           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0165P (6th Cir.)
                    File Name: 00a0165p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                    ;
                                     
 PHILIP R. PLANT,
                                     
            Plaintiff-Appellant,
                                     
                                     
                                        No. 99-3445
             v.
                                     
                                      >
 MORTON INTERNATIONAL,               
                                     
            Defendant-Appellee. 
 INC.,

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




    *
     The Honorable John G. Heyburn II, United States District Judge for
the Western District of Kentucky, sitting by designation.

                                  1
2    Plant v. Morton Int’l, Inc.                 No. 99-3445

                    _________________
                         COUNSEL
ARGUED:          Charles A. Kennedy, KENNEDY,
CICCONETTI & KNOWLTON, Wooster, Ohio, for
Appellant. Timothy L. Zix, BATTLE & MILLER, Cleveland,
Ohio, for Appellee. ON BRIEF: Charles A. Kennedy,
KENNEDY, CICCONETTI & KNOWLTON, Wooster, Ohio,
for Appellant. Timothy L. Zix, Colleen P. Battle, BATTLE
& MILLER, Cleveland, Ohio, for Appellee.
                    _________________
                        OPINION
                    _________________
   KAREN NELSON MOORE, Circuit Judge. Philip Plant
appeals the district court’s grant of summary judgment to his
former employer Morton International, Inc. (“Morton”) on his
Family and Medical Leave Act (FMLA), Americans with
Disabilities Act (ADA), and state-law discrimination and
wrongful termination claims. The district court found that,
because Plant could not have returned to work within the
twelve weeks allotted by the FMLA, he could not make out a
successful claim under that statute. Concluding that Morton
failed to give sufficient notice to Plant that his FMLA leave
time had begun to run, we disagree with the district court and
hold that Plant might have been entitled to an additional
twelve weeks of leave under the FMLA. However, we agree
with the district court that Plant has come forward with
insufficient evidence to allow a reasonable jury to conclude
that he was disabled within the meaning of the relevant
statutes during the time period in question, and therefore that
Morton was entitled to summary judgment on the ADA and
state-law claims. For these reasons, we AFFIRM in part and
REVERSE in part the judgment of the district court, and we
REMAND for further proceedings.
No. 99-3445                  Plant v. Morton Int’l, Inc.    3

                    I. BACKGROUND
  Plaintiff-appellant Philip R. Plant began working for
defendant-appellee Morton International, Inc. as an applied
color systems operator in the Orrville, Ohio plant in 1989. He
was an hourly employee whose duties mainly involved
generating paint color matches. In February of 1995, Plant
was promoted to the position of intermix coordinator, which
was a salaried position involving additional responsibilities
such as research and development and customer service,
including travel to remote customer sites. That same month,
Plant was involved in a motor vehicle accident while working
at a site in North Carolina. Plant was taken to a local
hospital, diagnosed with contusions and strain, and released
the same day. His diagnosis has never changed.
  Plant followed up with treatment from Dr. Owen W. Logee,
M.D., of Wooster, Ohio. Except for being called in to work
sporadically when he was especially needed, Plant was absent
from work until September of 1995, when Dr. Logee released
him to return with the restriction that he should work only
four-hour days and avoid lifting more than fifteen pounds and
bending or stooping repeatedly. Plant was eventually released
to work six-hour days and then eight-hour days. During his
entire absence from work, Plant continued to receive his full
salary.
  To accommodate Plant’s medical condition, Morton
assigned him to data entry duties upon his return. Plant
claimed that he was no longer able to drive to customer sites,
as he had previously done as intermix coordinator, due to the
pain medication he had to take; he did, however, maintain
some phone contact with customers. Furthermore, Plant
could not fully perform the duties of his previous position as
intermix coordinator without working eight-hour days.
Eventually, Plant began to find that his back condition was
aggravated by sitting for long periods at his data entry job.
Shortly thereafter, Plant was switched to the position of lab
technician, which required mostly standing, with the
possibility of sitting to take breaks. The job also required
4    Plant v. Morton Int’l, Inc.                 No. 99-3445      No. 99-3445                  Plant v. Morton Int’l, Inc.    17

