                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0069p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                      X
                                 Plaintiff-Appellee/ -
 WILLIAM T. MOORER,

                                   Cross-Appellant, -
                                                       -
                                                       -
                                                           Nos. 03-5855/5965

                                                       ,
            v.                                          >
                                                       -
                                                       -
                                                       -
 BAPTIST MEMORIAL HEALTH CARE SYSTEM;

                                                       -
 BAPTIST MEMORIAL HEALTH CARE CORPORATION

                                                       -
 (03-5855/5965); CATHY M. HILL; JOHN N. ROBBINS

                             Defendants-Appellants/ -
 (03-5855),
                                                       -
                                   Cross-Appellees. -
                                                      N
                        Appeal from the United States District Court
                     for the Western District of Tennessee at Memphis.
                     No. 99-02043—Bernice B. Donald, District Judge.
                                          Argued: September 15, 2004
                                   Decided and Filed: February 11, 2005
          Before: BOGGS, Chief Judge; CLAY, Circuit Judge; HAYNES, District Judge.*
                                               _________________
                                                     COUNSEL
ARGUED: Paul E. Prather, KIESEWETTER WISE KAPLAN SCHWIMMER & PRATHER,
Memphis, Tennessee, for Appellants. Justin S. Gilbert, THE GILBERT FIRM, Jackson, Tennessee,
for Appellee. ON BRIEF: Paul E. Prather, Tanja L. Thompson, KIESEWETTER WISE KAPLAN
SCHWIMMER & PRATHER, Memphis, Tennessee, for Appellants. Justin S. Gilbert, THE
GILBERT FIRM, Jackson, Tennessee, J. Houston Gordon, LAW OFFICE OF J. HOUSTON
GORDON, Covington, Tennessee, for Appellee.
        CLAY, J., delivered the opinion of the court, in which HAYNES, D. J., joined. BOGGS, J.
(p. 19), delivered a separate opinion concurring in part and dissenting in part.




         *
         The Honorable William J. Haynes, Jr., United States District Judge for the Middle District of Tennessee, sitting
by designation.


                                                           1
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                         Page 2


                                        _________________
                                            OPINION
                                        _________________
         CLAY, Circuit Judge. Defendants Baptist Memorial Health Care System and Baptist
Memorial Health Care Corporation (collectively “Baptist”) appeal the June 3, 2003 judgment of the
district court in favor of Plaintiff William “Tate” Moorer on his claim for discriminatory discharge
in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117 (“ADA”).
Baptist asserts that the district court erred in finding that it regarded Moorer as disabled and that it
discharged Moorer because of his perceived disability. Baptist also challenges the district court’s
award of $250,000 to Moorer as compensatory damages for emotional distress. Moorer cross-
appeals the district court’s earlier grant of summary judgment in favor of Baptist on his claim under
the Family Medial Leave Act, 29 U.S.C. § 2601-2654 (“FMLA”). For the reasons that follow, we
AFFIRM the judgment in favor of Moorer on his ADA claim, but REVERSE the order granting
summary judgment in favor of Baptist on Moorer’s FMLA claim.
                                                 I.
                                             Background
A.      Substantive Facts
        Plaintiff William “Tate” Moorer worked for Defendants Baptist Memorial Health Care
System and Baptist Memorial Health Care Corporation for 17 years prior to his termination in 1997.
Over the years, Moorer enjoyed a series of promotions, culminating in 1995, when Baptist promoted
him to Administrator and Chief Financial Officer of Tipton County Baptist Hospital (“BMH-
Tipton”) and Lauderdale Baptist Hospital (“BMH-Lauderdale”). Moorer was the only administrator
in the Baptist system who had responsibilities for two hospitals. His responsibilities included the
day-to-day operation of the hospitals; the physical condition and safety of the hospitals; quality of
patient care; the development of medical staff; the annual budgetary process and financial results;
the leasing of space to physicians and collecting rent from them; and legal compliance. Starting in
1995, Moorer reported directly to Steve Mansfield, Chief Executive Officer for Baptist’s regional
hospitals.
        On January 27, 1997, Mansfield and his direct supervisor, John Robbins, Baptist’s Executive
Vice President, met with Moorer to discuss a list of performance concerns set forth in a performance
evaluation dated January 26, 1997. Approximately two weeks later, Moorer responded orally with
a “plan of action” to address the concerns, and Mansfield and Robbins agreed to it.
        In April 1997, Mansfield assumed a new role as the CEO of Baptist East, a hospital in
Memphis, Tennessee. His job duties were divided among several people, each of whom assumed
the new job title of “market leader.” On May 12, 1997, Cathy Hill became the market leader for all
of the hospitals and physician practices in the West Tennessee market, and assumed responsibility
for supervising Moorer. In transferring his West Tennessee duties to Hill, Mansfield met with Hill
and gave her the January 26, 1997 performance evaluation that he had prepared for Moorer.
Mansfield told Hill that Moorer had made progress in some areas, but not others, and that Hill
should follow up on those areas of continuing concern.
        On June 9, 1997, Hill met with Moorer and discussed the January 26, 1997 performance
evaluation. She asked Moorer for “his feedback regarding that memo and where he was, where he
saw himself in relation to those issues identified,” and she asked for “his plan for corrective action.”
Hill told Moorer to put his feedback in written form and that it would be for “[her] eyes only.” On
June 16, 1997, Moorer faxed the requested memo to Hill, which Hill acknowledged receiving.
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                                       Page 3


        Hill and Moorer met on July 9, 1997 to discuss Moorer’s June 16, 1997 memorandum. Hill
promised to provide Moorer with a list of goals that he was to accomplish, and Moorer agreed to
meet those goals. On July 21, 1997, Hill prepared a draft memorandum containing performance
goals, but never gave it to Moorer. That memorandum acknowledged that Moorer had made efforts
to correct certain performance deficiencies, but added that he needed to improve his overall job
performance and that failure to do so by September 15, 1997 might result in his termination.
        On July 22, 1997, Hill was attending a meeting of the West Tennessee Baptist Health
Services Group Board, a meeting that Moorer also attended. Hill was standing in a corridor, outside
of the meeting room, when she greeted Moorer and thought she perceived the smell of alcohol on
his breath. At trial, Hill described the interaction as follows:
         Quite frankly, as I had thought about this, you know, Mr. Moorer had told me in his
         – in his letter that he sent me that he had sleepless nights worrying about some of
         these performance issues. So at that particular night,…I felt that Mr. Moorer was too
         smart and knew – had worked for Baptist too long to know that – to know better than
         to come to a meeting, but I wasn’t sure if the performance issues were causing an
         alcohol [sic] or if there was an alcohol performance issue, I didn’t know.
During the meeting, Hill observed Moorer slump in his chair with his chin on his chest, and then
straighten up and be “rather fidgety” in his seat. She also noticed that his complexion appeared
ruddy. Moorer denies that he had been drinking alcohol, and instead explains that, after smoking
cigarettes, he had washed his mouth out with Listerine just prior to the meeting. He attributed his
fatigue and his ruddy complexion to the tropical vacation from which he had recently returned.
         Hill did not confront Moorer about her perception of alcohol on his breath, but instead, two
days later, told Robbins about the incident. About a week after that, Hill, Robbins, and Larry
Braughton, Senior Vice President of Human Resources, discussed the issue. Braughton
recommended that Hill contact “CONCERN,” which is Baptist’s Employee Assistance Program.
Hill followed this suggestion and contacted Patrick Minderman, Director of CONCERN, during the
first week of August 1997. She told Minderman that “there was a high level administrator in the
Baptist system that [ sic] she was concerned about because of his work performance problems.” Hill
called Minderman again, possibly a week or two later, indicating that she was still concerned about
this employee and provided more detailed information. During that call, she identified Moorer by
name, telling Minderman that Moorer had been having performance problems for the last year and
mentioned that Moorer had shown up at a meeting with alcohol on his breath.
       On August 6, 1997, Hill sent an e-mail to Robbins and Braughton concerning Moorer as a
follow-up to the conference the previous week. The e-mail stated, in part:
         I have made the contact recommended, had confidential discussions and was given
         the following recommendation:
                                             1
         1. Act Swiftly… Our resource[ 2
                                               ] agrees with our assessment of high likely hood
         [sic] that the pivot incident[ ] is good indicator of broader, lon[g] term issue.
         2. Discuss performance issues and as a SIDE part of that concern, make
         management referral giving individual small amount of time to make decision and
         first interview. Do not use the observation 2 weeks ago as primary emphasis.

