                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1124n.06

                                           No. 11-3280                                 FILED
                                                                                    Oct 31, 2012
                              UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

KELVIN GREER,                                        )
                                                     )
       Plaintiff-Appellant,                          )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
v.                                                   )   NORTHERN DISTRICT OF OHIO
                                                     )
CLEVELAND CLINIC HEALTH SYSTEM -                     )
EAST REGION,                                         )   OPINION
                                                     )
       Defendant-Appellee.                           )


       Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.


       Bernice B. Donald, Circuit Judge. Plaintiff-Appellant Kelvin Greer appeals the district

court’s opinion and order granting summary judgment to Defendant-Appellee Cleveland Clinic

Health System - East Region (“the Clinic”) on Greer’s claims of Family and Medical Leave Act

(“FMLA”) interference, FMLA retaliation, disability discrimination and failure to accommodate, and

denying Greer’s motion for partial summary judgment as to the disability discrimination and FMLA

interference claims. For the following reasons, we affirm.


                                                I.


       A. FMLA Requests


       On July 31, 2006, the Clinic hired Kelvin Greer as a part-time Support Services Assistant.

His duties included delivering meals to patients, transporting patients and medicine, and a variety
No. 11-3280


of other tasks. Before he began working at the Clinic, Greer sustained a hand injury that required

surgery. The surgery was scheduled for September 2006. Although Greer did not yet qualify for

FMLA leave at the Clinic, the Clinic permitted him to take a leave of absence until November 2006.

At the end of this leave period, Greer’s physician released him to return to work without restrictions.

In December 2006, Greer was promoted to a full-time position.


       In early 2007, Greer was diagnosed with Type II diabetes, which he controlled by exercising

and monitoring his diet and blood sugar. In November 2007, Greer requested to be moved to another

floor of the Clinic where he believed the workload to be lighter. Greer indicated that the only

response his supervisor, Birce Nash, gave him was “God bless you.”


       On December 7, 2007, Greer requested FMLA block and intermittent leave for the hand

condition for which he previously required surgery. He requested leave from December 7, 2007

through March 8, 2008. On December 11, 2007, Greer’s chiropractor certified his medical

condition. The certification stated: “[History Right] wrist abscess requiring surgical intervention.

Current [symptoms] reflect neurosensory involvement.” The chiropractor also authorized two to

four weeks of block leave and eight weeks of intermittent leave so that Greer could attend follow-up

appointments. From December 7, 2007 to December 17, 2007, Greer took time off of work for his

hand condition. During this time, Greer also saw a podiatrist about pain in his foot. The podiatrist

diagnosed Greer’s foot condition as a diabetic ulcer. The podiatrist treated Greer’s foot and

indicated the ulcer would heal. Greer said his foot felt normal again, and the podiatrist told Greer

that he did not need any additional time off of work.

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No. 11-3280


       Although the Clinic approved Greer’s FMLA request for block and intermittent leave from

December 7, 2007 to March 8, 2008, Greer did not receive notice of the approval. Thus, Greer

returned to work on December 17, 2007 unaware that the Clinic approved his FMLA request. On

December 26, 2007, Greer submitted a change of address form to the Clinic, which Greer later

acknowledged might have listed the wrong address.


       According to Greer, his work environment became very stressful. As a result, Greer relapsed

into drug use on two occasions, in February 2008 and again in April 2008. On the recommendation

of Nash, Greer entered the Clinic’s Employee Assistance Program, CONCERN.


       In May 2008, Greer’s foot condition worsened and he requested additional FMLA block and

intermittent leave. Greer’s physician provided a medical certification for this request in which he

indicated that Greer would be incapacitated for one month. The Clinic approved six weeks of block

leave but did not approve intermittent leave. Greer returned from FMLA block leave on June 13,

2008 without any restrictions.


       B. Absences from Work


       Greer incurred a number of unexcused tardies and absences from work during the course of

his employment with the Clinic. Greer claimed that many of his tardies and absences were due to

his foot pain and the fact that he had to soak his feet and change his socks regularly. Greer had

received a copy of the Clinic’s attendance policy during his orientation in July 2006 and later

indicated that he knew the attendance procedures at that time. The Clinic assigns points for

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No. 11-3280


violations of its attendance policy. These points can result in corrective actions such as counseling,

a Written Corrective Action, a Final Written Warning, suspension, or termination.