some bending, walking, occasional light lifting and stair         310 syllabus para. 3. However, the court emphasized that its
climbing. Plant does not claim that these duties were outside     reasons for so holding depended on its understanding of the
his work restrictions, but he states that he was made to feel     legislature’s intent in enacting the whistleblower statute; the
uncomfortable when taking breaks or asking for help from his      court did not claim to generalize to other public policies or
co-workers, which he occasionally needed to do. For               other statutes. See id. at 322-23. Generally, in order to
example, he asserts that he was constantly “scrutinized” while    succeed on a wrongful discharge claim, the plaintiff must
taking breaks and that one of the supervisors, Dave Black,        show only that a “clear public policy existed and was
told Plant that the president of Morton did not want him          manifested in a state or federal constitution, statute or
sitting down so much or taking his breaks in the front office.    administrative regulation, or in the common law”; that
Plant also states that, although he was told he could ask his     “dismissing employees under circumstances like those
co-workers to help him with carrying paint samples, they          involved in the plaintiff’s dismissal would jeopardize the
sometimes failed to comply with his requests, and he was          public policy”; that “[t]he plaintiff’s dismissal was motivated
consequently told to carry them himself if he could. Finally,     by conduct related to the public policy”; and that “[t]he
Plant notes one incident in which Dave Black allegedly            employer lacked overriding legitimate business justification
expressed the opinion that Plant was “milking the system.”        for the dismissal.” Id. at 321 (quoting Painter v. Graley, 639
J.A. at 395 (Plant Dep.). Black denies ever making such a         N.E.2d 51, 57 n.8 (Ohio 1994)).
comment.
                                                                    Nonetheless, the district court reached the correct
   On April 26, 1996, Plant aggravated his back and leg           conclusion with respect to Plant’s wrongful discharge claim.
injuries while carrying paint samples up a flight of stairs at    As we have noted, Plant has not come forward with sufficient
work. At Dr. Logee’s direction, Plant took another leave of       evidence to show that he qualifies as disabled within the
absence from work. As in the past, Plant did not fill out any     meaning of § 4112.02 or the ADA. Although Plant is not
forms or follow any other special procedures to request that      required to prove all the elements of an ADA claim or a
leave of absence, and he continued to receive his full salary.    § 4112.02 claim in order to succeed on a claim for wrongful
On June 7, 1996, while still on a leave of absence for his        discharge in violation of public policy, we believe that unless
medical problems, Plant was terminated. He claims that he         Plant can show that he is a member of the class of people who
was told that the reason for his termination was that Morton      are the intended beneficiaries of those statutes, he cannot
needed someone who could be present more than he could.           show that “dismissing employees under circumstances like
He claims that he was never told of any problems concerning       those involved in [Plant’s] dismissal would jeopardize the
his performance at that meeting and only learned of his           public policy” embodied in those statutes. Therefore, we
alleged poor performance when he attempted to apply for           affirm the district court’s grant of summary judgment to
unemployment benefits.                                            Morton on the wrongful discharge claim.
  Morton, by contrast, claims that Plant was terminated for no                        III. CONCLUSION
other reason than his poor performance and that he was never
told otherwise. In particular, Morton points to Plant’s alleged     For the foregoing reasons, we AFFIRM in part and
inappropriate behavior with some employees of a customer,         REVERSE in part the district court’s grant of summary
Springs Window Fashions (“Springs”). David Mead, an               judgment to Morton, and we REMAND for further
account manager/sales representative from Morton, described       proceedings consistent with this opinion.
one incident in which Plant engaged in a heated discussion
16   Plant v. Morton Int’l, Inc.                  No. 99-3445      No. 99-3445                   Plant v. Morton Int’l, Inc.     5