         1
             The “resource” mentioned in the e-mail was Minderman.
         2
         The phrase “pivot incident” refers to the July 22, 1997 incident in which Hill perceived a smell of alcohol on
Moorer’s breath.
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                       Page 4


       3. Plan on minimum of 3-4 weeks of leave for the individual.
       4. Plan to terminate if refuses to act on management recommendation.
The e-mail concluded with a “[b]ack up plan[]” to cover for Moorer during his leave “until we get
a better idea of long term situation.”
        Hill testified that “Mr. Minderman had given us the specific recommendations regarding how
to handle Mr. Moorer’s situation.” At trial, however, Minderman denied telling Hill that Moorer
had an alcohol problem or making a recommendation that Moorer might need to be terminated. He
also did not recall telling Hill that the July 22 incident in which Hill smelled alcohol on Moorer’s
breath was a “good indicator of [a] broader, long-term issue”; he further denied that such an incident
would be a good indicator of a broader, longer-term issue. In fact, Minderman had no assessment
of Moorer’s condition as of August 6, 1997. He flatly denied telling Hill that Moorer should be
placed on leave for treatment or that Hill should plan a leave for him.
         On August 12, 1997, Hill, Robbins, and Braughton discussed Hill’s August 6, 1997 e-mail
and agreed to it as the appropriate plan of action. Collectively, they decided to refer Moorer to the
CONCERN program for a fitness for duty evaluation. With input from Braughton, Robbins, and
legal counsel, Hill prepared a letter to Moorer that outlined alleged performance deficiencies and
goals that Moorer was expected to meet. The letter was a revision of the draft letter Hill had
prepared on July 22, 1997 but never gave to him. The letter noted, in part, “While I find that you
have made efforts to correct the noted deficiencies and have made some improvements in some
areas, there is a lack of substantial progress toward elimination of root causes and thus, limited
improvements in your overall job performance and the desired outcomes in the operations at the two
facilities you administer.” These purported deficiencies included inconsistent financial reporting;
past due accounts receivable; improper management of a physician’s contract; lack of effort to
educate his staff regarding revised budget processes; customer satisfaction issues; and symptoms
of drunkenness exhibited at the July 22, 1997 meeting. The letter continued, “I have made a
management referral to Concern, EAP, for fitness assessment and any resulting plan of action. This
is a mandatory action and your failure to participate and cooperate by 10 am, August 20, 1997 will
result in your immediate termination.”
        The letter further instructed Moorer “to refrain from ANY contact with ANY hospital
personnel” until Robbins and Hill had “full clarification of issues and recommendations” from the
fitness assessment. It also set out “additional action plans and goals” for Moorer and warned that
“[f]ailure to 100% successfully adhere to or complete” them would be “a basis for immediate
additional disciplinary actions up to and including termination.” Contrary to the no-contact
instruction, however, some of these goals required contact with hospital personnel, including
revising the BMH-Tipton’s strategic plan, which would give Moorer “the opportunity to personally
interact with all levels of staff.” Id. The strategic plan was required to be submitted by August 27,
1997.
       Robbins and Hill met with Moorer on August 19, 1997 and presented Moorer with the letter.
During the meeting, Hill told Moorer that she had a family history of alcoholism and told Hill that
she thought he was an alcoholic. Hill and Robbins then assured Moorer that he would have a job
when he returned from alcohol rehabilitation.
        To avoid termination, Moorer agreed to have an evaluation the next morning with John
Houlihan of CONCERN. He met with Houlihan, who diagnosed Moore with “chemical abuse” and
recommended treatment at the Anchor Hospital/Talbott Recovery Center. On August 22, 1997,
Moorer flew to the recovery center in Atlanta. He was scheduled for five weeks of treatment and
stayed the full five weeks.
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                                           Page 5


        On August 28, 1997, while Moorer was at the recovery center, Hill telephoned Moorer’s wife
at home and said, “I know an awful lot about alcoholism and alcoholics.” She told Mrs. Moorer
that her father was an alcoholic, as was her brother, who had killed himself. She also said that
“alcoholism   is an incurable disease and your husband will never be cured, and it is a deadly
disease.”3
         On August 21, 1997, Dr. Jesse Cannon, Chief of the Medical Staff at BMH-Tipton, sent a
letter to the President of Baptist, with copies to Hill and Moorer, as well as to Anita Vantries of the
Tennessee Health Care Facilities Commission (“THFC”), the state licensing agency for hospitals.
Cannon’s letter forwarded a list of problems and deficiencies at the hospital that had come to light
over the past three to five years and attached complaints of other physicians as well. Cannon
attributed these problems to management’s requirement that the system must “decrease cost at all
cost.” The problems included the decision of Moorer to close restroom facilities in the south
doctor’s office building because a patient had sued the hospital after slipping on the wet floor; the
poor maintenance of the hospital’s facilities and unsanitary conditions; leaking ceilings (including
in the operating rooms); a fire hazard in an operating room due to a lack of storage space for
supplies; too few nurses; and shortages of supplies. Hill confirmed many of these complaints
through her own investigation and was required to spend $200,000 to address them.
        Other issues purportedly came to Hill’s attention in this time-frame. First, Hill could not
locate the leases signed by the physicians for the office space in the physician office buildings at
BMH-Tipton; she also allegedly learned via verbal reports from Joe Hunsucker, an internal auditor,
that physicians were obtaining medical supplies and pharmaceuticals from the hospital, as well as
using labor from the hospital’s business office, without compensating the hospital. Second, Hill
received complaints from employees at BMH-Tipton about certain employee relations issues,
including an accusation that Moorer did not respect employees, especially women, and the results
of a survey showing that employees had rated the administrative leadership below national norms.
Third, on September 2, 1997, Hill learned about high accounts receivable balances for the hospitals
that Moorer managed, apparently due to a backlog of claims and an inordinately high error rate in
claims processing. Fourth, during the first week of September, 1997, Hill discovered that certain
home health care employees on the home health agency payroll actually were working at the
hospital, raising the potential of fraud because Medicare provides a larger reimbursement for home
health care workers who work for the agency as opposed to the hospital.
        Between August 19, 1997 and September 12, 1997, Hill had regular contact with Robbins
regarding Moorer. She recommended that Moorer not be permitted to come back to work at BMH-
Tipton because of his performance problems. Robbins took Hill’s recommendation under
advisement, and later decided to terminate Moorer because he had lost confidence in Moorer’s
ability to run an independent facility. According to Hill, the decision to terminate Moorer’s
employment was made during the week prior to September 12, 1997.
          Robbins and Braughton developed a script with the human resources department that Hill
was to follow when terminating Moorer’s employment. After consulting with Houlihan at
CONCERN and with Moorer’s therapist, Braughton determined that it would be best to relay the
termination decision in person and that the most therapeutically appropriate day to relay this
information was September 18, 1997. Robbins and Hill traveled to Atlanta on that day and met with
Moorer and his primary therapist. Hill read primarily from the termination script. Moorer recalls
little from the meeting except that Hill told him that his work problems were caused by his disease.