        On January 30, 2007, for the first time, Greer was a “no-call/no-show” for work. He stated

that he tried to call the Clinic but was unsuccessful in this attempt. As a result, the Clinic issued him

a Final Written Warning, rather than a suspension as the attendance policy mandates. From June

2007 to April 2008, Greer accumulated 32 attendance points. Under the Clinic’s attendance policy

at that time, employees could receive a corrective action if their point total exceeded 18 points in a

12-month period. Greer did not incur any attendance points for his time off in December or for his

FMLA leave beginning in May 2008. On July 11, 2008, Greer incurred another “no-call/no-show.”

He claims he intended to go to work, but fell asleep due to strong pain medication. After an

investigation of his attendance violations, Greer received a second Final Written Warning, but

because his most recent violation was a no-call/no-show, the Clinic’s policy required termination

of Greer’s employment. Greer was terminated on July 28, 2008.


        Greer filed suit, alleging FMLA interference, FMLA retaliation, disability discrimination,

and failure to accommodate. Greer moved for partial summary judgement on his FMLA interference

and discrimination claims. The Clinic moved for summary judgment on all claims on the basis that

Greer was terminated solely for his unexcused attendance violations. The district court granted the

Clinic’s motions for summary judgment and denied Greer’s motions for partial summary judgment.

Greer timely appealed.



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No. 11-3280


                                                 II.


       This Court reviews a district court’s grant of summary judgment de novo. Blackmore v.

Kalamazoo Cnty., 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper where there

is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). The court views the record in the light most favorable to the nonmoving party

and draws all reasonable inferences in favor of that party. Blackmore, 390 F.3d at 895.


       I. FMLA Interference


       A. Greer’s December 2007 request for FMLA block and intermittent leave.


       Under the FMLA, “an eligible employee shall be entitled to a total of 12 workweeks of leave

during any 12-month period . . . [b]ecause of a serious health condition that makes the employee

unable to perform the functions of the position of such employee.” 29 U.S.C.A. § 2612(a)(1)(D).

An employee is not limited to “block leave” but may be permitted to take the leave intermittently.

See 29 U.S.C.A. § 2612(b)(1). The Act prohibits an employer from interfering with, restraining, or

denying an employee’s exercise of, or attempt to exercise, his or her rights under the FMLA. 29

U.S.C.A. § 2615(a)(1).


       Greer first argues that because he did not receive notice of the Clinic’s approval of his

December 7, 2007 FMLA request, he was unaware of time that he could have taken off of work. If

he had known that FMLA leave had been approved, he argues, many of the days he was late or


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No. 11-3280


absent would have been protected under the FMLA, and thus the Clinic would not have been

permitted to use those days as part of its basis for his termination. His contention is that the Clinic

therefore interfered with and restrained him from exercising his FMLA rights pursuant to 29

U.S.C.A. § 2612 when it terminated him for tardies and absences that should have been covered

under protected leave.


       To establish a prima facie case of FMLA interference, Greer must show that (1) he was an

eligible employee; (2) the Clinic was an employer as defined by the FLMA; (3) he was entitled to

leave under the FMLA; (4) he gave the Clinic notice of his intention to take leave; and (5) he was

denied the FMLA benefits to which he was entitled. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d

549, 556 (6th Cir. 2006). If the employee is able to establish a prima facie case for FMLA

interference, we then apply the McDonnell Douglas framework whereby the burden shifts to the

employer to provide a nondiscriminatory reason for the alleged interference. If the employer is able

to articulate such a reason, the burden then shifts back to the employee to show that the employer’s

proffered reason is pretextual. Donald v. Sybra, Inc., 667 F.3d 757, 761-62 (6th Cir. 2012) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).


       The first three elements of Greer’s prima facie case for FMLA interference are not in dispute.

