 (6th Cir. 2003) see 29 C.F.R. § 825.114 (defining “inpatient care in a (holding that the plaintiff, as a matter of law, had sufficiently hospital, hospice, or residential medical care facility” and notified his employer during his employment that his request “continuing treatment by a health care provider”). 29 C.F.R. for unforeseeable leave was for a FMLA-qualifying serious § 825.114(a)(2)(iii) provides that a “serious health condition health condition when he informed his employer that he had involving continuing treatment by a health care provider been at the hospital and was unable to work due to an injury includes . . . [a]ny period of incapacity or treatment for such from a motorcycle accident). incapacity due to a chronic serious health condition.” It further defines a “chronic serious health condition [a]s one The eligible employee must also give the employer this which: (A) Requires periodic visits for treatment by a health substantive notice within the requisite time frame. When the care provider . . . ; (B) Continues over an extended period of eligible employee’s leave for his serious health condition is time (including recurring episodes of a single underlying foreseeable based upon planned medical treatment, he must condition); and (C) May cause episodic rather than a “provide the employer with not less than 30 days’ notice, continuing period of incapacity (e.g., asthma, diabetes, before the date the leave is to begin.” See 29 U.S.C. epilepsy, etc.).” Id. (emphasis added). § 2612(e)(2)(B) (excluding a situation in which “the date of treatment requires leave to begin in less than 30 days” and To invoke the FMLA’s protection for this qualifying requiring the eligible employee, in such a situation, to reason, the eligible employee, during his employment, must “provide such notice as is practicable”). In contrast, when the request leave and give the employer notice that he is approximate time of the needed leave is unforeseeable, the requesting such leave for a serious health condition that eligible employee should give the employer notice of the need renders him unable to perform his position’s duties. See for the leave “as soon as practicable under the facts and Brohm, 149 F.3d at 523 (holding that, because the FMLA circumstances of the particular case.” 29 C.F.R. § 825.303(a). requires the eligible “employee . . . [to] provide notice and a “It is expected that an employee will give notice to the qualifying reason for requesting the leave,” the plaintiff’s employer within no more than one or two workings days of No. 02-3623 Brenneman v. MedCentral Health 13 14 Brenneman v. MedCentral Health No. 02-3623
learning of the need for leave, except in extraordinary February 9, 1999; and March 31, 2000–under its “no-fault” circumstances . . . [in which] such notice is not feasible.” Id. attendance policy and by subsequently terminating plaintiff pursuant to that policy. The district court granted summary Once an employer receives sufficient notice that the eligible judgment to defendant on plaintiff’s FMLA claim on the employee is requesting leave for a FMLA-qualifying reason, ground that plaintiff, as a matter of law, failed to give the employer bears the burden to gather any additional defendant sufficient notice of a FMLA-qualifying reason for information necessary for the leave to fall within the FMLA. these alleged diabetes-related absences.7 Hammon, 165 F.3d at 450. An employer may require the eligible employee to provide, in a timely manner, certification 1. March 31, 2000, Absence by a health care provider. 29 U.S.C. § 2613(a). Where the leave is due to a serious health condition of the employee that On appeal, plaintiff contends that the district court erred in prevents him from performing his job, the requested granting defendant summary judgment because plaintiff had certification is sufficient if it states the date upon which the timely and sufficiently notified defendant of his need for serious health condition began, the condition’s probable FMLA leave for his absence on Friday, March 31, 2000, the duration, the appropriate medical facts regarding the latest absence triggering his termination under defendant’s condition within the health care provider’s knowledge, and a statement that the employee is unable to perform his position’s duties. 29 U.S.C. § 2613(b). 7 Before the district court, defendant argued that any FMLA claim based upon plaintiff’s absences on February 16, 1996, and February 9, The FMLA renders it “unlawful for any employer to 1999, was time-barred because plaintiff had received susp ensions based interfere with, restrain, or deny the exercise of or the attempt upon these absences and that these material adverse actions fell outside of to exercise any right” that it affords. 