         3
          At trial, Hill confirmed that she had personal family experiences that caused her to be interested in alcoholism.
She explained that both her father and brother had abused alcohol, and her brother committed suicide after a long battle
to cope with a brain injury he had suffered in an alcohol-related automobile accident. According to Hill, her personal
experience enabled her to have a “greater insight” into alcoholism.
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                         Page 6


        Moorer completed the five-week treatment period, but his doctors recommended that he
remain in treatment for a few additional weeks. Moorer elected to leave the treatment program
against medical advice. Moorer admits he is an alcoholic, but testified that he has not had a drink
since August 22, 1997.
B.      Procedural History
        Moorer brought suit against Baptist, alleging that Baptist discharged Moorer in violation of
the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117 (“ADA”), the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”), the Family Medial
Leave Act, 29 U.S.C. § 2601-2654 (“FMLA”), and the Tennessee Human Rights Act, TENN. CODE
ANN. § 4-21-101 et seq., the Tennessee Handicap Act, TENN. CODE ANN. § 8-50-103, and that
Baptist committed the tort of tortious misrepresentation. On February 22, 2000, the district court
granted summary judgment in favor of Baptist on Moorer’s state law claims for tortious
misrepresentation and for violation of the Tennessee Handicap Act and the Tennessee Human Rights
Act on statute of limitations grounds. The court also granted summary judgment to Baptist on
Moorer’s FMLA claim on the ground that Moorer had presented no evidence of a causal connection
between his termination and his use of FMLA leave. The court further held that Moorer had no
substantive right to return to his job after his leave because his “termination does not appear to have
been due to his use of FMLA leave, but rather to other factors (i.e., deficient performance according
to Baptist or age and disability discrimination according to Moorer).” Finally, the court denied
Baptist’s motion for summary judgment as to Moorer’s ADA and ADEA claims finding genuine
issues of material fact for trial.
        After a bench trial on Moorer’s ADA and ADEA claims, the district court concluded that
Baptist violated the ADA, but not the ADEA. The district court found that Moorer did not suffer
an actual disability, nor did he have a record of a disability. Instead, the court focused on the theory
that Baptist regarded him as having a disability. The court cited to the following evidence to support
its conclusion that Baptist linked Moorer’s alleged performance deficiencies to a belief that he was
an alcoholic: (1) Baptist demanded that Moorer undertake a fitness for duty examination; (2) on
August 19, 1997, Hill told Moorer that she thought he was an alcoholic and required him to seek
treatment; (3) while Moorer was undergoing treatment, Hill called Moorer’s wife and told her that
alcoholism is an incurable disease and, therefore, Moorer would never be cured; and (4) when Hill
fired Moorer, she told him that his work-related problems were caused by his disease of alcoholism.
        Finding Hill’s testimony “lacking in credibility” and to be of “no value,” the court rejected
Hill’s assertion that she relied solely on Moorer’s poor work performance in requiring him to have
treatment and then recommending his termination. Rather, the court found “that Hill acted in accord
with her belief that Plaintiff’s deficiencies were related to his alcoholism.”
         The court next found that Hill believed Moorer’s alcoholism to substantially limit the major
life activity of working. The court noted that Moorer’s job duties were diverse, requiring general
skills that could be used in a broad range of fields. The court found that the “skills required of
Plaintiff as a hospital administrator are easily identified as necessary for most high-level
management positions,” regardless of field. Therefore, the court concluded that it did not need
“quantitative evidence that his impairment precluded him from a certain number of jobs in the
relevant market.” Further, the court found that “since Hill believed that Plaintiff’s alcoholism
substantially limited his ability to work at Baptist, she must also have recognized that such an
impairment would have precluded him from performing a broad class of jobs.”
        Last, the court found that Baptist’s articulated reasons for terminating Moorer “were
identified only after Hill had already concluded that Plaintiff’s alcoholism prevented him from
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                        Page 7


working; as such, they are pretext, regardless of their alleged validity.” (citing Maddox v. Univ. of
Tenn., 62 F.3d 843, 888 (6th Cir. 1995)). As the court summarized in its accompanying order:
       Plaintiff’s supervisor Cathy Hill perceived Plaintiff as an alcoholic and perceived
       that alcoholism precluded him from competently performing his job. Based on this
       perception, Defendant regarded Plaintiff as disabled and used subsequently
       discovered evidence of Plaintiff’s deficiencies to justify her unlawful basis for his
       discharge.
        After a subsequent hearing on damages, the court ordered a back pay award of $425,553.61,
plus $16,787.86 in pre-judgment interest on the back pay. The court also awarded $250,000 in
compensatory damages for Moorer’s emotional distress, plus $17,732.72 in prejudgment interest.
The court cited to evidence of Moorer’s sleep deprivation, anxiety, and the fact that the reason for
his termination, alleged alcoholism, became public knowledge in his small community. The court
also awarded $124,260.45 in front pay because reinstatement was not an option. The court declined
to award punitive damages. Separately, the court awarded Moorer’s counsel $212,060.34 in
attorneys’ fees and costs.
        Judgment was entered on June 3, 2003, and Baptist filed its notice of appeal on June 27,
2003. Moorer filed a notice of appeal of the order granting summary judgment in favor of Baptist
on his FMLA claim and the judgment in favor of Baptist on his ADEA claim. On appeal, Moorer
has not raised any argument concerning his ADEA claim, so he has waived this issue on appeal.
                                                II.
                                             ADA Claim
A.     Standard of Review
         On the appeal of the bench trial of an ADA claim, we review the district court’s findings of
fact for clear error. MX Group, Inc. v. City of Covington, 293 F.3d 326, 331 (6th Cir. 2002) (citing
Burzynski v. Cohen, 264 F.3d 611, 616 (6th Cir. 2001); AM Intern., Inc. v. Int’l Forging Equip.
Corp., 982 F.2d 989, 998 (6th Cir. 1993); FED. R. CIV. P. 52(a)). “‘This standard does not entitle
a reviewing court to reverse a district court’s findings of fact because the reviewing court is
convinced it would have decided the case differently.’” Id. (quoting Equal Employment Opportunity
Comm’n v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 833 (6th Cir. 1996)). “[W]here there are two
permissible ways to view the evidence, the district court’s decision to view the evidence in one of
those ways as opposed to the other cannot be clear error.” Id. (citing Yenkin-Majestic (citing
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985))). We review the district court’s
conclusions of law de novo. Id. (citing Burzynski, 264 F.3d at 616).
B.     Analysis
         The ADA prohibits “covered entities,” like Baptist, from discriminating against “a qualified
individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a).
Unlawful discrimination includes firing an individual because of his disability. Id. § 12112(a).
“The term ‘qualified individual with a disability’ means an individual with a disability who, with
or without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” Id. § 12111(8). Under the ADA, a “disability”
means either (1) a physical or mental impairment that substantially limits one or more of the major
life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having
such an impairment. 42 U.S.C. § 12102(2).
       According to the ADA regulations, a major life activity means “functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                                    Page 8