There are, however, disputes as to the fourth and fifth elements. The Clinic asserts that Greer did

not satisfy the fourth prong because he did not adequately notify the Clinic of his intention to take

leave for his foot condition. In response, Greer contends that his December 2007 FMLA request

covered his hand and his foot conditions. Greer asserts that because he indicated to the Disability

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No. 11-3280


Plan Office that he was requesting leave due to pain in his hand, blood sugar control problems, and

severe pain in his foot on the same day that he submitted his medical certification for his hand, the

Clinic received adequate notice of his intent to take leave for both conditions . The Clinic responds

that it was not required to approve Greer’s FMLA request for his foot condition because Greer failed

to submit a medical certification that he required time off for his foot.


       Greer provided adequate notice for his hand condition and was subsequently approved for

and took FMLA leave for his hand from December 7, 2007 through December 17, 2007.

Accordingly, Greer does not have a claim for FMLA interference as it relates to his hand, and thus

we must focus on whether Greer gave adequate notice for his intention to take FMLA leave for his

foot condition.


       When requesting FMLA leave, an employee is required to provide the employer with the

necessary details regarding the leave to be taken, and in the case of a medical condition, the employer

may require a medical certification from a physician to provide such details. 29 C.F.R. § 825.302(c).

Under the Clinic’s FMLA policy, medical certification is necessary before leave will be granted.

(D.E. #16-7 at 93, 99.) If an employer requires medical certification to take leave under the FMLA,

such certification must state when the serious health condition began, the probable duration of the

condition, and appropriate medical facts regarding the condition. 29 U.S.C. § 2613(b). Greer’s

medical certification indicates that his request for FMLA leave was for his hand, not his foot.




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No. 11-3280


       If a medical certification requires the aforementioned details regarding a condition, a finding

that the condition at issue be specifically named in the certification is implicitly required. Greer’s

certification for his December 7, 2007 request wholly lacked any mention of his foot condition and

thus cannot be deemed sufficient. See Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 578 (6th Cir.

2007); see also Brenneman v. MedCentral Health Sys., 366 F.3d 412, 427-28 (6th Cir. 2004)

(finding that plaintiff failed to give notice to his employer for purposes of FMLA leave where the

certification failed to mention that his absences were related to his diabetes). Moreover, one’s own

claim that one cannot work is insufficient notice for an employer that requires medical certification

to approve FMLA leave, and thus Greer’s assertion that he informed the Disability Plan Office of

his foot condition, despite the lack of medical certification for that condition, is unavailing. See

Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1165-66 (N.D. Ohio 1997).


       Thus, we find that Greer provided adequate notice for his hand condition only and did not

provide adequate notice to the Clinic to take FMLA leave for his foot condition. Accordingly, Greer

fails the fourth prong of his prima facie case for FMLA interference, precluding the need to address

the fifth prong.


       B. Greer’s May 2008 request for FMLA block and intermittent leave.


       Greer also asserts that the Clinic interfered with his FMLA rights when it approved his May

2008 FMLA request for block leave but denied his request with respect to intermittent leave. The




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No. 11-3280


parties do not dispute that Greer satisfies the first four elements of the prima facie case. However,

the Clinic contends that the fifth element is lacking, a position with which the district court agreed.


        Greer insists that his physician certified him for intermittent leave by checking “yes” on the

certification form that asked “[w]ill it be necessary for the employee to work only intermittently or

work less than a full schedule as a result of the condition.” Greer further argues that this certification

authorized leave dating back to December 2007 and extended through the treatment he received

during his May 2008 FMLA leave. This assertion is incorrect. While Greer was diagnosed with the

foot condition in December 2007, he did not request FMLA leave for his foot until May 2008. As

previously addressed, each request to the Clinic for FMLA leave must be accompanied by a medical

certification, which must state when the health condition for which the employee is seeking leave

began. As such, the May 2008 certification form did not authorize leave dating back to December

2007, but merely made the required statement about when Greer’s foot condition began. Further,

an employee may not take intermittent leave unless agreed upon between the employee and the

employer or unless medically necessary. 29 U.S.C.A. § 2612(b)(1). There is no evidence that prior

to Greer submitting his May 2008 FMLA leave request, the Clinic agreed to allow him to take

intermittent leave.


