Philip R. Plant v. Morton International, Inc.

*The Honorable John G. Heyburn II, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0165P (6th Cir.)
File Name: 00a0165p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
P HILIP R. P LANT ,
Plaintiff-Appellant,
v.
M ORTON INTERNATIONAL,
INC.,
Defendant-Appellee.
;>

1
No. 99-3445
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 97-03234—Donald C. Nugent, District Judge.
Argued: February 4, 2000
Decided and Filed: May 12, 2000
Before: MERRITT and MOORE, Circuit Judges;
HEYBURN,* District Judge.

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2 Plant v. Morton Int’l, Inc. No. 99-3445
_________________
COUNSEL
ARGUED: Charles A. Kennedy, KENNEDY,
CICCONETTI & KNOWLTON, Wooster, Ohio, for
Appellant. Timothy L. Zix, BATTLE & MILLER, Cleveland,
Ohio, for Appellee. ON BRIEF: Charles A. Kennedy,
KENNEDY, CICCONETTI & KNOWLTON, Wooster, Ohio,
for Appellant. Timothy L. Zix, Colleen P. Battle, BATTLE
& MILLER, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Philip Plant
appeals the district court’s grant of summary judgment to his
former employer Morton International, Inc. (“Morton”) on his
Family and Medical Leave Act (FMLA), Americans with
Disabilities Act (ADA), and state-law discrimination and
wrongful termination claims. The district court found that,
because Plant could not have returned to work within the
twelve weeks allotted by the FMLA, he could not make out a
successful claim under that statute. Concluding that Morton
failed to give sufficient notice to Plant that his FMLA leave
time had begun to run, we disagree with the district court and
hold that Plant might have been entitled to an additional
twelve weeks of leave under the FMLA. However, we agree
with the district court that Plant has come forward with
insufficient evidence to allow a reasonable jury to conclude
that he was disabled within the meaning of the relevant
statutes during the time period in question, and therefore that
Morton was entitled to summary judgment on the ADA and
state-law claims. For these reasons, we AFFIRM in part and
REVERSE in part the judgment of the district court, and we
REMAND for further proceedings.

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No. 99-3445 Plant v. Morton Int’l, Inc. 3
I. BACKGROUND
Plaintiff-appellant Philip R. Plant began working for
defendant-appellee Morton International, Inc. as an applied
color systems operator in the Orrville, Ohio plant in 1989. He
was an hourly employee whose duties mainly involved
generating paint color matches. In February of 1995, Plant
was promoted to the position of intermix coordinator, which
was a salaried position involving additional responsibilities
such as research and development and customer service,
including travel to remote customer sites. That same month,
Plant was involved in a motor vehicle accident while working
at a site in North Carolina. Plant was taken to a local
hospital, diagnosed with contusions and strain, and released
the same day. His diagnosis has never changed.
Plant followed up with treatment from Dr. Owen W. Logee,
M.D., of Wooster, Ohio. Except for being called in to work
sporadically when he was especially needed, Plant was absent
from work until September of 1995, when Dr. Logee released
him to return with the restriction that he should work only
four-hour days and avoid lifting more than fifteen pounds and
bending or stooping repeatedly. Plant was eventually released
to work six-hour days and then eight-hour days. During his
entire absence from work, Plant continued to receive his full
salary.
To accommodate Plant’s medical condition, Morton
assigned him to data entry duties upon his return. Plant
claimed that he was no longer able to drive to customer sites,
as he had previously done as intermix coordinator, due to the
pain medication he had to take; he did, however, maintain
some phone contact with customers. Furthermore, Plant
could not fully perform the duties of his previous position as
intermix coordinator without working eight-hour days.
Eventually, Plant began to find that his back condition was
aggravated by sitting for long periods at his data entry job.
Shortly thereafter, Plant was switched to the position of lab
technician, which required mostly standing, with the
possibility of sitting to take breaks. The job also required

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4 Plant v. Morton Int’l, Inc. No. 99-3445
some bending, walking, occasional light lifting and stair
climbing. Plant does not claim that these duties were outside
his work restrictions, but he states that he was made to feel
uncomfortable when taking breaks or asking for help from his
co-workers, which he occasionally needed to do. For
example, he asserts that he was constantly “scrutinized” while
taking breaks and that one of the supervisors, Dave Black,
told Plant that the president of Morton did not want him
sitting down so much or taking his breaks in the front office.