working.” 29 C.F.R. § 1630.2(i). “When the major life activity under consideration is that of
working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs” or “‘a broad range of jobs in various classes.’” Sutton
v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). “The
inability to perform a single, particular job does not constitute a substantial limitation in the major
life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).
        1.       Moorer’s disability status under the “regarded as” definition
       The first issue is whether the district court correctly found Moorer to be disabled within the
meaning of the ADA. The district court    found that Baptist “regarded” Moorer as having a physical
or mental impairment – alcoholism4 – that substantially limited his ability to work, and, therefore,
Moorer satisfied the third definition of disability set forth at 42 U.S.C. § 12102(2). According to
the Supreme Court:
        There are two apparent ways in which individuals may fall within this statutory
        definition: (1) a covered entity mistakenly believes that a person has a physical
        impairment that substantially limits one or more major life activities, or (2) a covered
        entity mistakenly believes that an actual, nonlimiting impairment substantially limits
        one or more major life activities. In both cases, it is necessary that a covered entity
        entertain misperceptions about the individual – it must believe either that one has a
        substantially limiting impairment that one does not have or that one has a
        substantially limiting impairment when, in fact, the impairment is not so limiting.
Sutton, 527 U.S. at 489. The district court reached its conclusion by breaking its analysis into two
parts: first, whether Baptist regarded Moorer as having a physical or mental impairment, and
second, whether Baptist mistakenly regarded that impairment as substantially limiting the major life
activity of working, when it was not. Each part of the analysis is discussed below.
        The district court did not commit clear error when it concluded that Baptist believed Moorer
had the physical or mental impairment of alcoholism. After perceiving what she believed to be
alcohol on Moorer’s breath on July 22, 1997, Hill, Moorer’s supervisor, told her superiors via an
August 6, 1997 e-mail that Moore’s apparent intoxication was a “good indicator of [a] broader,
lon[g] term issue,” and she recommended a minimum 3-4 weeks of leave for him. After obtaining
her superiors’ approval, Hill demanded that Moorer undertake a fitness for duty examination or else
face immediate termination. Later, Hill told Moorer that she thought he was an alcoholic and also
called Moorer’s wife and told her that alcoholism is an incurable, deadly disease and that Moorer
would never be cured. When Hill fired Moorer, she told him that his work-related problems were
caused by his disease of alcoholism.
         This evidence was more than sufficient for the district court to conclude that Baptist, via Hill,
perceived Moorer to be an alcoholic as early as July 22, 1997. It was within the province of the
district court, as the finder of fact, to reject Hill’s explanation that she relied solely on Moorer’s
poor work performance in requiring him to have treatment and then recommending his termination
on the ground that her explanation was “lacking in credibility” and of “no value.”
        The more significant issue is whether Baptist perceived Moorer’s alcoholism as a substantial
limitation on his ability to work, which, as noted above, requires a showing that Baptist perceived
him as unable to work in a broad class of jobs or a broad range of jobs in various classes. Baptist
argues that the district court erred in finding that Baptist regarded Moorer as significantly limited

        4
          “There is no question that alcoholism is an impairment … under the ADA.” Bailey v. Georgia-Pacific Corp.,
306 F.3d 1162, 1167 (1st Cir. 2002) (collecting cases).
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                          Page 9


in his ability to perform even his particular job as a hospital administrator, let alone, his ability to
perform a broad class or range of jobs. We disagree.
         There was substantial evidence that Hill linked her perception of Moorer’s alcoholism to his
inability to perform his job as a hospital administrator. The August 19, 1997 memo that Hill sent
to Moorer referred to his “failure to meet the expectations normally associated with the hospital
administrative responsibilities in BHCC.” Hill further stated, “While I find that you have made
efforts to correct the noted deficiencies and have made some improvements in some areas, there is
a lack of substantial progress toward elimination of root causes….” (emphasis added). Hill then
listed several examples of these deficiencies and added, “In an effort to utilize all available resources
to evaluate these performance issues, I have made a management referral to Concern, EAP, for
fitness assessment and any resulting plan of action.” The implication of Hill’s memo was that she
believed that a “root cause[]” of Moorer’s performance problems might be uncovered through his
referral to CONCERN for his perceived alcohol problem. Consistently, Moorer testified that, at the
time Hill informed him of the termination, she told him that she believed his performance problems
were caused by his “disease.”
         Based on this evidence, the court did not clearly err in finding that “Hill acted in accord with
her belief that Plaintiff’s deficiencies were related to his alcoholism.” Because Hill came to the
conclusion that Moorer could not perform the duties of a hospital administrator, and because Hill
linked his poor performance to his alcoholism, it was reasonable for the district court to conclude
that Hill regarded Moorer as having an impairment that substantially limited his ability to perform
his job.
        Still, it does not follow from these findings that Moorer was entitled to a favorable judgment
on his ADA claim. “[T]o be regarded as substantially limited in the major life activity of working,
one must be regarded as precluded from more than a particular job.” Murphy v. United Parcel Serv.,
527 U.S. 516, 523 (1999). Moorer was required to show that Baptist regarded him as unable to work
in a broad class of jobs or a broad range of jobs in various classes. This is no easy task.
         In Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001), this Court recognized that
“[p]roving that an employee is regarded as disabled in the major life activity of working takes a
plaintiff to the farthest reaches of the ADA” and that this question is “embedded almost entirely in
the employer’s subjective state of mind.” Id. at 709. This task is “extraordinarily difficult” because
“it is safe to assume employers do not regularly consider the panoply of other jobs their employees
could perform, and certainly do not often create direct evidence of such considerations.” Id. The
Court therefore held that “where there is substantial evidence that an individual’s medical status
played a significant role in an employer’s decision to fire that individual, combined with evidence
that the employer concocted a pretextual justification for that firing, the need for more extensive
factual inquiry” – i.e., by a trier of fact – “into whether the employer engaged in unlawful
discrimination is especially acute.” Id. Therefore,“evidence that the company created a pretextual
reason for [the plaintiff’s] firing may tend to prove that it regarded [the plaintiff] as a disabled
employee.” Id. at 708. As discussed below, application of the Ross principles to the facts of this
case tends to prove that Baptist regarded Moorer as disabled.
                a.      Role of alcoholism in Moorer’s discharge
        As noted above, there is substantial evidence that Moorer’s medical status played a
significant role in Baptist’s decision to fire him. Prior to Hill’s perception of alcohol on Moorer’s
breath, and her ensuing suspicion that he was an alcoholic, Moorer’s termination was not imminent.
Once Hill regarded Moorer as an alcoholic, however, she recommended, prior to any medical
evaluation of Moorer, that he take an extended leave of absence for rehabilitation of his alcoholism.
During that leave Hill purportedly uncovered additional performance deficiencies that led to
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                       Page 10