appropriate to look to federal law when interpreting analogous     with an employee on the floor of the Springs factory.
law under R.C. Chapter 4412.”). But cf. Wooten v. City of          According to Mead’s affidavit, Plant later explained “that he
Columbus, 632 N.E.2d 605, 611 (Ohio Ct. App. 1993)                 had a friendly relationship with the employee’s sister, but that
(stating that the Ohio handicap discrimination law is “at least    she believed he was leading her sister on because he was
as broad, if not broader, in scope than” the ADA (emphasis         married.” J.A. at 82 (Mead Aff.). Mead states that Plant then
added)). Furthermore, the parties have pointed to no               asked him to drive to a local department store, where they met
differences between Ohio case law and federal case law that        the sister of the Springs employee. Plant admits to these
would be relevant to this case. Therefore, we hold that Plant      events, which occurred in March of 1995, while Plant was
is not handicapped within the meaning of Ohio Revised Code         still on a leave of absence but sporadically working, but he
§ 4112 for the same reasons that we held him not to be             claims that the encounter at the department store was
disabled within the meaning of the ADA. See also Maloney           coincidental. Mead also reports having received complaints
v. Barberton Citizens Hosp., 672 N.E.2d 223, 225 (Ohio Ct.         about Plant from Lloyd Nugent, the quality control manager
App. 1996) (stating that the plaintiff’s “transitory” back         at Springs, both about Plant’s socializing with Springs
injury, “which caused her pain and inconvenience for a             employees and about his technical capabilities. Subsequently,
definite period of time, but which had no adverse residual         in May of 1996, Nugent complained again to Mead, telling
effects,” does not constitute a “handicap” under § 4112).          him that Plant was calling Springs employees during business
                                                                   hours and suggesting that Morton’s relationship with Springs
E. The Wrongful Discharge Claim                                    was jeopardized by this behavior. Plant was terminated
                                                                   several days after this last complaint. Plant denies that he
  Finally, Plant argues that Morton’s actions constitute           called any Springs employees during business hours and
wrongful discharge in violation of public policy under Ohio        asserts that, although Mead had briefly advised him not to
law. See Greeley v. Miami Valley Maintenance Contractors,          mix his personal life with his business, he was unaware of any
Inc., 551 N.E.2d 981, 981-82 syllabus para. 2 (Ohio 1990).         problems that Springs had with him. Black admitted that he
This claim is apparently dependent upon Plant’s § 4112.02          did not recall having a meeting with Plant about that incident
claim, since he points to § 4112.02 as embodying the public        and that he was unaware of anyone within the company
policy that was violated by his discharge. The district court      having a conversation with Plant about it.
found that in order to succeed on a claim for wrongful
discharge in violation of the policy embodied in § 4112.02,          Morton also points to two negative performance appraisals
Plant must be able to meet the requirements for showing a          of Plant written by Plant’s immediate supervisor, Bill Jones.
violation of § 4112.02.                                            Although those reviews are not dated, an affidavit by Human
                                                                   Resources Representative Eileen Christiansen, as well as
  We do not believe that Plant was required to show all the        Black’s testimony, suggests that they were completed in 1996.
elements of a violation of § 4112.02 in order to succeed on a      One review described Plant as “Below Expectations” overall
claim for wrongful termination in violation of public policy.      and the other as “Unacceptable.” J.A. at 102, 105
In Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio),        (Performance Appraisals). Both were accompanied by
cert. denied, 522 U.S. 1008 (1997), the Supreme Court of           summaries signed by Bill Jones referring to Plant’s “lack of
Ohio held that the plaintiff’s claim for wrongful discharge in     knowledge in colorant data base systems” and his
violation of the state whistleblower statute would succeed         “inappropriate behavior,” among other things, and
only so long as he could show that he had fully complied with      recommending his termination. J.A. at 104, 107. Black
the requirements of the whistleblower statute itself, see id. at   admitted that he believed that the performance reviews were
6    Plant v. Morton Int’l, Inc.                 No. 99-3445      No. 99-3445                      Plant v. Morton Int’l, Inc.          15