Plant also states that, although he was told he could ask his
co-workers to help him with carrying paint samples, they
sometimes failed to comply with his requests, and he was
consequently told to carry them himself if he could. Finally,
Plant notes one incident in which Dave Black allegedly
expressed the opinion that Plant was “milking the system.”
J.A. at 395 (Plant Dep.). Black denies ever making such a
comment.
On April 26, 1996, Plant aggravated his back and leg
injuries while carrying paint samples up a flight of stairs at
work. At Dr. Logee’s direction, Plant took another leave of
absence from work. As in the past, Plant did not fill out any
forms or follow any other special procedures to request that
leave of absence, and he continued to receive his full salary.
On June 7, 1996, while still on a leave of absence for his
medical problems, Plant was terminated. He claims that he
was told that the reason for his termination was that Morton
needed someone who could be present more than he could.
He claims that he was never told of any problems concerning
his performance at that meeting and only learned of his
alleged poor performance when he attempted to apply for
unemployment benefits.
Morton, by contrast, claims that Plant was terminated for no
other reason than his poor performance and that he was never
told otherwise. In particular, Morton points to Plant’s alleged
inappropriate behavior with some employees of a customer,
Springs Window Fashions (“Springs”). David Mead, an
account manager/sales representative from Morton, described
one incident in which Plant engaged in a heated discussion
No. 99-3445 Plant v. Morton Int’l, Inc. 17
310 syllabus para. 3. However, the court emphasized that its
reasons for so holding depended on its understanding of the
legislature’s intent in enacting the whistleblower statute; the
court did not claim to generalize to other public policies or
other statutes. See id. at 322-23. Generally, in order to
succeed on a wrongful discharge claim, the plaintiff must
show only that a “clear public policy existed and was
manifested in a state or federal constitution, statute or
administrative regulation, or in the common law”; that
“dismissing employees under circumstances like those
involved in the plaintiff’s dismissal would jeopardize the
public policy”; that “[t]he plaintiff’s dismissal was motivated
by conduct related to the public policy”; and that “[t]he
employer lacked overriding legitimate business justification
for the dismissal.” Id. at 321 (quoting Painter v. Graley, 639
N.E.2d 51, 57 n.8 (Ohio 1994)).
Nonetheless, the district court reached the correct
conclusion with respect to Plant’s wrongful discharge claim.
As we have noted, Plant has not come forward with sufficient
evidence to show that he qualifies as disabled within the
meaning of § 4112.02 or the ADA. Although Plant is not
required to prove all the elements of an ADA claim or a
§ 4112.02 claim in order to succeed on a claim for wrongful
discharge in violation of public policy, we believe that unless
Plant can show that he is a member of the class of people who
are the intended beneficiaries of those statutes, he cannot
show that “dismissing employees under circumstances like
those involved in [Plant’s] dismissal would jeopardize the
public policy” embodied in those statutes. Therefore, we
affirm the district court’s grant of summary judgment to
Morton on the wrongful discharge claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part and
REVERSE in part the district court’s grant of summary
judgment to Morton, and we REMAND for further
proceedings consistent with this opinion.

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16 Plant v. Morton Int’l, Inc. No. 99-3445
appropriate to look to federal law when interpreting analogous
law under R.C. Chapter 4412.”). But cf. Wooten v. City of
Columbus, 632 N.E.2d 605, 611 (Ohio Ct. App. 1993)
(stating that the Ohio handicap discrimination law is “at least
as broad, if not broader, in scope than” the ADA (emphasis
added)). Furthermore, the parties have pointed to no
differences between Ohio case law and federal case law that
would be relevant to this case. Therefore, we hold that Plant
is not handicapped within the meaning of Ohio Revised Code
§ 4112 for the same reasons that we held him not to be
disabled within the meaning of the ADA. See also Maloney
v. Barberton Citizens Hosp., 672 N.E.2d 223, 225 (Ohio Ct.
App. 1996) (stating that the plaintiff’s “transitory” back
injury, “which caused her pain and inconvenience for a
definite period of time, but which had no adverse residual
effects,” does not constitute a “handicap” under § 4112).