        We thus turn to whether intermittent leave was medically necessary in accordance with the

medical certification provided with the leave request. Although Greer’s physician certified him for

five treatments occurring at five or seven day intervals, the physician specifically indicated that Greer

would be incapacitated and unable to work for the duration of his treatments. Incapacitated “is

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No. 11-3280


defined as being ‘unable to work at all or . . . unable to perform any one of the essential functions

of the employee’s position[.]’” Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 569-

70 (6th Cir. 2010) (quoting 29 C.F.R. § 825.115 (2006) (amended 2009)). Given that Greer’s

position required him to be on his feet and mobile for the duration of his shifts and that his podiatrist

indicated Greer would be required to wear a non-weight-bearing cast on his foot, Greer would be

unable to perform the essential functions of his position and was thus incapacitated. The physician’s

recommendation that Greer not work for one month, which was later extended to six weeks, leads

to the conclusion that Greer required block leave, not intermittent leave.


        Given the foregoing, the district court properly found that no material issue of fact exists as

to the denial of intermittent leave with respect to Greer’s May 2008 request.


        II. FMLA Retaliation


        Greer next argues that the Clinic retaliated against him for requesting FMLA leave in

December 2007 and for taking FLMA leave in May 2008. He contends that the Clinic used the

tardies and absences he accrued from December 2007 to July 2008 as a basis for his termination, and

that had he been notified of and granted his right to take intermittent leave pursuant to his two

requests, those absences would have been covered under the FMLA and would have protected him

from an adverse employment action.


        Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against

any individual for opposing any practice made unlawful [under the FMLA].” 29 U.S.C.A. §

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No. 11-3280


2615(a)(2). To make out a prima facie case of FMLA retaliation, a plaintiff must show that (1) he

was engaged in a protected FMLA activity; (2) the employer knew he was exercising his rights under

the Act; (3) after learning of the employee’s exercise of his FMLA rights, the employer took adverse

employment action against him; and (4) there was a causal connection between the protected FMLA

activity and the adverse employment action. Sybra, 667 F.3d at 761 (quoting Killian v. Yorozu Auto.

Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)). If the plaintiff establishes a prima facie case for

FMLA retaliation, we then again apply the familiar McDonnell Douglas burden-shifting framework.

Edgar v. JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006).


       There is no dispute that Greer was engaged in protected FMLA activity, that the Clinic knew

he was exercising his FMLA rights, or that Greer was terminated after returning from FMLA leave.

At issue is whether there was a causal connection between Greer’s exercise of his FMLA rights and

his subsequent termination.


       Greer sets forth two arguments in support of a causal connection. He first argues that his

absences and tardies between December 2007 and March 2008 should be covered under the FLMA

intermittent leave for which he was approved but never received notice. In other words, Greer argues

that a causal connection is established by virtue of the fact that the Clinic improperly considered the

absences and tardies Greer accrued during this time frame as a basis for his termination. Greer also

argues that the close temporal proximity between the exercise of his FMLA rights and his

termination raises an issue of causation. While the district court found that Greer presented

insufficient evidence of a causal connection, this court has held that additional scrutiny by one’s

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No. 11-3280


employers, temporal proximity, or both, are enough to establish the causal nexus needed to make out

a prima facie case of FMLA retaliation. See Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435-36 (6th

Cir. 2009). In light of this precedent, we find that the Clinic’s termination of Greer on the basis of

absences during the time he was approved for FMLA leave and the close temporal proximity

between Greer’s exercise of a protected right and his termination are sufficient to establish a prima

facie case of FMLA retaliation. The Clinic must therefore provide a non-retaliatory reason for

Greer’s termination.


       The Clinic argues that Greer’s accumulated attendance points for tardies and absences

resulted in a violation of the Clinic’s attendance policy and that this violation serves as the sole

reason for the adverse employment action. In fact, the Clinic asserts that even if it were to ignore

attendance points that Greer accrued during the time he was approved for FMLA leave, Greer would

still have accrued twenty-four points in less than twelve months, five points more than necessary

to trigger corrective action. Greer does not dispute this point. Having provided a non-retaliatory

reason for the termination, the burden shifts back to Greer to show that the Clinic’s reason was

pretextual.