never shared with Plant, however. Jones also wrote a letter to    of Plant’s medical restrictions and modified Plant’s
the Human Resources department immediately after the              responsibilities based on them.
second Springs incident, which described Plant’s poor
performance in very similar terms. However, Jones, who was          Because we hold that Plant was not disabled within the
later terminated as well, wrote a letter subsequent to his        meaning of the ADA and affirm the district court on this
termination, stating that he impugned Plant’s performance         basis, we do not reach the questions whether Plant was
largely under pressure from his superiors and out of fear for     “otherwise qualified” for the position of intermix coordinator
his own employment. Finally, Morton points to memoranda           and whether Morton has put forth a legitimate, non-pretextual
written by Black in the fall of 1995 describing several           reason for terminating Plant.
problems with Plant’s behavior, such as being absent from
work without notifying anyone and personal use of the             D. The Ohio Revised Code § 4112.02 Claim
company phones and fax machines.
                                                                     In order to establish unlawful discrimination on the basis of
  After receiving a “Right to Sue” notice from the Ohio Civil     disability in violation of Ohio Revised Code § 4112.02(A),3
Rights Commission and the EEOC, Plant filed suit against          Plant must show 1) that he is handicapped; 2) that Morton
Morton in state court, alleging discrimination in employment      took adverse action against him because of his handicap; and
on the basis of his disability in violation of the FMLA, 29       3) that he is capable of performing the essential functions of
U.S.C. § 2601 et seq., the ADA, 42 U.S.C. § 12101 et seq.,        the job in question. See Hazlett v. Martin Chevrolet, Inc., 496
Ohio Revised Code § 4112.02, and the state wrongful               N.E.2d 478, 480 (Ohio 1986). The district court granted
discharge laws. Morton removed the case to the federal            summary judgment for Morton on Plant’s § 4112.02 claim,
district court for the Northern District of Ohio. Morton          finding that it could apply the same analysis to that state law
moved for summary judgment, which was granted as to all of        claim as it had applied to the ADA claim.
Plant’s claims. This timely appeal followed.
                                                                    Ohio case law appears to support the district court’s
                      II. ANALYSIS                                decision. See, e.g., City of Columbus Civil Serv. Comm’n v.
                                                                  McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998) (noting that
A. Summary Judgment Standard                                      the ADA is similar to the Ohio handicap discrimination law
                                                                  and looking to federal law in order to determine whether
  This court reviews a district court’s grant of summary          nearsightedness is a disability under § 4112); Greater
judgment de novo. See EEOC v. Northwest Airlines, Inc.,           Cleveland Reg’l Transit Auth. v. Ohio Civil Rights Comm’n,
188 F.3d 695, 701 (6th Cir. 1999). Summary judgment               567 N.E.2d 1325, 1328 (Ohio Ct. App. 1989) (“It is
should be granted only if there is no genuine issue of material
fact and the moving party is entitled to a judgment as a matter
of law. See FED. R. CIV. P. 56(c); Johnson v. United States           3
                                                                       Section 4112.02 provides:
Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving           It shall be an unlawful discriminatory practice:
party bears the initial burden of showing the absence of a           (A) For any employer, because of the race, color, religion, sex,
genuine issue of material fact. See Celotex Corp. v. Catrett,        national origin, handicap, age, or ancestry of any person, to
477 U.S. 317, 323 (1986). The burden then shifts to the              discharge without just cause, to refuse to hire, or otherwise to
nonmoving party to come forward with evidence showing that           discriminate against that person with respect to hire, tenure,
                                                                     terms, conditions, or privileges of employment, or any matter
there is a genuine issue for trial. See Anderson v. Liberty          directly or indirectly related to employment.
Lobby, Inc., 477 U.S. 242, 256 (1986). There is no genuine        OHIO REV. CODE § 4112.02.
14   Plant v. Morton Int’l, Inc.                  No. 99-3445      No. 99-3445                   Plant v. Morton Int’l, Inc.      7