E. The Wrongful Discharge Claim
Finally, Plant argues that Morton’s actions constitute
wrongful discharge in violation of public policy under Ohio
law. See Greeley v. Miami Valley Maintenance Contractors,
Inc., 551 N.E.2d 981, 981-82 syllabus para. 2 (Ohio 1990).
This claim is apparently dependent upon Plant’s § 4112.02
claim, since he points to § 4112.02 as embodying the public
policy that was violated by his discharge. The district court
found that in order to succeed on a claim for wrongful
discharge in violation of the policy embodied in § 4112.02,
Plant must be able to meet the requirements for showing a
violation of § 4112.02.
We do not believe that Plant was required to show all the
elements of a violation of § 4112.02 in order to succeed on a
claim for wrongful termination in violation of public policy.
In Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio),
cert. denied, 522 U.S. 1008 (1997), the Supreme Court of
Ohio held that the plaintiff’s claim for wrongful discharge in
violation of the state whistleblower statute would succeed
only so long as he could show that he had fully complied with
the requirements of the whistleblower statute itself, see id. at
No. 99-3445 Plant v. Morton Int’l, Inc. 5
with an employee on the floor of the Springs factory.
According to Mead’s affidavit, Plant later explained “that he
had a friendly relationship with the employee’s sister, but that
she believed he was leading her sister on because he was
married.” J.A. at 82 (Mead Aff.). Mead states that Plant then
asked him to drive to a local department store, where they met
the sister of the Springs employee. Plant admits to these
events, which occurred in March of 1995, while Plant was
still on a leave of absence but sporadically working, but he
claims that the encounter at the department store was
coincidental. Mead also reports having received complaints
about Plant from Lloyd Nugent, the quality control manager
at Springs, both about Plant’s socializing with Springs
employees and about his technical capabilities. Subsequently,
in May of 1996, Nugent complained again to Mead, telling
him that Plant was calling Springs employees during business
hours and suggesting that Morton’s relationship with Springs
was jeopardized by this behavior. Plant was terminated
several days after this last complaint. Plant denies that he
called any Springs employees during business hours and
asserts that, although Mead had briefly advised him not to
mix his personal life with his business, he was unaware of any
problems that Springs had with him. Black admitted that he
did not recall having a meeting with Plant about that incident
and that he was unaware of anyone within the company
having a conversation with Plant about it.
Morton also points to two negative performance appraisals
of Plant written by Plant’s immediate supervisor, Bill Jones.
Although those reviews are not dated, an affidavit by Human
Resources Representative Eileen Christiansen, as well as
Black’s testimony, suggests that they were completed in 1996.
One review described Plant as “Below Expectations” overall
and the other as “Unacceptable.” J.A. at 102, 105
(Performance Appraisals). Both were accompanied by
summaries signed by Bill Jones referring to Plant’s “lack of
knowledge in colorant data base systems” and his
“inappropriate behavior,” among other things, and
recommending his termination. J.A. at 104, 107. Black
admitted that he believed that the performance reviews were

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6 Plant v. Morton Int’l, Inc. No. 99-3445
never shared with Plant, however. Jones also wrote a letter to
the Human Resources department immediately after the
second Springs incident, which described Plant’s poor
performance in very similar terms. However, Jones, who was
later terminated as well, wrote a letter subsequent to his
termination, stating that he impugned Plant’s performance
largely under pressure from his superiors and out of fear for
his own employment. Finally, Morton points to memoranda
written by Black in the fall of 1995 describing several
problems with Plant’s behavior, such as being absent from
work without notifying anyone and personal use of the
company phones and fax machines.
After receiving a “Right to Sue” notice from the Ohio Civil
Rights Commission and the EEOC, Plant filed suit against
Morton in state court, alleging discrimination in employment
on the basis of his disability in violation of the FMLA, 29
U.S.C. § 2601 et seq., the ADA, 42 U.S.C. § 12101 et seq.,
Ohio Revised Code § 4112.02, and the state wrongful
discharge laws. Morton removed the case to the federal
district court for the Northern District of Ohio. Morton
moved for summary judgment, which was granted as to all of
Plant’s claims. This timely appeal followed.