       Greer asserts that pretext is demonstrated by the Clinic’s manipulation of its attendance

policy so that it could use FMLA protected absences as the basis for his termination. We are not

persuaded that the Clinic’s consideration of Greer’s tardies and absences from December 7, 2007

through March 8, 2008 evidences pretext. Even assuming the absences themselves were entitled to

FMLA protection, this would not explain or excuse the altogether separate issue of Greer’s “no

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No. 11-3280


call/no shows.” Greer failed to notify the Clinic in advance of certain tardies and absences and

likewise failed to provide any explanation for them after the fact. Despite Greer’s utter lack of

communication with the Clinic about his attendance issues, he expects the Clinic to have intuited

that they were related to his medical conditions and, further, asks this court to find that the Clinic

violated the FMLA in holding Greer accountable for his violations of the Clinic’s attendance policy.

We decline to do so and find that the district court properly granted the Clinic’s motion for summary

judgment as to Greer’s FMLA retaliation claim.


        III. Disability Discrimination


        A. Greer’s diabetes is not a qualifying disability.


        Greer brought a state law claim against the Clinic for disability discrimination in violation

of O.R.C. § 4112.02(A). Section 4112.02(A) states that “[i]t shall be an unlawful discriminatory

practice [f]or any employer, because of the . . . disability . . . 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.” As the district court stated, in cases of disability discrimination Ohio courts are

guided by federal decisions interpreting the Americans with Disabilities Act (“ADA”). Thus, we

review Greer’s disability discrimination claim in accordance with decisions construing the ADA.

See Holt v. Olmsted Twp. Bd. of Trs., 43 F. Supp. 2d 812, 825 (N.D. Ohio 1998).




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        To establish a prima facie case of disability discrimination, a plaintiff must show that: (1)

he is disabled; (2) he is otherwise qualified for the position with or without reasonable

accommodation; and that (3) he was discharged solely because of his disability. Sybra, 667 F.3d at

763. Because Greer’s termination occurred in 2008, he does not get the benefit of the ADA

Amendments Act of 2008 that defines the term “disability” more broadly.1 The version of the ADA

that applies to Greer defines the term “disability” as “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual; (B) a record of such

an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.A. § 12102(2)

(2006). “[M]ajor life activities include, but are not limited to, . . . walking, standing, lifting,

bending, . . . and working.” Id. In determining whether a disability substantially limits an individual

in a major life activity, we look to the nature and severity of the impairment, its duration or expected

duration, and the actual or expected permanent or long-term impact of the impairment. 29 C.F.R.

§ 1630.2(j)(2) (2006).


        Greer claims that his chronic diabetes, with associated complicating factors, severely limits

his ability to perform major life activities, such as walking and working. In support of this assertion,

Greer cites a number of cases holding that complications from diabetes may constitute a disability.

In Lawson v. CSX Transp., Inc., the Seventh Circuit found that a diabetic with severe insulin-

dependence was disabled under the ADA. 245 F.3d 916, 923 (7th Cir. 2001). That court also found


       1
          The ADA Amendments Act of 2008 became effective on January 1, 2009, and this court
has held that the amendments are not retroactive. Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d
562, 565 (6th Cir. 2009).

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a plaintiff who had uncontrollable hypoglycemic episodes due to his inability to control his blood

sugar was disabled within the meaning of the ADA. Nawrot v. CPC Int’l, 277 F.3d 896, 905 (7th

Cir. 2002). And this court has held that a diabetic with fluctuating blood-sugar levels that caused

irritability so severe that he could not get along with co-workers was disabled. Gilday v. Mecosta

Cnty., 124 F.3d 760, 762-65 (6th Cir. 1997). However, these cases involved plaintiffs whose

impairments were far more severe in nature, duration, and long-term impact than Greer’s. It is true

that Greer’s chronic diabetes led to his ulcerous foot condition and that left untreated, Greer’s foot

could become infected and his condition could become life or limb threatening. Courts, however,

do not consider what may or could occur with regard to a disability when construing the ADA.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999).2 Greer received treatment for his foot,

and although Greer was restricted from walking and lifting heavy items while on FMLA leave, his

doctor approved him to return to work without restrictions on his activities, and even indicated that

Greer’s foot condition was “terminated.” Furthermore, Greer admits that despite the pain in his foot

he was able to walk and, in fact, often chose to walk to work rather than drive. At most, Greer’s

diabetes caused a temporary limitation on a major life activity, and, therefore, it does not give rise

to a finding that he was disabled within the meaning of the then applicable provisions of the ADA.

See Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996).




        2
         The amendments to the ADA reject the requirement in Sutton that whether an impairment
substantially limits a major life activity is to be determined with reference to the ameliorative effects
of mitigating measures. 42 U.S.C.A. § 12101 n. Sec. 2(b)(2). But, as previously stated, these
amendments do not apply in this case.

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No. 11-3280


       B. Perceived Drug Use as a Disability.


       Greer also contends that the Clinic perceived that his attendance problems were caused by

ongoing drug use and, thus, that the Clinic discriminated against him by terminating him on that

basis. He also argues that he was not a current user of illegal drugs when he was terminated. While

drug addiction is a recognized handicap under Ohio state law, O.R.C. § 4112.02, to avail oneself of

protection under the statute, an employee must (1) have successfully completed a drug rehabilitation

program and no longer be engaging in drug use; (2) be participating in a drug rehabilitation program

and no longer engaging in drug use; or (3) be erroneously regarded as engaging in illegal drug use.

O.R.C. § 4112.02(Q)(1)(b)(i)-(iii).3


       Greer asserts that he was not currently abusing drugs when the Clinic fired him in July 2008

and that he had participated in an employee assistance program to address his illegal drug use. While

Greer did avail himself of the Clinic’s CONCERN program, he admitted during a counseling session

on September 10, 2008 that he had relapsed. He also acknowledged that he had been dishonest

during a session on April 2, 2008, when he claimed that he only abused alcohol and that he had been

sober for five years. In Greer’s deposition, he further admitted to drinking alcohol and using crack

cocaine on February 14, 2008 and April 11, 2008. The Court of Appeals of Ohio has held that

“[c]urrent drug use means that the illegal use of drugs occurred recently enough to justify an

employer’s reasonable belief that involvement with drugs is an on-going problem.” Corr. Corp. of



       3
           The ADA provides the same protections as the Ohio statute. See 42 U.S.C.A. § 12114(b).

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No. 11-3280


Am. v. Youngstown Human Relations Comm’n, 742 N.E.2d 1177, 1181 (Ohio Ct. App. 2000) (citing

Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir. 1999)). Furthermore, “[a]n

employee illegally using drugs in the weeks and months prior to discharge is a ‘current’ illegal user

of drugs for the purposes of the ADA and Rehabilitation Act.” Corrections Corp., 742 N.E.2d at

1181(citing Shafer v. Preston Mem. Hosp. Corp., 107 F.3d 274, 280 (4th Cir. 1997)).


       Greer was engaged in illegal drug use approximately three months prior to his termination.

Although the Clinic denies terminating Greer on the basis of any illegal drug use, we find that Greer

was a “current” drug user within the meaning of the ADA at the time of his termination, and, thus,

the Clinic did not erroneously regard him as engaging in illegal drug use. Consequently, Greer is

excluded from statutory protection and has failed to set forth a prima facie case for discrimination

on the basis of perceived drug use.


       C. Failure to Accommodate


       Lastly, Greer claims that the Clinic failed to accommodate his disability by refusing to

transfer him to another floor of the Clinic where he perceived the workload to be lighter. An

employer has a duty to accommodate an individual with a qualifying disability if the accommodation

is reasonable. See 42 U.S.C.A. § 12111(8); see also Talley v. Family Dollar Stores of Ohio, Inc.,

542 F.3d 1099, 1108 (6th Cir. 2008). But because we find that Greer did not have a qualifying

disability, the Clinic had no such duty.


                                                III.

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No. 11-3280


       Based on the foregoing analysis, we find that the district court properly granted summary

judgment in favor of the Clinic on Greer’s claims. Accordingly, we AFFIRM.




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