29 U.S.C. § 2615(a)(1). the applicable statute-of-limitations period. See 29 U.S.C. § 2617(c)(1) Furthermore, any violation of the FMLA–or of the regulations and (2) (stating that an action may be brought under the FMLA “not later than 2 years after the d ate of the last event constituting the alleged implementing it–constitutes such unlawful interference. violation for which the action is brough t[,]” except that an actio n for a 29 C.F.R. § 825.220(b) (referencing an employer’s refusal to willful violation may be brought within 3 years after such time); Butler v. authorize FMLA leave as an illustration of unlawful Owens-Brockway Plastic Prod., 199 F.3d 314, 317 (6th Cir. 2000) interference). The FMLA also renders it “unlawful for any (holding that a plaintiff’s terminatio n claim was no t time-barred sim ply employer to discharge or in any other manner discriminate because it was based upon certain time-barred assessments of points for absences where the termination was the first material adverse action, and against any individual for opposing any practice made illustrating such a material adverse action with probation, termination, or unlawful” by the Act. For example, an employer may neither a failure to reinstate). Plaintiff countered that the “continuing violations” use an employee’s “taking of FMLA leave as a negative theory applies so as to toll the statute of limitatio ns here. See Dixon v. factor in [an] employment action[]” against that employee nor Anderson, 928 F.2d 2 12 (6th Cir. 1991). Defendant, in response, argued count an employee’s FMLA leave under its “no fault” that there is no precedential support for the proposition that the “continuing violations” theory applies to the FMLA, as it does to anti- attendance policies. 29 C.F.R. § 825.220(c). discrimination law. The district court did not exp ressly determine this statute-of-limitations issue when it held that plaintiff, as a matter of law, Plaintiff’s complaint alleges that defendant unlawfully had failed to give defendant sufficient notice that his absences on interfered with plaintiff’s exercise of his rights under the February 16, 1996 , and February 9, 1999, were FM LA-qualifying. In any FMLA by counting various absences that he alleges were event, defendant, by neither raising it nor presenting any argument on it FMLA-qualifying–absences on February 16, 1996; in its brief, has abandoned the statute-of-limitations argum ent on appeal. See Som mer v. Da vis, 317 F.3d 68 6, 691 (6th Cir. 2003). No. 02-3623 Brenneman v. MedCentral Health 15 16 Brenneman v. MedCentral Health No. 02-3623
attendance policy. On Friday, March 31st, plaintiff called him unable to perform his job.9 See Brohm, 149 F.3d at 523; defendant to inform it that he would not be at work. In 29 C.F.R. § 825.303(b) (noting that an employee’s particular, he stated that he “wasn’t doing well and . . . spokesperson, such as a spouse, may give the employer the wouldn’t be in today.” At that time, he did not mention that required notice if “the employee is unable to do so his absence was in any way related to his diabetic condition. personally”). However, plaintiff, as a matter of law, failed to Although plaintiff worked on Saturday and Sunday, April 1st give defendant notice, even if it were substantively sufficient, and 2nd, respectively, he made no further mention of the within the necessary time frame for unforeseeable leave.10 reason for his one-day absence. On April 4th, his next scheduled day of work, plaintiff met with supervisors Arkwright and George regarding his attendance deficiencies. During this meeting, however, plaintiff did not mention his 9 Plaintiff also argues that a genuine issue of material fact exists as to diabetes as the reason for his latest absence.8 Under whether he had given defendant sufficient notice when he called in on defendant’s attendance policy, this absence triggered both March 31st and simply stated that he “wa sn’t doing well and . . . wouldn’t plaintiff’s suspension and his termination because it was his be in today.” In support, plaintiff relies on Spangler v. Fed. Home Loan third attendance-related suspension within five years. On Bank of Des Moines, 278 F.3d 84 7 (8th Cir. 2002). In Spangler, the Eighth Circuit held that a genuine issue of material fact regarding notice April 5th, plaintiff’s wife informed Engle that plaintiff