Moorer’s termination while he was still on leave. Hill told Moorer that his alcoholism was the cause
of his performance problems. Accordingly, there is substantial evidence that Moorer’s medical
status played a significant role in Baptist’s decision to fire him. Ross, 237 F.3d at 709.
               b.      Pretextual justifications for Moorer’s discharge
         The district court found substantial evidence in the record that Baptist concocted pretextual
justifications for Moorer’s termination. First, Hill testified that Moorer’s termination was based,
in part, on a written report from the state fire marshal’s office purportedly stating that there was a
fire hazard at BMH-Tipton. Hill claims that she reviewed this report prior to Moorer’s termination.
It was stipulated at trial, however, that following a search, the fire marshal’s office “was unable to
find any record that such an inspection occurred.” The only two written reports of fire safety
inspections in the record indicate that the fire marshal conducted inspections on September 30, 1997
and December 4, 1997, after Moorer’s termination. Baptist acknowledges the lack of a written
report that pre-dates Moorer’s termination, but explains that the record is replete with evidence that
the fire hazards themselves existed prior to Moorer’ termination. This explanation, however, does
not explain away Hill’s testimony that she relied on a written report of fire hazards.
        Second, Hill testified that Moorer’s termination was based, in part, on inspections of the
BMH-Tipton facility conducted by the Tennessee Health Facilities Commission prior to the date of
Moorer’s termination, September 18, 1997. She claimed that “[a]uthorized representatives” of the
Commission reported numerous issues concerning deficiencies at the facility. Hill testified that
these reports were in writing and “were on the corner of” Moorer’s desk and that she reviewed them
prior to terminating him. Although the Commission did conduct a survey of BMH-Tipton, the
survey was not conducted until September 30, 1997, after Moorer’s termination.
        Baptist has no persuasive response to this inconsistency, other than to point out that Hill had
spoken with inspectors prior to Moorer’s termination. This argument, however, does not explain
away Hill’s testimony that Moorer’s termination was based in part on written reports from the
Commission, reports she could not have received until after the termination decision was made.
Baptist also argues that “Hill unequivocally testified at trial that she spoke with surveyors from the
Commission about deficiencies at the hospital prior to September 18[, 1997].” Baptist’s Reply Br.
at 21 (citing J.A. 594). However, the cited portion of the record does not support this assertion.
Indeed, Hill admitted at trial that the survey itself was conducted on September 30, 1997, twelve
days after Moorer’s termination. (J.A. 585-87.) Thus, on this record, it is unclear how Hill could
have had conversations with surveyors prior to Moorer’s termination.
         Third, Hill claimed that her termination recommendation was based, in part, on the
August 21, 1997 letter from Dr. Cannon. However, Moorer’s name is not mentioned in the body
of the letter, and Dr. Cannon testified that the letter was not intended to be a criticism of Moorer’s
local administration of BMH-Tipton, but was “directed at the system at large.” Dr. Cannon further
testified that Hill never spoke to him about this letter prior to the date of Moorer’s discharge.
        Baptist counters that the issues raised in Dr. Cannon’s letter were not necessarily corporate
issues, but involved the condition and maintenance of the hospital, issues that were Moorer’s
responsibilities. Baptist adds that Hill and others had a meeting with staff members of BMH-Tipton,
including Dr. Cannon, a few days after receiving Dr. Cannon’s August 21, 1997 letter. It was within
the province of the district court, however, as the finder of fact, to credit Dr. Cannon’s testimony
over Baptist’s explanation.
       In addition to disputing several of the specific grounds Hill cited for his termination, Moorer
argues that he was selected for termination before Hill discovered the depth of Moorer’s
performance problems while he was on medical leave. Moorer’s wife testified that after she told Joe
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                           Page 11


Swaim, a member of the BMH-Tipton board of directors, that Moorer’s bosses had just visited him
at the Talbot Recovery Center and fired him, Swaim responded, “I know all about it. They told us
all about it before they ever sent him.” Swaim denied making this statement and stated that he was
never told in advance that Moorer was going to be fired. Baptist explains that the statement Mrs.
Moorer attributed to Swaim “could have referred to the fact that he knew there was a problem and
that Moorer would be away from the facility, rather than that Moorer would be terminated.”
Baptist’s Reply Br. at 23 n.20. Although Baptist’s characterization of Swain’s statement is plausible,
it is not the only reasonable interpretation. The district court, as factfinder, was entitled to infer from
this statement that Swaim knew that Moorer would be terminated prior to Moorer’s admission to
the Talbot Recovery Center. This inference tends to undermine Baptist’s assertion that subsequently
discovered problems with Moorer’s performance led to his termination.
                c.      Regarded as unable to perform a class of jobs or a broad range of jobs
        The above-described evidence, which suggests that Moorer’s alcoholism played a significant
role in his discharge and that several of Baptist’s reasons for terminating Moorer were pretextual,
tended to prove that Baptist regarded him as disabled, Ross, 237 F.3d at 708; however, it was not
sufficient in itself to prove that Baptist regarded him as substantially limited in his ability to work.
Rather, Moorer still needed to proffer evidence showing that Baptist regarded him as unable to
perform a broad range or class of jobs, meaning that Baptist perceived him as unable to perform the
same general type of work in the same geographic area. See Henderson v. Ardco, Inc., 247 F.3d
645, 652, 653 n.5, 654 (6th Cir. 2001) (noting in ADA “regarded as” case that it would be plaintiff’s
burden at trial to prove that she was perceived as “substantially impaired” in her ability to perform
other employment suitable to her age, education and experience and available in her geographic
area); Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 254 (6th Cir. 2000) (looking to the EEOC
regulations for guidance on the meaning of a substantial limitation on the ability to perform either
a class of jobs or a broad range of jobs in various classes, and noting that a court may consider “‘the
number and types of jobs utilizing similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified because of the impairment (class
of jobs)’”) (emphasis omitted; quoting 29 C.F.R. § 1630.2(j)(3)(ii)(B)).
        The Henderson case illustrates the type of evidence Moorer needed to submit. In Henderson,
a welder on an assembly line injured her back and was restricted from stooping or bending and from
lifting 25 pounds frequently or 40 pounds infrequently. Henderson, 247 F.3d at 647. Company
policy prohibited an employee from returning to work unless he or she was “100% healed.” Id. The
company’s plant manager testified that there would not be one job at the plant that the plaintiff’s
medical restrictions would not “bump into.” Id. at 651.
        This Court found that one reasonable reading of the plant manager’s view “is that he
considers someone with physical restrictions unable to ‘make it’ doing factory work, even if it is
within the technical requirements of the worker’s restrictions, and/or that he considers it too risky
or problematic to employ workers with whom he has to be cautious not to push much beyond the
essential functions of their job.” Id. The Court then held that there was a genuine issue of material
fact as to whether the employer perceived the plaintiff to be substantially limited in her ability to
perform a larger class of jobs because the “100% healed rule” effectively treated her as “incapable
of work in a manufacturing operation.” Id. at 651-52. In other words, the employer’s perception
about the plaintiff’s ability to perform any work at that plant also constituted competent evidence
of the employer’s perception about the plaintiff’s ability to perform the same broad class of work
anywhere else. See id. at 654 (“Plaintiff has brought forward evidence that the defendant perceived
there was no job for her at the Ardco plant, and this gives an indication of the employer’s perception
about her suitability for a class of relevantly similar employment.”).
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                                    Page 12