II. ANALYSIS
A. Summary Judgment Standard
This court reviews a district court’s grant of summary
judgment de novo. See EEOC v. Northwest Airlines, Inc.,
188 F.3d 695, 701 (6th Cir. 1999). Summary judgment
should be granted only if there is no genuine issue of material
fact and the moving party is entitled to a judgment as a matter
of law. See FED . R. C IV . P. 56(c); Johnson v. United States
Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving
party bears the initial burden of showing the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to come forward with evidence showing that
there is a genuine issue for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). There is no genuine
No. 99-3445 Plant v. Morton Int’l, Inc. 15
3Section 4112.02 provides:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex,
national origin, handicap, age, or ancestry of any person, to
discharge without just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.
O HIO REV. CODE § 4112.02.
of Plant’s medical restrictions and modified Plant’s
responsibilities based on them.
Because we hold that Plant was not disabled within the
meaning of the ADA and affirm the district court on this
basis, we do not reach the questions whether Plant was
“otherwise qualified” for the position of intermix coordinator
and whether Morton has put forth a legitimate, non-pretextual
reason for terminating Plant.
D. The Ohio Revised Code § 4112.02 Claim
In order to establish unlawful discrimination on the basis of
disability in violation of Ohio Revised Code § 4112.02(A),3
Plant must show 1) that he is handicapped; 2) that Morton
took adverse action against him because of his handicap; and
3) that he is capable of performing the essential functions of
the job in question. See Hazlett v. Martin Chevrolet, Inc., 496
N.E.2d 478, 480 (Ohio 1986). The district court granted
summary judgment for Morton on Plant’s § 4112.02 claim,
finding that it could apply the same analysis to that state law
claim as it had applied to the ADA claim.
Ohio case law appears to support the district court’s
decision. See, e.g., City of Columbus Civil Serv. Comm’n v.
McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998) (noting that
the ADA is similar to the Ohio handicap discrimination law
and looking to federal law in order to determine whether
nearsightedness is a disability under § 4112); Greater
Cleveland Reg’l Transit Auth. v. Ohio Civil Rights Comm’n,
567 N.E.2d 1325, 1328 (Ohio Ct. App. 1989) (“It is

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14 Plant v. Morton Int’l, Inc. No. 99-3445
his termination on June 6, 1996. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)
(stating that a court may consider the plausibility of a moving
party’s evidence in determining whether that party has met its
burden for summary judgment); Penny v. United Parcel Serv.,
128 F.3d 408, 416 (6th Cir. 1997). Furthermore, temporary
physical conditions like Plant’s do not generally constitute
substantial impairments. See Interpretive Guidance, 29
C.F.R. §1630.2(j) App.; Roush v. Weastec, Inc., 96 F.3d 840,
844 (6th Cir. 1996). Although the evidence did not clearly
indicate that Plant’s condition was temporary, Plant was
unable to come forward with any evidence that it was
permanent, and the mere possibility of recurrence is not
sufficient to establish substantial impairment. See Roush, 96
F.3d at 844. For these reasons, we hold that Plant has failed
to produce sufficient evidence from which a reasonable jury
could conclude that he was disabled within the meaning of the
ADA during the time in question.
Furthermore, we reject Plant’s contention that he was
“regarded as” disabled within the meaning of 42 U.S.C.
§ 12102(2). Plant has come forward with no evidence to
show that he fits within this definition of disabled, other than
to suggest that because Morton made accommodations for
Plant’s medical restrictions, it viewed him as disabled. This
is clearly not the kind of situation to which the statutory
provision for those who are “regarded as” disabled was
intended to refer. Rather, the EEOC regulations explain that
this definition of disability applies when the employee has an
impairment that is not substantially limiting but is treated as
substantially limiting, or when the impairment is limiting only
because of others’ attitudes, or when the employee has no
impairment at all but is viewed as having a substantially
limiting impairment by the employer. See 29 C.F.R.
§ 1630.2(l). The intent behind this provision, according to the
EEOC, is to reach those cases in which “myths, fears and
stereotypes” affect the employer’s treatment of an individual.
29 C.F.R. § 1630.2(l) App. Plant cannot show that this
provision applies to him merely by pointing to that portion of
the record in which his supervisor admitted that he was aware
No. 99-3445 Plant v. Morton Int’l, Inc. 7
issue for trial unless the nonmoving party has produced
enough evidence for a jury to be able to return a verdict for
that party. See id. at 249. “The evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255.
B. The FMLA Claim
The FMLA provides that an eligible employee is entitled to
twelve weeks of leave from work for a “serious health
condition” that renders the employee incapable of fulfilling
that employee’s job responsibilities. 29 U.S.C.