his termination on June 6, 1996. See Matsushita Elec. Indus.       issue for trial unless the nonmoving party has produced
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)             enough evidence for a jury to be able to return a verdict for
(stating that a court may consider the plausibility of a moving    that party. See id. at 249. “The evidence of the non-movant
party’s evidence in determining whether that party has met its     is to be believed, and all justifiable inferences are to be drawn
burden for summary judgment); Penny v. United Parcel Serv.,        in his favor.” Id. at 255.
128 F.3d 408, 416 (6th Cir. 1997). Furthermore, temporary
physical conditions like Plant’s do not generally constitute       B. The FMLA Claim
substantial impairments. See Interpretive Guidance, 29
C.F.R. §1630.2(j) App.; Roush v. Weastec, Inc., 96 F.3d 840,         The FMLA provides that an eligible employee is entitled to
844 (6th Cir. 1996). Although the evidence did not clearly         twelve weeks of leave from work for a “serious health
indicate that Plant’s condition was temporary, Plant was           condition” that renders the employee incapable of fulfilling
unable to come forward with any evidence that it was               that employee’s job responsibilities.          29 U.S.C.
permanent, and the mere possibility of recurrence is not           § 2612(a)(1)(D). An employer who interferes with an
sufficient to establish substantial impairment. See Roush, 96      employee’s rights under the FMLA may be held liable in a
F.3d at 844. For these reasons, we hold that Plant has failed      civil suit. See 29 U.S.C. § 2617; Miller v. Defiance Metal
to produce sufficient evidence from which a reasonable jury        Prods., Inc., 989 F. Supp. 945, 946 (N.D. Ohio 1997).
could conclude that he was disabled within the meaning of the
ADA during the time in question.                                      Plant argues that Morton interfered with his rights under the
                                                                   FMLA. He claims that after his April 26, 1996 injury, he
   Furthermore, we reject Plant’s contention that he was           qualified as having a serious health condition that prevented
“regarded as” disabled within the meaning of 42 U.S.C.             him from performing the essential functions of his position.
§ 12102(2). Plant has come forward with no evidence to             Therefore, he argues, he was entitled to twelve weeks’ leave
show that he fits within this definition of disabled, other than   under the FMLA, but he was terminated after only about six
to suggest that because Morton made accommodations for             weeks. Furthermore, although Plant admits that he would not
Plant’s medical restrictions, it viewed him as disabled. This      have been able to return to work within twelve weeks in any
is clearly not the kind of situation to which the statutory        case, he argues that he should have been allowed to “stack”
provision for those who are “regarded as” disabled was             the FMLA leave on top of his employer-provided temporary
intended to refer. Rather, the EEOC regulations explain that       disability leave. In any case, he adds, his FMLA leave
this definition of disability applies when the employee has an     allotment would not start to run until Morton notified him that
impairment that is not substantially limiting but is treated as    it was designating his leave as FMLA leave, which it never
substantially limiting, or when the impairment is limiting only    did. See 29 C.F.R. § 825.208(c) (1998).
because of others’ attitudes, or when the employee has no
impairment at all but is viewed as having a substantially             Relying on Sixth Circuit precedent, the district court
limiting impairment by the employer. See 29 C.F.R.                 rejected Plant’s arguments. In Cehrs v. Northeast Ohio
§ 1630.2(l). The intent behind this provision, according to the    Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998),
EEOC, is to reach those cases in which “myths, fears and           this court held that the plaintiff could not show a violation of
stereotypes” affect the employer’s treatment of an individual.     her rights under the FMLA, even if her employer had
29 C.F.R. § 1630.2(l) App. Plant cannot show that this             terminated her before she had used her entire twelve-week
provision applies to him merely by pointing to that portion of     allotment of leave, because she was undisputably unable to
the record in which his supervisor admitted that he was aware      return to work within twelve weeks in any case. See id. at
                                                                   784-85. Because Plant similarly would not have been able to
8    Plant v. Morton Int’l, Inc.                 No. 99-3445      No. 99-3445                   Plant v. Morton Int’l, Inc.     13