        We hold that, like the plaintiff in Henderson, Moorer presented evidence showing that
Baptist perceived him as incapable of performing a broad class of work by virtue of Baptist’s
perception of Moorer’s inability to perform managerial work for Baptist. The district court found
that Moorer’s  job duties were diverse, requiring general skills that could be used in a broad range
of fields.5 The court noted that the “skills required of Plaintiff as a hospital administrator are easily
identified as necessary for most high-level management positions,” regardless of field. According
to the court, because “Hill believed that Plaintiff’s alcoholism substantially limited his ability to
work at Baptist, she must also have recognized that such an impairment would have precluded him
from performing a broad class of jobs.”
         Consistent with Henderson, the district court essentially found that Baptist perceived Moorer
as unable to perform any job that would be appropriate for him given his training, knowledge, skills
and abilities. The fact that Baptist believed that Moorer’s alcoholism made him unable to perform
his hospital administrator job, which required a broad range of managerial skills, permits the
reasonable inference that Baptist believed that Moorer’s alcoholism rendered him incapable of
performing a substantial number of managerial jobs. This inference is buttressed by Hill’s apparent
belief, which she developed before she had any substantiation of Moorer’s alcoholism, that Moorer
had a drinking problem that in the short-term would preclude him from working at all for four weeks
and that in the long-term would kill him. Indeed, Hill’s belief that Moorer’s incurable alcoholism
would inevitably result in his death permitted the inference that Hill regarded Moorer as
substantially limited in his ability to perform any life activity at all, let alone the major life activity
of working. Cf. Heyman v. Queens Village Comm. for Mental Health for Jamaica Comm.
Adolescent Program, Inc., 198 F.3d 68, 73 (2d Cir. 1999) (reversing grant of summary judgment for
employer because a reasonable trier of fact could conclude that defendants regarded the plaintiff as
suffering from a physical impairment (lymphoma) that significantly restricted his ability to work;
concluding that jury might find that defendants’ experience of having allowed another employee
with lymphoma to continue working and his resulting inability to perform all of his duties led
defendants to conclude that the plaintiff, afflicted with the same disease, would likewise be unable
to function fully and soon would become a workplace liability). Accordingly, we hold that the
district court did not commit clear error when it found that Baptist regarded Moorer as disabled
when it terminated him.
        2.       Causal connection between Moorer’s perceived disability and his termination
        We further hold that the district court did not clearly err in finding that Moorer satisfied his
ultimate burden of proving that Baptist terminated Moorer “because of” his perceived disability.
42 U.S.C. § 12112(a). As noted above, there was significant evidence that at least some of the
reasons for Moorer’s termination were pretextual. See Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1185-86 (6th Cir. 1996) (holding that the plaintiff’s burden in an ADA case is to prove that
the employer’s explanation is a pretext for unlawful discrimination). There also was significant
evidence that Moorer’s alcoholism, which Baptist erroneously perceived to be a substantially
limiting impairment, actually motivated his termination.
        We disagree with Baptist’s contention that the district court failed to require Moorer to
satisfy his burden of showing pretext. The district court made its pretext findings primarily in its
discussion of whether Baptist regarded Moorer as disabled, which, in light of Ross, was proper. The


        5
           The court found that “Plaintiff’s general responsibilities at Baptist included planning hospital affairs,
coordinating reporting requirements between different departments, directing human resource programs, serving as a
liaison between staff and management, ensuring regulatory compliance, coordinating the budget process, facilitating a
positive work environment, ensuring the proper level and mix of services, coordinating risk management, creating
continuing education programs, and spearheading cost-saving techniques.”
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                                    Page 13


district court then relied on those findings to support its conclusion that Moorer was fired because
of his disability. For these reasons, we affirm the district court’s finding of disability discrimination.
                                                   III.
                                           Compensatory Damages
A.       Standard of Review
        A trial court’s finding of fact on the issue of compensatory damages “is not reversible error
‘unless it manifests plain injustice, or is so grossly excessive as to be clearly erroneous.’” Turic
v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996) (quoting Meyers v. City of
Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994); Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985)).
B.       Analysis
       Baptist requests a remittitur of the district court’s award of $250,000 in emotional distress
damages, claiming that the award was excessive and disproportionate to the injury that Moorer
allegedly sustained as a result of his unlawful termination. We hold that the award was not so
grossly excessive as to be clearly erroneous.
        [D]amages for mental and emotional distress will not be presumed, and must be proven by
‘competent evidence.’” Turic, supra, 85 F.3d at 1215 (quoting Carey v. Piphus, 435 U.S. 247, 263-
64 & n. 20 (1978); citing Rodgers v. Fisher Body Div., Gen. Motors Corp., 739 F.2d 1102 (6th Cir.
1984)).6 However, emotional injury may be proved without medical support. Id. (citing Moody v.
Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 210 (6th Cir. 1990); Williams v. Trans World
Airlines, 660 F.2d 1267, 1273 (8th Cir. 1981)). “A plaintiff’s own testimony, along with the
circumstances of a particular case, can suffice to sustain the plaintiff’s burden in this regard.” Id.
(citing Meyers, supra, 14 F.3d at 1119).
        Moorer’s own testimony, combined with that of his wife and his treating physician,
constituted competent evidence of Moorer’s severe emotional distress stemming from his
termination. Moorer testified that his termination had a “devastating” impact on his life and made
him “depressed.” To deal with the psychic blow, Moorer sought treatment from a clinical
psychologist, Dr. Dennis Wilson. Moorer’s wife testified that he has been suffering from
depression, he isolates himself, and he has insomnia. Dr. Wilson testified that Moorer’s termination
was devastating, causing feelings of betrayal, anger and depression, as well as a significant loss of
self-esteem because Moorer’s self-worth “was completely tied up in his professional life.” Dr.
Wilson further testified that Moorer’s marriage suffered, his anxiety increased, and he was
experiencing “excessive thoughts.” The district court found that Moorer’s termination for
alcoholism was humiliating because it became public knowledge in his small community.
        In addition to this ample evidence of severe emotional distress, we also note that the
compensatory damages award was less than half of Moorer’s award of economic damages. In light
of the extremely deferential standard of review, there is no basis to hold that the district court’s
award of $250,000 to Moorer for emotional distress was grossly excessive. Cf. Lilley v. BTM Corp.,
958 F.2d 746, 754 (6th Cir. 1992) (holding that $350,000 mental anguish award for age
discrimination was within the realm of other verdicts that have been upheld in similar cases)
(citations omitted); Miller v. Alldata Corp., 14 Fed. Appx. 457, 467 (6th Cir. July 6, 2001)

        6
          Although Turic was a Title VII case, we assume that the same standard applies to emotional distress damages
under the ADA because the statutory authorization for compensatory damages under the ADA and Title VII derives from
the same source. See 42 U.S.C. § 1981a(a).
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                         Page 14