had existed because the defendant employer knew that the plaintiff suffered been absent on March 31st due to a hypoglycemic episode, from depression, that she had needed FM LA leave for depression in the and that she had attended to him all night due to that episode. past, and knew that her latest absence was from “depression again.” Id. On April 6, 2000, plaintiff requested and attended a meeting at 852-53. Here, plaintiff argues that defendant knew that plaintiff has with Engle. Plaintiff, for the first time, mentioned that his diabetes a nd that plaintiff had FMLA-qualifying, diabetes-related absences on February 16, 1996 , and February 9, 1999–absences for which March 31st absence was due to his diabetes. Specifically, plaintiff contends de fendant unlawfully penalized him. Unlike in plaintiff presented a note from Dr. Dorsey that stated that Spangler, however, plaintiff did not advise defendant that his March 31st “severe hypoglycemia due to diabetes” caused the absence absence was related to a serious health condition–here, diabetes. and that this absence was, thus, FMLA-qualifying. Mo reover, plaintiff’s bare statem ent that he was unwell would not have reaso nably apprised defendant that his absence was FMLA -qualifying, The information that plaintiff gave defendant–via his wife’s given plaintiff’s long history of diverse physical maladies, both work- related and non-work-related. Likewise, plaintiff’s assertion that he statement to Engle or Dr. Dorsey’s note–may have been would habitually state only that he was “ill” or “not feeling well” when sufficient to convey to defendant that plaintiff’s March 31st he was experiencing a diabetes-related illness is unpersuasive. T hus, even absence was due to a serious health condition that rendered if plaintiff’s assertions were true–that defendant knew of plaintiff’s diabetes and his past need for FMLA leave for diabetes-related absences–, they are insufficient to create a genuine issue o f material fact as to whether plaintiff’s “call-in” gave defendant sufficient notice that his March 3 1st absence was FML A-qualifying.
8 10 Plaintiff argues that he did not mention his diabetes during the Ap ril To the extent that defendant argue s that his notice was temporally 4th termination meeting because he was never asked why he had been sufficient because he met the time requirement for providing the absent on March 31st. However, this argument is not persuasive. Given employer–upon its reque st–of m edica l certification to supp ort a FMLA- that his supervisors were expressly terminating plaintiff based, in part, qualifying request for leave, such an argument is misplaced . See 29 upon this absence, a reasonable person in plaintiff’s position would have U.S.C. § 2613; 29 C.F.R. § 825.311(b). Rather, the issue is whether referenced the reason necessitating that absence in an attempt to avert the plaintiff provided defendant with sufficient notice that his request for termination. leave was for a FMLA-qualifying condition in the first instance. No. 02-3623 Brenneman v. MedCentral Health 17 18 Brenneman v. MedCentral Health No. 02-3623
First, plaintiff failed to give defendant notice “within no the physical effects of his hypoglycemic episode, he was more than one or two workings days of learning of the need physically unable to inform defendant that his March 31st for leave.” 29 C.F.R. § 825.303(a). Defendant did not absence was due to that diabetes-related illness. In support, receive notice from either plaintiff’s wife or Dr. Dorsey’s plaintiff relies upon Dr. Dorsey’s letter. In that letter, Dr. letter on or before April 2nd, the second working day after Dorsey stated that she believed that plaintiff had been unable plaintiff learned of the need for the March 31st absence. to explain or to recognize that he was suffering from “severe Plaintiff argues that, although he worked on April 1st and hypoglycemia due to diabetes” when he called in on March 2nd, he was not required to give notice on or before April 2nd 31st to report his absence because he had suffered from an because Saturday and Sunday, the 1st and 2nd of April extended period of hypoglycemia, which often causes respectively, are not normal working days for physicians. “prolonged physical symptoms, including headache, difficulty However, the applicable regulation imposes no qualification thinking and concentrating, and hypothermia.” However, that only the normal working days of physicians be counted plaintiff testified that he had “stabilized and everything was in determining the timeliness of an