*1 it staking grant around instead of down. district court s of a preliminary moved in- addition, presumably, junction, In so Apx. 159-61. even on abuse of re- discretion rat on a cart or a long placed as the was view. that cart

wagon provided the or the during moved about the dem- wagon was C. Conclusion onstration, City object not the would its I City’s Because believe that the ordi- presence apply. as the ordinance would not time, permissible nance is a place, and if I am incorrect and the inflatable Even restriction, manner that that fact means used, rat could not be itself Union unlikely the Union is to succeed on signs pictures could still make of rats case, the merits of its I and because do not them, pass out smaller rat balloons to point clearly believe the other factors many or passers-by, use other methods direction, I one believe that it message. Ample communicate its alterna- abuse of discretion for the district court to channels of communication are avail- tive grant preliminary injunction. I would Therefore, I able here. because believe reverse the grant pre- district court’s of a as-applied the ordinance to the rat liminary injunction and remand for further time, tests, I passes place, and manner proceedings. unlikely that the Union is to suc- believe ceed on the merits of its case.

B. factors Other I do not believe that

Given merits, likely

Union is to succeed on the I that it irrepa-

do not believe would suffer injunction granted.

rable harm if the is not Furthermore, given that the Union has MOORER, William T. Plaintiff- ample alternative channels of communica- Appellee/Cross-Appellant, it, any tion I available believe harm v. it would suffer would be minimal. There- BAPTIST MEMORIAL HEALTH fore, factor, best, weigh this does not SYSTEM; Baptist CARE Memorial party, may weigh favor of either and it (03— Corporation Health Care injunction. favor not Fi- granting 5855/5965); Cathy Hill; M. John N. nally, although majority believes that (03-5855), Defendants-Appel Robbins public “the factor this interest case lants/Cross-Appellees. weighs in dearly protecting favor of rights First Amendment of the Union’s 03-5855, No. 03-5965. (citation omitted) (emphasis members[.]” Appeals, United States Court mine), I believe that this interest must be Sixth Circuit. public balanced with the interest in local governments being legislate able to Argued: Sept. 2004. governments enforce laws that those deem Decided and Filed: Feb. Therefore, necessary. I not do believe clearly factor favor either party even if the constitutional issues do way. Finally,

tilt the balance one while injunction

granting likely will not harm

others, that factor alone cannot save the *3 Gordon, Tennessee, Covington, Houston

J. Appellee. CLAY, BOGGS, Judge; Before: Chief HAYNES, Judge; Judge.* District Circuit CLAY, J., opinion of the delivered HAYNES, D.J., court, joined. in which 490-91), BOGGS, (pp. J. delivered concurring part separate opinion dissenting part.

CLAY, Judge. Circuit Health Baptist Defendants Memorial System Baptist and Memorial Health Care (collectively “Baptist”) Corporation Care 3, judgment of the appeal the June court in favor of Plaintiff William district claim “Tate” Moorer on his for discrimina- tory discharge in violation of the Ameri- Act of cans with Disabilities (“ADA”). Baptist §§ 12101-12117 U.S.C. in the district court erred asserts finding regarded it Moorer as dis- it discharged abled and that Moorer be- perceived disability. Baptist cause of his challenges the district court’s award also $250,000 compensatory to Moorer damages for emotional distress. Moorer the district court’s earlier cross-appeals grant summary judgment favor of Family Baptist on his claim under Act, § Leave 2601-2654 Medial U.S.C. (“FMLA”). follow, For the reasons AFFIRM in favor of judgment we Prather, E. Kiesewetter ARGUED: Paul claim, ADA Moorer on his but REVERSE Prather, & Mem- Kaplan Wise Schwimmer granting summary judgment in the order Tennessee, phis, Appellants. for Justin S. Baptist favor of on Moorer’s FMLA claim. Gilbert, Firm, Jackson, Ten- the Gilbert nessee, Appellee. for ON BRIEF: Paul E. I. Prather, Tanja Thompson, L. Kiesewetter Background Prather, Kaplan & Mem-