return to work until August 5, 1996, the district court found     evidence to raise an issue of fact as to whether Morton’s
that Cehrs was directly on point and Plant could not show a       nondiscriminatory explanation for Plant’s termination was
violation of the FMLA.                                            pretextual.
  We hold that Cehrs is not applicable to this case. Although        We hold that Plant has not produced sufficient evidence
the Cehrs court appeared squarely to hold that an employee        from which a factfinder could conclude that he was disabled.
who cannot return to work within twelve weeks has no              The definition of “physical or mental impairment” under the
remedy under the FMLA, it did not specifically consider the       ADA clearly includes Plant’s musculoskeletal condition of
problem presented in this case — that of notice by the            knee contusions and back strain, see 29 C.F.R. § 1630.2(h)(1)
employer that the employee’s leave is being counted against       (1999), and the term “major life activity” includes many of
his FMLA allotment. Because there is a Department of Labor        those activities described by the plaintiff: the EEOC
regulation, 29 C.F.R. § 825.208(c), that specifically discusses   regulations and the appendix to those regulations identify
the requirement of notice by employers, and because we            walking, performing manual tasks, working, standing, and
believe that regulation to be valid, we hold that § 825.208(c),   lifting as major life activities, see 29 C.F.R. §1630.2(i);
rather than Cehrs, governs the case sub judice.                   Interpretive Guidance 29 C.F.R. §1630.2(i) App. However,
                                                                  Plant has not made a sufficient showing that his impairment
   The FMLA makes it clear that employer-provided leave,          substantially limited his ability to perform those major life
whether paid or unpaid, may be counted toward the twelve-         activities. In his deposition, Plant stated that he was, at the
week minimum required by the statute. See 29 U.S.C.               time of the deposition, injured to the point that he believed
§ 2612(c)-(d). The Department of Labor’s regulations              himself completely unable to work, unable to sit for more
implementing the FMLA, which became final on April 6,             than three to five minutes, unable to drive on a daily basis,
1995, see Bauer v. Varity Dayton-Walther Corp., 118 F.3d          and unable to lift, bend, or stoop without severe pain.
1109, 1111 n.1 (6th Cir. 1997), elaborate on the                  Initially, Plant stated that he suffered those same impairments,
circumstances and conditions under which this may be done.        “on and off,” during the time he was employed by Morton.
In particular, 29 C.F.R. § 825.208(a) emphasizes that “[i]n all   J.A. at 478-80 (Plant Dep.). Later, however, Plant agreed that
circumstances, it is the employer’s responsibility to designate   he was attributing his current inability to work to injuries that
leave, paid or unpaid, as FMLA-qualifying, and to give notice     resulted from yet another automobile accident, which
of the designation to the employee.” 29 C.F.R. § 825.208(a).      occurred nine months after he was terminated by Morton, in
Furthermore, the regulations provide that an employer             April of 1997. Furthermore, Plant admitted that he worked
wishing to count paid leave against the twelve-week               sporadically after his termination, from approximately
minimum must so inform the employee within two days of            November of 1996 to April of 1997, at a job that involved
learning of the employee’s FMLA-qualifying reason for             traveling to Pennsylvania once a week, installing computers,
requesting leave. See id. § 825.208(b). If the employer fails     and training customers to use their computers. Finally, Plant
to give notice to the employee within this period of time, the    admitted that he was never told by a physician that his
employer may not designate the leave as FMLA leave                impairment was permanent; nor was he told, however, that it
retrospectively; only that portion of the leave following         was temporary.
notification by the employer may be designated as FMLA
leave and counted against the twelve-week entitlement. See          Plant’s self-contradictory and logically suspect testimony is
id. § 825.208(c).                                                 simply not sufficient to support a jury finding that he was
                                                                  disabled during the period at issue here, from April 26 until
12    Plant v. Morton Int’l, Inc.                  No. 99-3445      No. 99-3445                        Plant v. Morton Int’l, Inc.          9

