Lee Brenneman v. Medcentral Health System

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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
1Plaintiff also alleged state-law claims of prom issory esto ppe l,
intentional infliction of emotional distress, and wrongful discharge
contrary to pub lic polic y, on which the district court, in a single order,
also awarded defendant summ ary judgment. W hile plaintiff, per his
notice of appeal, purports to appe al 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
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).
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

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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 attendance-
4 Brenneman v. MedCentral Health No. 02-3623
2Defendant 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 ha d not, in fact, spent the entire day
in bed. Plaintiff told Engle that he had simply fo rgotten about the
app ointment. 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. De fendant concedes, how ever, tha t this
apparent misrepresentation by plaintiff was not a factor in its decision to
terminate plaintiff; rather, acco rding 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 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,
361-62 (1995) (explaining that, when an employer discovers an
emp loyee’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

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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 non-
moving 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.

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No. 02-3623 Brenneman v. MedCentral Health 7
3As 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
claim on any alleged refusal by defend ant to accommodate plaintiff by
granting him leave for his diabetes because plaintiff had never requested
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 demonstrate that defendant’s
proffered legitimate reasons for plaintiff’s termination were a pretext for
disab ility discrimination.
4Although plaintiff argues that he should have received medical leave
for certain other diabetes-related absences, absences for which he simp ly
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 federal disability 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 diabetes-
related 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 accom mod ation for his diabetes.
W hile plaintiff claimed that he would often relay this explanation when
he was experiencing diabetes-related illnesses, this statement would not
have reasonably apprised d efendant that the absences were related to a
disab ility rather than some general illness. See Gantt v. Wilson Sporting
Goods Co., 143 F.3d 1042, 10 46-47 (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

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No. 02-3623 Brenneman v. MedCentral Health 9
5Plaintiff 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 Manage r, testified that each department, including the
Pharmacy Departm ent, 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. P laintiff does not dispute this evidence. Rather, plaintiff
seems to argue that his accumulation of seven and one-third points so as
to enter the attend ance 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 argume nt on the alleged disparate
application of the P harmacy D epartment’s attendance guidelines, we
decline to co nsider 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
6In 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
disab ility 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 further testified 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

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No. 02-3623 Brenneman v. MedCentral Health 11
court properly granted defendant summary judgment on
plaintiff’s disability discrimination 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

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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 that the 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
7Before 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 susp ensions 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 d ate 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 terminatio n claim was no t time-barred sim ply
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 2 12 (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 anti-
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,
had failed to give defendant sufficient notice that his absences on
February 16, 1996 , and February 9, 1999, were FM LA-qualifying. In any
event, defendant, by neither raising it nor presenting any argument on it
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).
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

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No. 02-3623 Brenneman v. MedCentral Health 15
8Plaintiff argues that he did not mention his diabetes during the Ap ril
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
9Plaintiff 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 “wa sn’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 84 7 (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 FM LA 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 de fendant 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.
Mo reover, plaintiff’s bare statem ent that he was unwell would not have
reaso nably apprised defendant that his absence was FMLA-qualifying,
given plaintiff’s long history of diverse physical maladies, both work-
related 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. T hus, 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 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.
10To the extent that defendant argue s that his notice was temporally
sufficient because he met the time requirement for providing the
employer–upon its request–of m edica l certification to support a FMLA-
qualifying 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

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No. 02-3623 Brenneman v. MedCentral Health 17
11In fact, plaintiff testified that he neither spoke with nor saw Dr.
Dorsey on M arch 3 1, 20 00, for his diab etic 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

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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) whethe r his employm ent relationship continued for purposes of FMLA
eligibility during that grievance; and 3) whether plaintiff gave sufficient
notice for his March 31, 2000, absence d uring 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 beca use, accord ing 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 Ap ril
2, 2000, and that plaintiff, in fact, gave the necessary notice within this
time frame, any issues o f 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 eno ugh points to
warrant termination. As of December 19, 1999, plaintiff had accumulated
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,
2000, absence resulted in the accumulation of another po int, 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 p olicy because George, during his
deposition, could count only five and one-third points–a number
insufficient for entrance into the new point system–based up on a
spreadsheet that plaintiff gave him. However, as previously discussed,
because plaintiff’s contention relies upon a m isconstruction 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,

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No. 02-3623 Brenneman v. MedCentral Health 21
13Although plaintiff contends that he also improperly accumulated
points based upon certain absences d ue to workers’ com pensation 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 Som mer, 317 F.3d at 691.
14Plaintiff also testified that he went to see Dr. R oem er 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 p oint 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.
17W e reject plaintiff’s alternative theory that this absence was
FM LA-qualifying because it involved incapacity for more than three
calendar days and plaintiff received treatment from a healthcare provider.
See C.F.R. § 825.11 4(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 diabetes-
related 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

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No. 02-3623 Brenneman v. MedCentral Health 23
Dr. Roemer had seen plaintiff in his office on February 19, 1996. Thus,
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
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 upo n which he
relies constituted only o ne instance of treatment, plaintiff must also
dem onstrate that this visit involved a regimen of continuing treatment
under Dr. Roemer’s supervision. While plaintiff testified that Dr. Roemer
had prescribed 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 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 the mselves] 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.” W hile one could argue that plaintiff’s diabetes
was a condition comp licating his flu, plaintiff testified that the only
treatment that he received for that abse nce was from Dr. R oem er, who
only treated him for the flu. Thus, such a dual-condition theory w ould 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’s provisions 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
18W e note that the “call-off” sheets for February 17th and 20th of
1996, which report that plaintiff was “feeling out of sorts” and “ill,”
respe ctively, 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

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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 (“N unam aker”), 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 app rise
defendant that the problem with his blood sugar incapacitated him or
rendered him unable to perform his duties. As N unam aker 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 d efendant knew, the problem with the insulin pump
may simply have caused plaintiff to experience a minor fluctuation of his
blood sugar, p rompting 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

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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.

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