Wise Schwimmer A. Facts Substantive Tennessee, Appellants. for Justin S. phis, Gilbert, Firm, Jackson, Plaintiff worked Ten- William “Tate” Moorer Gilbert Gordon, nessee, Baptist Memorial Health J. Houston Law Office of for Defendants * Jr., Tennessee, sitting by designation. Haynes, The Honorable William J. United Judge for the Middle District of States District System Baptist Care Memorial Health Mansfield told Hill that Moorer had made areas, Corporation years prior progress others, Care for 17 to his in some but not years, termination in 1997. Over the should up follow on those areas of enjoyed promotions, continuing a series of concern. culminating Baptist when promot- On June Hill met with Moorer him to ed Administrator and Chief Finan- January discussed the per- Tipton County cial Officer of Hos- formance evaluation. She asked Moorer pital (“BMH-Tipton”) and Lauderdale for regarding “his feedback that memo and (“BMH-Lauderdale”). Baptist Hospital was, where he where he saw himself only Moorer was administrator identified,” relation to those issues and she system responsibilities who had plan asked for “his for corrective action.” hospitals. responsibilities two His includ- Hill told put Moorer to feedback the day-to-day operation hospi- ed of the written form and that it would be for tals; physical safety condition and eyes only.” “[her] On June care; hospitals; quality patient Hill, requested faxed the memo to staff; development of medical the annual which Hill acknowledged receiving. *5 results; budgetary process and financial 9, Hill and July Moorer met on 1997 to leasing space physicians to col- and 16, discuss Moorer’s June 1997 memoran- them; lecting rent from and legal compli- Hill promised dum. provide Moorer Starting ance. in reported Moorer with a of goals list that he was to accom- Mansfield, directly to Steve Chief Execu- plish, and agreed Moorer to meet those for Baptist’s regional hospitals. tive Officer 21, 1997, goals. July On prepared Hill a 27, 1997, January On Mansfield and his draft memorandum containing perform- Robbins, supervisor, Baptist’s direct John goals, gave ance but never it to Moorer. President, Executive Vice met with Moor- That acknowledged memorandum that er to a performance discuss list of con- Moorer had made efforts to correct certain deficiencies, cerns set forth in a performance performance evaluation but added that January Approximately improve job dated 1997. he his overall per- .needed later, formance responded orally two weeks Moorer and failure to do so September might with a in “plan of action” to address the result his concerns, termination. and Mansfield and Robbins agreed to it. July 22, 1997, On Hill a attending meeting of the West Tennessee April

In Mansfield assumed a new Board, Health Services a Group meeting Baptist East, role as the CEO of hospital that Moorer also attended. Hill was Memphis, job Tennessee. His duties corridor, standing in a outside of the meet- among were divided people, several each of room, greeted when she Moorer and whom assumed the new title of “mar- thought perceived she the smell of alcohol May ket leader.” Cathy On Hill trial, on his breath. At Hill described the became the market leader for all of the interaction as follows: hospitals and physician practices in the market, Quite West Tennessee and frankly, thought assumed re- as I had about sponsibility this, know, supervising for Moorer. In you Mr. Moorer had told me transferring his West Tennessee duties his—in his letter that he sent me that Hill, Hill gave sleepless nights Mansfield met with her he worrying had about January performance evalua- performance some of these So issues. tion that he prepared particular night,... had for Moorer. at I felt up had shown .too and knew— mentioned Moorer was smart