employee’s notice. See id. fine” by the time that he had returned to work on April 1st. To the extent that plaintiff is implying that he needed to see Thus, plaintiff was physically able to give defendant Dr. Dorsey to be able to give defendant the required sufficient notice on or before April 2nd, even if he were substantive notice, we fail to see how Dr. Dorsey possessed physically unable to do so on March 31st. any more information pertaining to whether plaintiff’s March 31st absence was due to a serious health condition rendering Plaintiff also argues that, even though defendant knew or him unable to work than what plaintiff himself possessed.11 had reason to know that he was a diabetic, defendant failed to While Dr. Dorsey may have informed plaintiff that the FMLA advise him that the FMLA could cover diabetes-related might cover the absence and provided medical certification to absences, even those involving only episodic incapacity. support any such claim, plaintiff need not have specifically Plaintiff testified that he would often report a diabetes-related mentioned the FMLA nor provided medical certification to absence by merely stating that he was “not doing well” and meet his initial burden of giving defendant the requisite without expressly mentioning his diabetes because defendant notice. See Hammon, 165 F.3d at 451; 29 U.S.C. § 2613; 29 had never informed him that the FMLA could cover such an C.F.R. § 825.311(b). absence. Plaintiff further testified that he did not think that mentioning the diabetes-related cause of the March 31st In addition, no extraordinary circumstances existed to absence would have made any difference because he had render it unfeasible for plaintiff to have given defendant the received attendance points for previous absences that he had necessary notice on or before April 2, 2000, the second advised defendant were diabetes-related. Thus, plaintiff working day following plaintiff’s March 31st absence. See 29 argues that, due to defendant’s alleged failure to inform C.F.R. § 825.303(a). Plaintiff seems to argue that, because of plaintiff that the FMLA covered diabetes and permitted intermittent leave for such a condition, plaintiff gave defendant the requisite notice “as soon as [was] practicable under the facts and circumstances.” For example, plaintiff 11 In fact, plaintiff testified that he neither spoke with nor saw Dr. testified that he attempted to get medical certification from Dorsey on M arch 3 1, 20 00, fo r his diab etic condition. Rather, plaintiff Dr. Dorsey for his March 31st absence only after he learned first saw Dr. Dorsey regarding his March 31st hypoglycemic episode on from his wife, on April 5th, that the FMLA could have April 5th, and Dr. Dorsey’s letter was based upon a reading of plaintiff’s blood glucometer from the day of the absence. covered his diabetes-related absences. According to No. 02-3623 Brenneman v. MedCentral Health 19 20 Brenneman v. MedCentral Health No. 02-3623
plaintiff’s wife, after she told Engle, on April 5th, that 2. Other Alleged Diabetes-Related Absences plaintiff’s March 31st absence was due to his diabetes, Engle informed her that plaintiff could have taken all of his The thrust of plaintiff’s FMLA claim, per his complaint, is diabetes-related absences under the FMLA. However, as the that defendant unlawfully interfered with the exercise of his record makes clear and as he acknowledged in his deposition, FMLA rights by counting various absences that he alleges to plaintiff, over the course of his employment, received several have been FMLA-qualifying under its “no-fault” attendance informational notices from defendant specifying that the policy and by subsequently terminating plaintiff pursuant to FMLA may cover diabetes as a chronic health condition, that policy. Plaintiff can point to only two instances in which whether for episodic or continuing incapacity. Plaintiff he received attendance points for absences that he allegedly, testified that he cannot recall ever reading any of these notices, that he might have read through one of them “real quickly,” and that, even if he had read one of them, he would not have noticed that it mentioned diabetes. Plaintiff underscored that no one ever “told” him about the FMLA’s coverage of diabetes. However, plaintiff’s lack of notice, if any, concerning the FMLA’s coverage of diabetes stems from his own willful ignorance, not from any culpability on issue of material fact over whether the plaintiff’s discharge “was delayed pending resolution of the grievance [process] under the CBA , and