§ 2612(a)(1)(D). An employer who interferes with an
employee’s rights under the FMLA may be held liable in a
civil suit. See 29 U.S.C. § 2617; Miller v. Defiance Metal
Prods., Inc., 989 F. Supp. 945, 946 (N.D. Ohio 1997).
Plant argues that Morton interfered with his rights under the
FMLA. He claims that after his April 26, 1996 injury, he
qualified as having a serious health condition that prevented
him from performing the essential functions of his position.
Therefore, he argues, he was entitled to twelve weeks’ leave
under the FMLA, but he was terminated after only about six
weeks. Furthermore, although Plant admits that he would not
have been able to return to work within twelve weeks in any
case, he argues that he should have been allowed to “stack”
the FMLA leave on top of his employer-provided temporary
disability leave. In any case, he adds, his FMLA leave
allotment would not start to run until Morton notified him that
it was designating his leave as FMLA leave, which it never
did. See 29 C.F.R. § 825.208(c) (1998).
Relying on Sixth Circuit precedent, the district court
rejected Plant’s arguments. In Cehrs v. Northeast Ohio
Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998),
this court held that the plaintiff could not show a violation of
her rights under the FMLA, even if her employer had
terminated her before she had used her entire twelve-week
allotment of leave, because she was undisputably unable to
return to work within twelve weeks in any case. See id. at
784-85. Because Plant similarly would not have been able to

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8 Plant v. Morton Int’l, Inc. No. 99-3445
return to work until August 5, 1996, the district court found
that Cehrs was directly on point and Plant could not show a
violation of the FMLA.
We hold that Cehrs is not applicable to this case. Although
the Cehrs court appeared squarely to hold that an employee
who cannot return to work within twelve weeks has no
remedy under the FMLA, it did not specifically consider the
problem presented in this case — that of notice by the
employer that the employee’s leave is being counted against
his FMLA allotment. Because there is a Department of Labor
regulation, 29 C.F.R. § 825.208(c), that specifically discusses
the requirement of notice by employers, and because we
believe that regulation to be valid, we hold that § 825.208(c),
rather than Cehrs, governs the case sub judice.
The FMLA makes it clear that employer-provided leave,
whether paid or unpaid, may be counted toward the twelve-
week minimum required by the statute. See 29 U.S.C.
§ 2612(c)-(d). The Department of Labor’s regulations
implementing the FMLA, which became final on April 6,
1995, see Bauer v. Varity Dayton-Walther Corp., 118 F.3d
1109, 1111 n.1 (6th Cir. 1997), elaborate on the
circumstances and conditions under which this may be done.
In particular, 29 C.F.R. § 825.208(a) emphasizes that “[i]n all
circumstances, it is the employer’s responsibility to designate
leave, paid or unpaid, as FMLA-qualifying, and to give notice
of the designation to the employee.” 29 C.F.R. § 825.208(a).
Furthermore, the regulations provide that an employer
wishing to count paid leave against the twelve-week
minimum must so inform the employee within two days of
learning of the employee’s FMLA-qualifying reason for
requesting leave. See id. § 825.208(b). If the employer fails
to give notice to the employee within this period of time, the
employer may not designate the leave as FMLA leave
retrospectively; only that portion of the leave following
notification by the employer may be designated as FMLA
leave and counted against the twelve-week entitlement. See
id. § 825.208(c).
No. 99-3445 Plant v. Morton Int’l, Inc. 13
evidence to raise an issue of fact as to whether Morton’s
nondiscriminatory explanation for Plant’s termination was
pretextual.
We hold that Plant has not produced sufficient evidence
from which a factfinder could conclude that he was disabled.
The definition of “physical or mental impairment” under the
ADA clearly includes Plant’s musculoskeletal condition of
knee contusions and back strain, see 29 C.F.R. § 1630.2(h)(1)
(1999), and the term “major life activity” includes many of
those activities described by the plaintiff: the EEOC
regulations and the appendix to those regulations identify
walking, performing manual tasks, working, standing, and
lifting as major life activities, see 29 C.F.R. §1630.2(i);
Interpretive Guidance 29 C.F.R. §1630.2(i) App. However,
Plant has not made a sufficient showing that his impairment
substantially limited his ability to perform those major life
activities. In his deposition, Plant stated that he was, at the
time of the deposition, injured to the point that he believed
himself completely unable to work, unable to sit for more
than three to five minutes, unable to drive on a daily basis,
and unable to lift, bend, or stoop without severe pain.