Mr. long to know meeting too with alcohol on his breath. had worked to a than to come know better that —to 6,1997, Hill an e-mail August On sent per- if the I sure meeting, but wasn’t Braughton concerning Moor- Robbins causing an alcohol issues were formance follow-up to the conference the er' as perform- alcohol or if there was an [sic] stated, part: week. The e-mail previous issue, I ance didn’t know. recommended, I have made contact meeting, During the Hill observed giv- confidential and was had discussions on his his chair his chin slump following en the recommendation: and be chest, straighten up and then Swiftly... agrees 1. Our Act resource1 also no- fidgety” his seat. She “rather high likely with our assessment of hood ruddy. complexion appeared his ticed that pivot good incident2 [sic] drinking had been Moorer denies he broader, lon[g] term indicator issue. that, alcohol, after explains and instead as performance 2. Discuss issues and his smoking cigarettes, he had washed concern, part of that make man- just prior to the SIDE out with Listerine mouth fatigue agement giving and his referral individual small meeting. He attributed his tropical to the vacation of time decision ruddy complexion amount make recently had returned. from which he interview. use the observa- first Do not ago emphasis. 2 weeks primary tion not confront Moorer about her did breath, of alcohol but perception Plan on weeks minimum of 3-4 instead, later, days about two told Robbins leave for the individual. *6 that, About a after the incident. week 4. Plan to if refuses to act terminate on Robbins, Hill, Larry Braughton, and Sen- management recommendation. Resources, Human ior President of Vice up “[b]ack The e-mail concluded with a Braughton the issue. recom- discussed plan[]” during to cover for Moorer “CONCERN,” Hill contact mended get long leave “until we a better idea of Baptist’s Assistance Employee