thus defendant’s part. The FMLA does not require defendant to whether the employer-employee relationship continued for purposes of foresee that plaintiff would not have read the many notices FMLA eligibility during the grievance process). Plaintiff also argues that that it had sent regarding the FMLA’s coverage and, thus, his termina tion was not yet final on April 4th beca use, accord ing to either to force plaintiff to read those notices or to convey their Hilbreth, she and Engle retained authority to halt the termination. content to him verbally. Contrary to plaintiff’s assertion, his Because we hold, however, that no reasonable jury could find that plaintiff was not required to give the requisite notice on or before Ap ril alleged lack of notice concerning the FMLA’s coverage of 2, 2000, and that plaintiff, in fact, gave the necessary no tice within this diabetes does not absolve him of his failure to advise time frame, any issues o f fact concerning any notice after April 4th are defendant that his March 31st absence was diabetes-related on imma terial. or before April 2, 2000. In sum, we find that plaintiff failed Second, we reject plaintiff’s argument that a genuine issue of material to give defendant the requisite notice that his March 31st fact exists as to whether plaintiff had accumulated eno ugh points to warrant termination. As of December 19, 1999, plaintiff had accumulated absence was FMLA-qualifying in a timely fashion.12 seven and one-third attendance p oints under the old attendance p olicy. According to the new attend ance policy, plaintiff’s seven and one- third points converted into two and one-third p oints. Plaintiff’s March 31, 12 2000, absence resulted in the accumula tion of another po int, raising his First, in so holding, we need not and do not express any opinion total points to three and one-third and triggering a suspension upon the upon whether plaintiff was an “eligible employee” for purposes of the accumulation of the third point. Plaintiff argues that a genuine issue of F M LA after his termination on April 4, 2000. Plaintiff contends that material fact exists as to how he received seven and one-third attendance genuine issues of material fact exist as to whether: 1) his discharge was points under the old attendance p olicy because George, during his delayed pending a grievance process, which ended in June of 2000; deposition, could count only five and one-third points–a number 2) whethe r his employm ent relationship continued for purposes of FMLA insufficient for entrance into the new point system–based up on a eligibility during that grievance; and 3) whether plaintiff gave sufficient spreadsheet that plaintiff gave him. However, as previously discussed, notice for his March 31, 2000, absence d uring his employment because plaintiff’s contention relies up on a m isconstruction of George’s relationship. See Biermann v. Aluminum Co. of Am., No. 3-98-CV-20159, testimony, plaintiff’s attempt to manufacture a genuine issue of material 2000 WL 33362002, at *8 (S.D. Iowa Jan. 21, 2000) (finding a genuine fact must fail. No. 02-3623 Brenneman v. MedCentral Health 21 22 Brenneman v. MedCentral Health No. 02-3623
expressly informed defendant were diabetes-related–his February 20th was from the “intestinal flu”; it made no absences on February 16, 1996, and February 9, 1999.13 mention of plaintiff’s diabetic condition.15 Plaintiff testified that Carol Blackstone (“Blackstone”), defendant’s Benefits As to the first instance, plaintiff testified that, on Manager, told plaintiff that he should try to have the FMLA February 16, 1996, he had informed one of the pharmacists cover the absence, and gave him an FMLA form for his that he was “running late” for work because his “[b]lood doctor to fill out.16 Plaintiff further testified that he followed sugar [was] acting up.” An Early Leave/Late arrival form Blackstone’s suggestion even though it confused him because documents this. He testified that, when he came into work on he did not know that the FMLA covered the flu. Plaintiff that day, he told an assistant manager that he was having later submitted an FMLA certification form, signed by Dr. problems with his blood sugar, and that he would have to see Roemer and dated February 22, 1996, that stated that a doctor.14 A “call-off” form documents that the reason for plaintiff’s absence was due to “gastroenteritis” and that he plaintiff’s absence was because his “[b]lood sugar was saw plaintiff on February 19, 1996. Defendant denied messed up.” Due to this illness, plaintiff missed work from