(affirming district court’s denial of motion for remittitur of $300,000 award for emotional distress
where the plaintiff recovered only $16,000 in economic damages for gender discrimination claim).
Accordingly, we affirm the award.
                                               IV.
                                            FMLA Claim
A.     Standard of Review
        This Court reviews de novo a district court’s decision to grant summary judgment. Cockrel
v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment must be
granted if the pleadings and evidence “show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). A dispute
over a material fact is only a “genuine issue” if a reasonable jury could find for the nonmoving party
on that issue. Cockrel, 270 F.3d at 1048 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In reviewing the district court's grant of summary judgment, this Court must view all the
facts and the inferences drawn therefrom in the light most favorable to the nonmoving party. Id.
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
B.     Analysis
        The FMLA entitles an eligible employee to take up 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. § 2612(a)(1)(D). “ The term
‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that
involves… inpatient care in a hospital, hospice, or residential medical care facility.” Id.
§ 2611(11)(A). An eligible employee who takes FMLA leave is entitled, on return from such leave,
“to be restored by the employer to the position of employment held by the employee when the leave
commenced” or “to be restored to an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.” Id. § 2614(a)(1). In addition to providing
substantive rights to leave and reinstatement, the FMLA makes it unlawful for an employer “to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under”
the FMLA. Id. § 2615(a)(1). The FMLA also prohibits retaliation and discrimination against
employees for opposing unlawful practices under the FMLA or for filing an FMLA charge or
participating in a proceeding or inquiry related to the FMLA. Id. § 2615(a)(2), (b).
        Count VI of Moorer’s complaint alleges that Baptist denied him the substantive right to
return to the position that he had held before checking into the Talbott Recovery Center, in violation
of the FMLA. As this Court has explained:
       If an employer interferes with the FMLA-created right to medical leave or to
       reinstatement following the leave, a violation has occurred. King v. Preferred
       Technical Group, 166 F.3d 887, 891 (7th Cir.1999). The issue is simply whether the
       employer provided its employee the entitlements set forth in the FMLA – for
       example, a twelve-week leave or reinstatement after taking a medical leave. Because
       the issue is the right to an entitlement, the employee is due the benefit if the statutory
       requirements are satisfied, regardless of the intent of the employer. Hodgens v.
       General Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998).
Arban v. West Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003). Moorer’s initial burden is to
“‘establish, by a preponderance of the evidence, that he is entitled to the benefit he claims.’” Id.
(quoting Rice v. Sunrise Express, 209 F.3d 1008, 1018 (7th Cir.2000)).
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                         Page 15


        1.      Whether Moorer was entitled to reinstatement
        Baptist has not disputed that Moorer was an “eligible employee” under the FMLA.
Therefore, we assume that Moorer worked for Baptist for at least 12 months prior to his leave and
had worked at least 1,250 hours during the previous 12 months. 29 U.S.C. § 2611(2) (defining
“eligible employee”). Further, Baptist conceded for purposes of summary judgment that Moorer had
a serious health condition and that his leave for an in-patient stay at the Talbott Recovery Center was
an FMLA qualifying reason. See id. § 2611(11) (defining “serious health condition” to include a
physical or mental condition that involves inpatient care at a hospital or residential medical facility).
        In a single sentence in a footnote of its summary judgment motion, Baptist further asserted
that Moorer never requested or discussed FMLA leave with Baptist. To the extent this footnote was
an argument that Moorer failed to provide Baptist with sufficient notice of FMLA leave, we find the
argument waived on appeal because of the perfunctory manner in which the argument was presented
below. See Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1002 (6th Cir. 1994) (holding
that an observation in a footnote in a brief filed in the district court was insufficient to preserve
argument concerning that issue on appeal). In any event, the argument is meritless for the reasons
discussed below.
        Because Moorer’s leave was for a serious health condition, the FMLA required him to “make
a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the
employer, subject to the approval of the health care provider of” Moorer. 29 U.S.C.
§ 2612(e)(2)(A). Baptist has not argued that Moorer failed to comply with this requirement, nor can
it. The evidence shows that Baptist fully anticipated and approved Moorer’s lengthy treatment at
the Talbott Recovery Center.
        Moorer also was required to provide Baptist with not less than 30 days’ notice, before the
date the leave was to begin, of his intention to take leave for a serious health condition, except that
if the date of the treatment required leave to begin in less than 30 days, Moorer was required to
provide such notice as was “practicable.” Id. § 2612(e)(2)(B). The chronology of events in this case
suggests that there were far less than 30 days between the date that Moorer knew he would have to
take an extended medical leave and the date he actually departed for that leave. Hill’s August 6,
1997 e-mail suggests that she anticipated that Moorer would need to take at least a three to four
week leave in order to treat his alcoholism. Hill met with Moorer on August 19, 1997 and presented
Moorer with a letter outlining his purported performance deficiencies, notifying Moorer that Hill
had referred him to the employee assistance program (“EAP”) for a “fitness assessment and any
resulting plan of action,” and threatening Moorer with termination if he failed to meet with the EAP
counselor on August 20, 1997. Hill also assured Moorer that he would have a job when he returned
from alcohol rehabilitation, further indicating that Hill anticipated Moorer having to take an
extended medical leave. Moorer met with the counselor on August 20, 1997, who recommended
treatment at the Talbott Recovery Center. On August 22, 1997, Moorer flew to the recovery center
and stayed for five weeks of treatment. These facts strongly suggest that Moorer had only two days’
notice of his extended medical leave, and, therefore, he was required to provide Baptist with
“practicable” notice only.
        The facts clearly show that Moorer provided Baptist with “practicable” notice of his
impending FMLA leave. The FMLA does not require an employee to mention the FMLA by name
when notifying an employer of FMLA leave. Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir.
1998). Rather, “‘[t]he critical question is whether the information imparted to the employer is
sufficient to reasonably apprise it of the employee’s request to take time off for a serious health
condition.’” Id. (quoting Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995)).
Here, Baptist obviously knew of Moorer’s anticipated leave to treat his serious health condition of
alcoholism and that Moorer would be on leave for weeks because Baptist demanded that Moorer
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                       Page 16