Initially, Plant stated that he suffered those same impairments,
“on and off,” during the time he was employed by Morton.
J.A. at 478-80 (Plant Dep.). Later, however, Plant agreed that
he was attributing his current inability to work to injuries that
resulted from yet another automobile accident, which
occurred nine months after he was terminated by Morton, in
April of 1997. Furthermore, Plant admitted that he worked
sporadically after his termination, from approximately
November of 1996 to April of 1997, at a job that involved
traveling to Pennsylvania once a week, installing computers,
and training customers to use their computers. Finally, Plant
admitted that he was never told by a physician that his
impairment was permanent; nor was he told, however, that it
was temporary.
Plant’s self-contradictory and logically suspect testimony is
simply not sufficient to support a jury finding that he was
disabled during the period at issue here, from April 26 until

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12 Plant v. Morton Int’l, Inc. No. 99-3445
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). In his brief, Plant claims that he is
disabled, because his ability to walk and to stand were
severely limited by his injuries. Based on the evidence
presented by Plant, it appears that he also considers himself
substantially restricted in the activities of bending, stooping,
running, exercising, and driving. Plant also argues that he
was “regarded as” disabled by Morton, and that this fact is
evidenced by Morton’s attempts to accommodate his medical
restrictions. Furthermore, Plant contends that he was
qualified for the position of intermix coordinator with certain
reasonable accommodations. Finally, since Morton has not
disputed that it knew of Plant’s medical problems, terminated
him, and either replaced him or left his position open while
seeking other applicants, Plant argues that he has made out a
prima facie case of discrimination. Although Morton claims
that Plant was terminated for poor job performance, Plant
urges that he has presented enough evidence to raise a
genuine issue of material fact with respect to Morton’s
proffered explanation, pointing to Dave Black’s alleged
statement that Plant was being terminated due to his absences
and to Bill Jones’s recantation of his negative appraisal of
Plant.
The district court found that Plant failed to establish that he
was disabled, because Plant’s “unsupported testimony” did
not demonstrate that his injury was sufficiently severe to limit
substantially his ability to perform a major life activity. It
further found that Morton’s attempts to accommodate Plant’s
restrictions were not sufficient to demonstrate that Morton
regarded Plant as disabled. Moreover, the district court
concluded that even if Plant were disabled, he was not
“otherwise qualified” for the position of intermix coordinator,
because by his own admission he could not perform the
essential functions of the job, such as traveling to customer
locations. Finally, the district court stated that even
assuming, arguendo, that Plant made out a prima facie case
of discrimination, he did not come forward with sufficient
No. 99-3445 Plant v. Morton Int’l, Inc. 9
1We note that 29 C.F.R. §§ 825.301(b)-(c) and 825.700(a) prescribe
almost identical notice rules when employers wish to designate unpaid
leave as FMLA leave. However, the interim regulations, which applied
to the parties in Cehrs, did not contain the same notice requirements for
designating unpaid leave as FMLA leave, nor did they explicitly state that
the failure to designate unpaid leave as FMLA leave stops the clock from
running on the employee’s 12-week entitlement. See 29 C.F.R.
§§ 825.301, 825.700(a) (1994) (interim regulations).
The Cehrs court did not directly address these regulations,
nor is it apparent from reading that decision whether the
employer had given notice to the plaintiff that her absences
would be counted as FMLA leave. Furthermore, the
employee in Cehrs had taken unpaid leave rather than paid
leave, see Cehrs, 155 F.3d at 779; therefore, the court had no
occasion to address § 825.208(c), which appears to govern
only those cases in which an employer wishes to designate
paid leave as FMLA leave.1 Because it is undisputed in this
case that Plant received his full salary during his second
absence from work, and because it is undisputed that Morton
never informed Plant that it was counting his paid absence
against the statutory FMLA allowance, Cehrs is inapplicable
to this case. Furthermore, the record contains uncontroverted
evidence that, although Plant did not specifically report to his
employer the re-injury of his back that occurred on April 26,
1996, Morton did receive a notice from Plant’s doctor, dated
May 6, 1996, excusing Plant from work due to a “[f]lare up
[of his] lumbar/back problem.” J.A. at 99 (Slip from Dr.