plaintiff’s FMLA certification request on the ground that February 16, 1996, through February 20, 1996, with the plaintiff’s “gastroenteritis” did not constitute a “serious health exception of February 19, 2000, on which plaintiff was not condition” under the FMLA. scheduled to work. Plaintiff returned to work on February 21, 1996, the day of his next scheduled shift. After returning to Even if plaintiff had given defendant timely and sufficient work, plaintiff submitted a note from Dr. Roemer, his family notice that his February 16, 1996, absence was diabetes- practitioner, dated February 19, 1996, that stated that related and, thus, FMLA-qualifying, plaintiff, as a matter of plaintiff’s absence from February 16th through law, failed to give defendant, upon its request, medical certification that confirmed that this absence was, in fact, caused by plaintiff’s diabetes–the condition for which plaintiff would have given defendant the proper notice.17 See
15 Under defendant’s applicable attendance policy, plaintiff, by providing this doctor’s note, received only one attendance p oint for these absence s, which spanned four consecutive shifts. 13 Although plaintiff contends that he also improperly accumulated 16 points based upon certain absences d ue to workers’ com pensation injuries, Blackstone testified that, when she would learn that an employee we decline to consider this contention because plaintiff has presented no had been ill for three days and had received medical treatment for the flu, argument as to how these absences relate to and fall under the FMLA. she would always request medical certification in such a situation because See Som mer, 317 F.3d at 691. the employee could have mis-communicated or misunderstood his true illness. 14 Plaintiff also testified that he went to see Dr. R oem er on that day, 17 February 16th, and that he was sure that Dr. Roemer would have given W e reject plaintiff’s alternative theory that this absence was him a medical note for defendant. However, as discussed below, Dr. FM LA-qualifying because it involved incapacity for more than three Roemer’s note is dated February 19th, the date which the FMLA form calendar days and plaintiff received treatment from a healthcare provider. states that Dr. Roemer saw plaintiff. Moreover, a “call-off” sheet on See C.F.R. § 825.11 4(a)(2). As evidence, plaintiff points to Dr. Roemer’s February 19th–for his February 20th absence–states that plaintiff had note stating that plaintiff’s absence from February 16th through the 20th gone to a doctor on the 19th. was due to the intestinal flu and the FMLA certification form stating that No. 02-3623 Brenneman v. MedCentral Health 23 24 Brenneman v. MedCentral Health No. 02-3623
29 U.S.C. § 2613(b). In requesting such certification, than Dr. Dorsey, his diabetes specialist, because a lot of his defendant discharged its duty in seeking any additional illness had to do with the flu, and that the flu had been information necessary for the leave to fall within the FMLA. activating his diabetes, making it “go out of control at the See Hammon, 165 F.3d at 450. Because the medical time,” there is no evidence that plaintiff relayed this certification that plaintiff provided was insufficient on its information to defendant. The FMLA does not require an face, the FMLA’s provisions governing an employer’s request employer to be clairvoyant.18 for re-certification where it “has reason to doubt the validity of the certification” are inapposite. 29 U.S.C. § 2613(c) and Regarding the second instance, plaintiff testified that, on (d) (emphasis added). Here, rather than doubting the February 9, 1999, he had told one of his co-workers that he certification’s validity, defendant accepted the certification, was leaving work early due to a problem with his insulin including its representation that “gastroenteritis” caused pump. An Early Leave/Late Arrival form states that plaintiff’s February 16th absence. While plaintiff testified plaintiff’s early leave was due to a “problem with his insulin that he went to see Dr. Roemer, his family practitioner, rather pump.” Plaintiff neither saw a doctor nor provided a medical confirmation of this problem from a doctor. Plaintiff testified that, before work on February 9, 1999, his blood sugar was 361 and he was not feeling well. Plaintiff further testified that, Dr. Roemer had seen plaintiff in his office on February 19, 1996. Thus, although he gave himself a dose of insulin via his pump, his plaintiff’s argum ent imp licitly rests on the theo ry that the intestinal flu