  (B) a record of such an impairment; or                               The Cehrs court did not directly address these regulations,
  (C) being regarded as having such an impairment.                  nor is it apparent from reading that decision whether the
                                                                    employer had given notice to the plaintiff that her absences
42 U.S.C. § 12102(2). In his brief, Plant claims that he is         would be counted as FMLA leave. Furthermore, the
disabled, because his ability to walk and to stand were             employee in Cehrs had taken unpaid leave rather than paid
severely limited by his injuries. Based on the evidence             leave, see Cehrs, 155 F.3d at 779; therefore, the court had no
presented by Plant, it appears that he also considers himself       occasion to address § 825.208(c), which appears to govern
substantially restricted in the activities of bending, stooping,    only those cases in which 1an employer wishes to designate
running, exercising, and driving. Plant also argues that he         paid leave as FMLA leave. Because it is undisputed in this
was “regarded as” disabled by Morton, and that this fact is         case that Plant received his full salary during his second
evidenced by Morton’s attempts to accommodate his medical           absence from work, and because it is undisputed that Morton
restrictions. Furthermore, Plant contends that he was               never informed Plant that it was counting his paid absence
qualified for the position of intermix coordinator with certain     against the statutory FMLA allowance, Cehrs is inapplicable
reasonable accommodations. Finally, since Morton has not            to this case. Furthermore, the record contains uncontroverted
disputed that it knew of Plant’s medical problems, terminated       evidence that, although Plant did not specifically report to his
him, and either replaced him or left his position open while        employer the re-injury of his back that occurred on April 26,
seeking other applicants, Plant argues that he has made out a       1996, Morton did receive a notice from Plant’s doctor, dated
prima facie case of discrimination. Although Morton claims          May 6, 1996, excusing Plant from work due to a “[f]lare up
that Plant was terminated for poor job performance, Plant           [of his] lumbar/back problem.” J.A. at 99 (Slip from Dr.
urges that he has presented enough evidence to raise a              Owen Logee). The FMLA regulations make it clear that, in
genuine issue of material fact with respect to Morton’s             such a situation, if the employer feels it does not have
proffered explanation, pointing to Dave Black’s alleged             sufficient information to determine whether the employee’s
statement that Plant was being terminated due to his absences       reasons for requesting leave are encompassed by the FMLA,
and to Bill Jones’s recantation of his negative appraisal of        “the employer should inquire further of the employee . . . to
Plant.                                                              ascertain whether the paid leave is potentially FMLA-
                                                                    qualifying.” 29 C.F.R. § 825.208(a). The employee need not
  The district court found that Plant failed to establish that he   invoke the FMLA by name in requesting leave for an FMLA-
was disabled, because Plant’s “unsupported testimony” did           qualifying reason. See id. § 825.208(a)(2).
not demonstrate that his injury was sufficiently severe to limit
substantially his ability to perform a major life activity. It        We see no reason why § 825.208(c) should not be
further found that Morton’s attempts to accommodate Plant’s         considered valid and applicable to this case. In the absence of
restrictions were not sufficient to demonstrate that Morton
regarded Plant as disabled. Moreover, the district court
concluded that even if Plant were disabled, he was not                  1
“otherwise qualified” for the position of intermix coordinator,           We note that 29 C.F.R. §§ 825.301(b)-(c) and 825.700(a) prescribe
because by his own admission he could not perform the               almost identical notice rules when employers wish to designate unpaid
essential functions of the job, such as traveling to customer       leave as FMLA leave. However, the interim regulations, which applied
                                                                    to the parties in Cehrs, did not contain the same notice requirements for
locations. Finally, the district court stated that even             designating unpaid leave as FMLA leave, nor did they explicitly state that
assuming, arguendo, that Plant made out a prima facie case          the failure to designate unpaid leave as FMLA leave stops the clock from
of discrimination, he did not come forward with sufficient          running on the employee’s 12-week entitlement. See 29 C.F.R.
                                                                    §§ 825.301, 825.700(a) (1994) (interim regulations).
10       Plant v. Morton Int’l, Inc.                    No. 99-3445        No. 99-3445                  Plant v. Morton Int’l, Inc.    11