participate in the employee assistance program and follow through on the recommended course of
treatment. Baptist can hardly complain about lack of notice of Moorer’s leave.
       2.      Whether Moorer was denied reinstatement for reasons unrelated to his taking
               of FMLA leave
        Although Moorer had a substantive right to reinstatement upon the completion of his
treatment at the recovery center, that right was not absolute. “‘[A]n employee who requests FMLA
leave would have no greater protection against his or her employment being terminated for reasons
not related to his or her FMLA request than he or she did before submitting that request.’” Arban,
345 F.3d at 401 (quoting Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir.1998)).
“An employee lawfully may be dismissed, preventing him from exercising his statutory rights to
FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the
employee’s request for or taking of FMLA leave.” Id. (citing Gunnell, supra). Thus, “‘if the
employer claims that the employee would have been discharged ... the employee, in order to
establish the entitlement protected by § 2614(a)(1), must, in the course of establishing the right,
convince the trier of fact that the contrary evidence submitted by the employer is insufficient and
that the employee would not have been discharged ... if he had not taken FMLA leave.’” Id.
(quoting Rice, supra).
          We hold that there is a genuine issue of material fact as to whether Moorer’s dismissal would
have occurred regardless of his taking of FMLA leave. The decision in Arban, supra, is instructive.
There, the employer, West, presented considerable evidence that the decision to terminate the
plaintiff, Arban, had been made before Arban went on medical leave, but that his actual termination
had been deferred until after the holidays. Arban, 345 F.3d at 401. The Court observed that, at trial,
“Arban cast doubt upon both the timing of and the reasons for the decision to terminate him.” Id.
The Court quoted a Seventh Circuit case which held that “‘the timing of this decision could lead a
fact finder to infer that the employee would not have been fired absent her taking of leave (if, for
example, a supervisor who had been aware of problems with an employee did not decide to fire the
employee until she took leave, and the supervisor based the firing on the incidents of which the
employer had already been aware).” Id. at 402 (quoting Kohls v. Beverly Enters. Wis., Inc., 259 F.3d
799, 806 (7th Cir. 2001)). Because the evidence in Arban permitted “differing inferences” about
the timing and reasons for his termination, the Court held that “sufficient evidence was presented
at trial for the jury to conclude that West denied Arban his substantive right to reinstatement.” Id.
       As in Arban, there was significant evidence in the record casting doubt upon the reasons for
Baptist’s decision to terminate Moorer. Indeed, this evidence prompted the district court to deny
summary judgment in favor of Baptist on Moorer’s ADA and ADEA claims. This evidence
included the following:
!      Evidence that Baptist perceived and considered Moorer’s alcoholism well before
       Baptist claims it knew about it. Even though Moorer had not yet been medically
       evaluated, on August 6, 1997, Hill sent an e-mail to Robbins and Braughton
       indicating that Moore’s apparent intoxication during a meeting on July 22, 1997 was
       a “good indicator of [a] broader, lon[g] term issue” and recommending a minimum
       3-4 weeks of leave for him. The district court remarked, “[I]t defies basic logic that
       a reasonable and rational person could determine that a man needs to be placed on
       leave in a rehabilitation program for at least 3-4 weeks based upon a single
       observation of a single incident which, at worst, would only indicate that Moorer had
       been drinking only on that occasion.”
!      Evidence that Hill had dissembled when she claimed that her recommendation to
       terminate Moorer was based in part on a State of Tennessee Heath Care Facilities
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                     Page 17


       Commission Report and on an alleged failure of the Tipton hospital to pass a State
       of Tennessee Fire Marshal’s inspection. Evidence in the summary judgment record
       indicated that the State of Tennessee had not conducted these inspections prior to
       Moorer’s termination. The district court remarked, “This apparent misrepresentation
       by Hill… raises the most serious questions in the mind of the court.”
!      Evidence that the performance-related reasons for Moorer’s discharge were
       undermined by the affidavit of Dr. Cannon, who stated that his complaints
       concerning management were not directed at Moorer.
!      Evidence that the hospitals had “superb profits” during Moorer’s tenure as
       administrator, as opposed to previous years.
         The record also shows that Baptist was aware of many of Moorer’s alleged performance
deficiencies prior to his FMLA leave, thereby casting doubt on the timing of the purported reasons
for his termination. The January 26, 1997 memorandum from Moorer’s former supervisor discussed
many of the same performance deficiencies Baptist now cites to justify his termination, including
customer complaints, FTE management, physician contract issues, and staff communication. Yet
it is undisputed that Baptist did not intend to immediately fire Moorer for these deficiencies until
it was anticipated that he might take a leave to treat his alcoholism. The fact that Hill based
Moorer’s termination on these deficiencies, among others, but did not decide to effectuate the
termination until Moorer took leave, could lead a fact finder to infer that Moorer would not have
been fired absent his actual taking of that FMLA leave. This fact, combined with the fact that
Moorer had called several of the termination reasons into question, shows that there was sufficient
evidence presented for the factfinder to conclude that Baptist denied Moorer his substantive right
to reinstatement. For these reasons, we hold that the district court erred in granting summary
judgment for Baptist on Moorer’s FMLA claim.
        We do not believe that Moorer’s claim that he was denied reinstatement because he took
FMLA leave is inconsistent with the district court’s finding after trial that Baptist terminated him
because of a perceived disability, in violation of the ADA. There is nothing remarkable about an
employer wrongfully discharging an employee on grounds that are illegal under more than one
statute. For example, the termination of a 70 year-old woman could violate both Title VII of the
Civil Rights Act of 1964 and the ADEA. An ageist employer who terminates a 64 year-old
employee might violate both the ADEA and the Employee Retirement Income Security Act of 1974
(“ERISA”). E.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 613 (1993) (“Nor do we rule out the
possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was
motivated both by the employee's age and by his pension status.”). Likewise, discharging a disabled
employee for complaining about not being provided overtime pay, unlike his similarly-situated, non-
disabled co-workers, could violate both the Fair Labor Standards Act and the ADA. And, in this
case, a fact finder would be permitted to infer that Baptist harbored a disability animus toward
Moorer, but was unwilling to act on that animus (by firing him in violation of the ADA) until he was
on FMLA leave. By terminating Moorer in this manner, Baptist exposed itself to liability under both
statutes, and therefore Moorer was entitled to present both theories of liability to the fact finder.
                                               V.
                                            Conclusion
        For all the foregoing reasons, we AFFIRM the judgment in favor of Moorer on his ADA
claim, but REVERSE the district court’s dismissal of his FMLA claim.
Nos. 03-5855/5965 Moorer v. Baptist Memorial Health Care System, et al.                    Page 18


                   ________________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                   ________________________________________________
        BOGGS, Chief Judge, concurring in part and dissenting in part. I concur in Judge Clay’s
well-reasoned opinion in Parts II and III, concerning Moorer’s claim under the Americans with
Disabilities Act. However, I dissent from Part IV of the opinion, overturning Judge Donald’s
summary judgment on Moorer’s claim under the Family and Medical Leave Act. My reasoning is
simple: if, as the district court found and our court affirms, Moorer was fired because of illegal
discrimination based on the perception that he was disabled, how can it also be that he was fired
because of retaliation against him for taking FMLA leave? In fact, there is not a shred of evidence
that his firing had anything to do with his taking of FMLA leave. The FMLA leave was directed
by his employer, and Moorer had no objection to the taking of the leave in itself. In fact, he seems
to have believed that by taking the leave and other actions under the Employee Assistance Program,
he would be taking steps to retain his job.
        The majority’s reasoning on this point relies on comparison to cases such as Arban where
the reasons given for a firing were pretextual, and no other relevant events were occurring, other
than the taking of FMLA leave. Under such circumstances, an inference sufficient to defeat
summary judgment might be drawn, based on events “in connection with” the FMLA leave.
        This is not at all the situation in the instant case. The only “connection” with the FMLA
leave is that Moorer was on FMLA leave when he was improperly fired for other reasons. Moorer
has never alleged any causal connection between his termination and his taking FMLA leave, and
as the district court noted, has presented no evidence of such a connection. Thus, no reasonable
finder of fact could infer from the evidence before the district court that Moorer’s termination was
in any way related to his taking FMLA leave.
       As an analogy, consider the situation of an employee who takes FMLA leave for clearly
legitimate medical reasons, without any complaint or concern by anyone. While on that leave, the
employee’s supervisor is replaced by a person with a long history of racism, who proceeds to fire
the employee on pretextual grounds. Under those circumstances, the employee would have a
meritorious Title VII race discrimination claim, but would not have an FMLA claim. The record
before us supports an equivalent determination here, and I therefore respectfully dissent from the
panel’s reinstatement of the FMLA claim.