was a FM LA-q ualifying serious health condition. To the extent that blood sugar spiked to 500 at work and he “was feeling really plaintiff has preserved this argument for appeal, it must, nevertheless, fail. bad.” According to plaintiff, he called Dr. Dorsey from work and she advised him to go home, disconnect the insulin pump, To constitute a “serious health condition,” the condition must inject a dose of insulin with a needle to decrease his blood involve–along with at least a three-day period of incapacity–treatment for sugar, and then reinsert the insulin pump. Plaintiff testified that condition by a health care provider either two or more times or at least once as long as it results in a regimen of continuing treatment under that, while at home, it took approximately three to four hours that provider’s supervision. 29 C.F.R. § 825 .114(a)(2)(i)(A) and (B). before his blood sugar normalized. According to plaintiff, Because plaintiff’s February 19th visit to Dr. Roemer upo n which he this hyperglycemic episode occurred because the insulin relies constituted only o ne instance of treatment, plaintiff must also pump had become disconnected from his body, and he did not dem onstrate that this visit involved a regimen of continuing treatment have to see a doctor because he fixed the problem with the under Dr. Roemer’s supervision. While plaintiff testified that Dr. Roemer pump. had presc ribed him medica tion for the intestinal flu, the very FMLA certification document that plaintiff points to as evidence states that the treatment regimen involved only leave from work, rest, and fluids. Yet, As stated above, the critical test for substantively-sufficient as 29 C.F.R. § 825 .114(b) makes clear, “bed -rest, drinking fluids, . . . and notice is whether the information that the employee conveyed other similar activities that can be initiated without a visit to a health care to the employer was reasonably adequate to apprise the provider . . . [are] [in]su fficient [by the mselves] to constitute a regimen employer of the employee’s request to take leave for a serious of continuing treatment.” In addition, 29 C.F.R. § 825.114(c) states that, absent arising com plicatio ns, the flu is generally not a FMLA -qualifying “serious health cond ition.” W hile one cou ld argue that plaintiff’s diabetes was a condition comp licating his flu, p laintiff testified that the only 18 treatment that he received for that abse nce was from Dr. R oem er, who W e note that the “call-off” sheets for February 17th and 20th of only treated him for the flu. Thus, such a dual-condition theory w ould fail 1996, which report that plaintiff was “feeling out of sorts” and “ill,” for lack of the requisite medical treatment “relating to that same respe ctively, further demonstrate the expanse of generalized information condition.” 29 C .F.R. § 825 .114 (a)(2)(i). that defendant had concerning the reason for plaintiff’s absence. No. 02-3623 Brenneman v. MedCentral Health 25 26 Brenneman v. MedCentral Health No. 02-3623
health condition that rendered him unable to perform his job. merely told defendant that he was having a problem with his Brohm, 149 F.3d at 523; Cavin, 346 F.3d at 725 (holding that insulin pump. This statement, as a matter of law, could not the plaintiff, as a matter of law, had sufficiently notified his have reasonably apprised defendant that plaintiff’s employer during his employment that his request for February 9, 1999, absence was due to a “serious health unforeseeable leave was for a FMLA-qualifying serious condition,” as described above. It is insufficient to give rise health condition when he informed his employer that he had to an inference that plaintiff was suffering from any physical been at the hospital and was unable to work due to an injury impairment or illness or experiencing any period of from a motorcycle accident). Here, the only way that incapacity. For all defendant knew, the “problem” with the plaintiff’s problem with his insulin pump could constitute the insulin pump simply might have been of a mechanical or requisite “serious health condition” is if it were “an illness, minor nature that would not have effected the pump’s injury, impairment, or physical or mental condition that effectiveness or plaintiff’s health. Perhaps, for example, the involves . . . [a]ny period of incapacity . . . due to a chronic pump’s battery was running low and simply needed to be serious health condition.” 