Owen Logee). The FMLA regulations make it clear that, in
such a situation, if the employer feels it does not have
sufficient information to determine whether the employee’s
reasons for requesting leave are encompassed by the FMLA,
“the employer should inquire further of the employee . . . to
ascertain whether the paid leave is potentially FMLA-
qualifying.” 29 C.F.R. § 825.208(a). The employee need not
invoke the FMLA by name in requesting leave for an FMLA-
qualifying reason. See id. § 825.208(a)(2).
We see no reason why § 825.208(c) should not be
considered valid and applicable to this case. In the absence of

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10 Plant v. Morton Int’l, Inc. No. 99-3445
2We note that this holding renders it unnecessary for us to address
Plant’s “stacking” argument, which appears to be a variation of his
argument pertaining to the notice requirements.
specific statutory language governing a topic, agency
regulations “are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.”
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). The FMLA itself is silent as
to the notice an employer must give to an employee before
designating his paid leave as FMLA leave. We believe that
§ 825.208(c) evinces a reasonable understanding of the
FMLA, reflecting Congress’s concern with providing ample
notice to employees of their rights under the statute. See 29
U.S.C. § 2619(a). Moreover, because the FMLA was
intended to set out minimum labor standards, we do not
believe that § 825.208(c) is inconsistent with legislative intent
merely because it creates the possibility that employees could
end up receiving more than twelve weeks of leave in one
twelve-month period, due to an employer’s failure to notify
them that the clock has started to run on their allotted period
of leave. See S. R EP . NO . 103-3, at 4-5 (1993), reprinted in
1993 U.S.C.C.A.N. 3, 6-7. We therefore disagree with
McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999),
and Covey v. Methodist Hospital of Dyersburg, Inc., 56 F.
Supp. 2d 965 (W.D. Tenn. 1999), which held that
§§ 825.208(c) and 825.700(a) were in conflict with the
FMLA’s creation of a narrow entitlement to twelve weeks of
leave and therefore invalid. See McGregor, 180 F.3d at 1308;
Covey, 56 F. Supp. 2d at 969-70. Rather, we conclude that
those regulations are valid and forbid employers from
retroactively designating FMLA leave if they have not given
proper notice to their employees that their statutory
entitlement period has begun to run.2 Accord Cline v. Wal-
Mart Stores, Inc., 144 F.3d 294, 300-01 (4th Cir. 1998);
Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp. 2d
878, 880-81 (S.D. Miss. 1999).
Having determined that, since his FMLA leave had not yet
started to run, Plant is not precluded from asserting an FMLA
No. 99-3445 Plant v. Morton Int’l, Inc. 11
claim due to the fact that he would have been unable to return
to work within a twelve-week period, we nonetheless must
consider whether Plant has demonstrated the other elements
of an FMLA claim. In particular, Plant is entitled to twelve
weeks of leave under the FMLA for his medical problems
only if he can show that he had a “serious health condition”
which rendered him “unable to perform the functions of” his
position. 29 U.S.C. § 2612(a)(1)(D); see Miller, 989 F. Supp.
at 946. According to the regulations, a serious health
condition must involve either inpatient care or continuing
treatment by a health care provider. See 29 C.F.R.
§ 825.114(a). Because the district court decided this case on
other grounds, it did not consider whether Plant’s medical
problems met the definition of a serious health condition
under the statute and its implementing regulations. We
therefore remand for that court to determine whether Plant has
successfully made out the elements of an FMLA claim.
C. The ADA Claim
In order to establish a prima facie case of discrimination
under the ADA, Plant must show 1) that he is disabled; 2) that
he is otherwise qualified for his previous position with
Morton, with or without reasonable accommodation; 3) that
he suffered an adverse employment decision; 4) that Morton
knew or had reason to know of his disability; and 5) that he
was replaced or that his position remained open while Morton
looked for other applicants. See Monette v. Electronic Data
Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If he
succeeds, the burden shifts to Morton to provide a non-
discriminatory explanation for its actions. See id. If Morton
satisfies its burden, Plant must then come forward with
evidence demonstrating that Morton’s proffered explanation
is pretextual. See id. At all times, Plant retains the ultimate
burden of persuasion. See id. at 1186-87.
A “disability” under the ADA is defined as
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of [an]
individual;

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