specific statutory language governing a topic, agency                      claim due to the fact that he would have been unable to return
regulations “are given controlling weight unless they are                  to work within a twelve-week period, we nonetheless must
arbitrary, capricious, or manifestly contrary to the statute.”             consider whether Plant has demonstrated the other elements
Chevron U.S.A. Inc. v. Natural Resources Defense Council,                  of an FMLA claim. In particular, Plant is entitled to twelve
Inc., 467 U.S. 837, 844 (1984). The FMLA itself is silent as               weeks of leave under the FMLA for his medical problems
to the notice an employer must give to an employee before                  only if he can show that he had a “serious health condition”
designating his paid leave as FMLA leave. We believe that                  which rendered him “unable to perform the functions of” his
§ 825.208(c) evinces a reasonable understanding of the                     position. 29 U.S.C. § 2612(a)(1)(D); see Miller, 989 F. Supp.
FMLA, reflecting Congress’s concern with providing ample                   at 946. According to the regulations, a serious health
notice to employees of their rights under the statute. See 29              condition must involve either inpatient care or continuing
U.S.C. § 2619(a). Moreover, because the FMLA was                           treatment by a health care provider. See 29 C.F.R.
intended to set out minimum labor standards, we do not                     § 825.114(a). Because the district court decided this case on
believe that § 825.208(c) is inconsistent with legislative intent          other grounds, it did not consider whether Plant’s medical
merely because it creates the possibility that employees could             problems met the definition of a serious health condition
end up receiving more than twelve weeks of leave in one                    under the statute and its implementing regulations. We
twelve-month period, due to an employer’s failure to notify                therefore remand for that court to determine whether Plant has
them that the clock has started to run on their allotted period            successfully made out the elements of an FMLA claim.
of leave. See S. REP. NO. 103-3, at 4-5 (1993), reprinted in
1993 U.S.C.C.A.N. 3, 6-7. We therefore disagree with                       C. The ADA Claim
McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999),
and Covey v. Methodist Hospital of Dyersburg, Inc., 56 F.                     In order to establish a prima facie case of discrimination
Supp. 2d 965 (W.D. Tenn. 1999), which held that                            under the ADA, Plant must show 1) that he is disabled; 2) that
§§ 825.208(c) and 825.700(a) were in conflict with the                     he is otherwise qualified for his previous position with
FMLA’s creation of a narrow entitlement to twelve weeks of                 Morton, with or without reasonable accommodation; 3) that
leave and therefore invalid. See McGregor, 180 F.3d at 1308;               he suffered an adverse employment decision; 4) that Morton
Covey, 56 F. Supp. 2d at 969-70. Rather, we conclude that                  knew or had reason to know of his disability; and 5) that he
those regulations are valid and forbid employers from                      was replaced or that his position remained open while Morton
retroactively designating FMLA leave if they have not given                looked for other applicants. See Monette v. Electronic Data
proper notice to their employees2 that their statutory                     Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If he
entitlement period has begun to run. Accord Cline v. Wal-                  succeeds, the burden shifts to Morton to provide a non-
Mart Stores, Inc., 144 F.3d 294, 300-01 (4th Cir. 1998);                   discriminatory explanation for its actions. See id. If Morton
Ritchie v. Grand Casinos of Mississippi, Inc., 49 F. Supp. 2d              satisfies its burden, Plant must then come forward with
878, 880-81 (S.D. Miss. 1999).                                             evidence demonstrating that Morton’s proffered explanation
                                                                           is pretextual. See id. At all times, Plant retains the ultimate
   Having determined that, since his FMLA leave had not yet                burden of persuasion. See id. at 1186-87.
started to run, Plant is not precluded from asserting an FMLA
                                                                             A “disability” under the ADA is defined as
     2
      We note that this holding renders it unnecessary for us to address
                                                                             (A) a physical or mental impairment that substantially
Plant’s “stacking” argument, which appears to be a variation of his          limits one or more of the major life activities of [an]
argument pertaining to the notice requirements.                              individual;