29 C.F.R. § 825.114(a)(2)(iii) changed. Similarly, plaintiff’s mere statement that he was (defining “a chronic serious health condition” as one that experiencing a problem with his insulin pump did not “(A) Requires periodic visits for treatment by a health care reasonably apprise defendant of a condition that rendered him provider . . . ; (B) Continues over an extended period of time unable to perform his duties. We find that plaintiff, as a . . . ; and (C) May cause episodic rather than a continuing matter of law, failed to give defendant sufficient notice that period of incapacity (e.g., . . . diabetes . . . )”) (emphasis his February 9, 1999, absence was FMLA-qualifying. added). We assume arguendo that defendant had sufficient notice that plaintiff suffered from diabetes as a chronic health C. Plaintiff’s Motion for Partial Summary Judgment condition, and that defendant knew that plaintiff’s diabetic condition caused him to use an insulin pump. While plaintiff Plaintiff contends that the district court abused its testified at length about the physical effects that he discretion by failing to rule on plaintiff’s motion for leave to experienced due to the insulin pump becoming disconnected file a motion for partial summary judgment on plaintiff’s from his body, plaintiff does not claim that he relayed this FMLA claim, which plaintiff had filed on October 30, 2001, information to defendant.19 Rather, according to plaintiff, he before it granted defendant’s motion for summary judgment, which defendant had previously filed on September 21, 2001. During a pre-trial conference, the district court ruled that it 19 In fact, the only evidence in the record that suggests tha t plaintiff would hold plaintiff’s motion in abeyance pending resolution might have relayed this information to defendant is a sworn letter, dated of defendant’s motion for summary judgment. According to May 24, 2000, by Pau l Nunamaker (“N unam aker” ), the pharma cist to defendant, plaintiff never objected to this ruling before the whom plaintiff reported his February 9, 1999, absence. In that letter, district court. On May 2, 2002, the district court granted Nunamaker stated that he knew that plaintiff was having “problems with defendant’s motion for summary judgment on all of plaintiff’s his blood sugar.” However, Nunamaker also stated that he excused plaintiff from work because he believed that plaintiff “was a good judge of how serious the problem truly was.” Even construing this letter in the light most favorable to plaintiff, plaintiff did not reasonably app rise for all Nunamaker or d efendant knew, the problem with the insulin pump defendant that the problem with his blood sugar incapacitated him or may simply have caused plaintiff to experience a minor fluctuation of his rendered him unable to perform his duties. As N unam aker stated, he did blood sugar, p rompting p laintiff, out of an abundance of caution, to want not know “how serious the problem truly was,” but, rather, relied on to try to repair his insulin pump to avert any potential, substantial plaintiff to determine w hether it warranted him leaving work early. Thus, fluctuations of his blood sugar. No. 02-3623 Brenneman v. MedCentral Health 27
claims. Having already disposed of the entire case on its merits, the district court never expressly ruled upon plaintiff’s motion for leave to file a partial summary judgment motion. The district court did not err in adjudicating defendant’s motion for summary judgment before plaintiff’s motion for partial summary judgment. See Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986) (recognizing the discretion of “the trial judge who is charged with the responsibility . . . [of] managing his docket and [e]nsuring an expeditious processing of the litigation”). This management of the motions was clearly reasonable given that defendant’s motion was filed before plaintiff’s motion and, importantly, that the resolution of defendant’s motion could have disposed of the entire case–as it, in fact, did–while the resolution of plaintiff’s motion would have disposed of only plaintiff’s FMLA claim. Moreover, in granting defendant’s motion for summary judgment, the district court expressly found that all of plaintiff’s claims failed as a matter of law. Thus, the district court implicitly found that plaintiff’s FMLA claim could not succeed as a matter of law, such as to warrant an award of partial summary judgment to plaintiff on this claim. For the preceding reasons, we AFFIRM the district court’s grant of summary judgment to defendant on plaintiff’s federal and state claims alleging disability discrimination and his federal claim alleging a FMLA violation.