which is term situation.” suggestion Hill followed this Program. Hill testified that Minderman “Mr. had Minderman, Di- and contacted Patrick given specific us the recommendations CONCERN, during the first rector of how to Mr. regarding handle Minder- August 1997. told week She trial, however, At situation.” Minderman was adminis- high man that “there a level telling Hill that Moorer had an denied Baptist system in the that' she [ sic] trator problem making alcohol or a recommen- about of his work was concerned because that Moorer to be ter- might dation need performance problems.” Hill called Min- n telling minated. He also did not recall again, or two la- possibly derman a week July 22 ter, Hill that incident which indicating she was still concerned Hill smelled alcohol on Moorer’s breath employee provided and more about call, “good broader, awas indicator of During [a] detailed information. she issue”; name, denied telling long-term identified Moorer Minder- he further good an incident indica- having per- man that Moorer had been such would be broader, problems year- longer-term formance and of a issue. In for the last tor "pivot phrase was refers to The "resource” mentioned in the e-mail 2. The incident” perceived July Hill 1997 incident in which Minderman. of alcohol breath. a smell on Moorer’s fact, “full Minderman had no assessment of clarification of issues and recommen- of August Moorer’s condition as 1997. dations” from the fitness assessment. It telling Hill that flatly He denied Moorer also set out “additional action plans- and on placed should be leave for treatment goals” for Moorer and warned that “[f]ail- plan or that Hill should leave for him. ure to successfully 100% to adhere or com- plete” them would “a be basis for immedi- Hill, Robbins, August On and ate disciplinary additional up actions Braughton August discussed Hill’s including and Contrary termination.” agreed appropriate to it as the e-mail instruction, however, the no-contact some plan Collectively, they of action. decided goals required of these hospi- contact with pro- to refer Moorer to the CONCERN personnel, tal including revising the BMH- gram duty for a fitness for evaluation. Tipton’s strategic plan, give which would Robbins, input Braughton, With Moorer “the opportunity personally in- counsel, Hill legal prepared letter teract with all levels of staff.” Id. The alleged performance Moorer that outlined strategic plan required was to be submit- goals deficiencies and 27,1997. by August ted expected to meet. The a revi- letter was n prepared of the draft letter Hill had sion Hill Robbins and met with Moorer on July gave 1997 but never to him. August 1997 and presented Moorer noted, in I part, The letter “While find that letter, During meeting, with the you have efforts to made correct the noted family told Moorer that she history had improve- deficiencies and have made some of alcoholism and told Hill she areas, ments some there is a lack of thought he was alcoholic. Hill and progress substantial toward elimination of Robbins then assured Moorer that he thus, improve- root causes and limited job would have a when he returned from in your performance ments overall alcohol rehabilitation. operations the desired outcomes termination, agreed To avoid you the two facilities administer.” These *7 an morning have evaluation the next with purported deficiencies included inconsis- John Houlihan of CONCERN. He met tent financial reporting; due accounts past Houlihan, with who diagnosed Moore with receivable; improper management of a “chemical and abuse” recommended treat- contract; physician’s lack of effort to edu- Hospital/Talbott ment at the Anchor Re- regarding budget cate his staff revised 22, 1997, covery August Center. On issues; processes; customer satisfaction recovery in At- Moorer flew to the center symptoms and of drunkenness exhibited at lanta. He was scheduled for five of weeks 22, July meeting. the The letter stayed treatment and the full five weeks. continued, management “I have made a Concern, EAP, referral to for fitness as- 28, 1997, August On while Moorer was any sessment and resulting plan of action. center, recovery at telephoned the Hill mandatory your This is action and failure said, Moorer’s wife at home and “I know am, participate cooperate by to and an awful lot about alcoholism and alcohol- 20, August your 1997will result in immedi- ics.” She told Mrs. Moorer her father termination.” ate alcoholic, brother, an as was her who that “al- had killed himself. She also said letter further instructed Moorer “to your refrain from with ANY coholism is an incurable disease and ANY contact hos- cured, pital personnel” until and Hill had husband will never be and it is a Robbins Second, Hill sating hospital. received deadly disease.”3 at complaints employees BMH-Tip- 1997, Cannon, Dr. Jesse August On employee ton about certain relations is- BMH-Tipton, at of Staff Chief the Medical sues, accusation that including an Baptist, President of sent to the letter especially did not respect employees, wom- Moorer, and as well as to Hill copies en, survey showing and of a the results of the Tennessee Health Anita Vantries rated the employees had administra- (“THFC”), the Care Facilities Commission national leadership tive below norms. hospitals. licensing agency state for Can- Third, Hill September on learned list problems non’s of letter forwarded high about accounts receivable balances hospital that had and deficiencies at hospitals managed, for the that Moorer light past come to over the three to five apparently bacMog due to a of claims and years complaints of other attached rate inordinately high an error in claims attributed physicians as well. Cannon Fourth, processing. during the first week management’s problems require- these September, of Hill discovered must system ment that the “decrease cost employees care certain home health problems at all included the cost.” The agency payroll actually home health were to close facili- decision of Moorer restroom working raising hospital, poten- at the building ties office the south doctor’s provides tial of fraud because Medicare hospital because a had sued the patient larger home reimbursement for health floor; poor after the wet slipping on agency care work for the workers who hospital’s maintenance of the facilities opposed hospital. to the (in- conditions; leaking ceilings unsanitary rooms); cluding a fire Between 1997 and operating August Septem- in the regular hazard in room to a lack ber Hill had operating due contact with space supplies; regarding too few Robbins Moorer. She storage recom- nurses; permitted Hill shortages supplies. mended that Moorer not be many complaints BMH-Tipton these come back confirmed to work be- . through investigation performance problems. her own and was cause Rob- required $200,000 spend to address bins took recommendation Hill’s under ad- visement, them. and later decided to terminate had lost because he confidence in Other purportedly issues came to Hill’s ability independent to run an fa- First, attention in time-frame. Hill, cility. According decision to signed could not locate the leases employment terminate Moorer’s was made physicians space in physi- for the office *8 during September prior the week cian at buildings BMH-Tipton; office she 1997. also allegedly reports learned via verbal Hunsucker, auditor, from Braughton Joe an internal Robbins and developed that physicians obtaining script were medical with the human resources depart- supplies pharmaceuticals and from the ment that Hill to follow when was termi- hospital, using nating employment. as well as labor from the con- After office, hospital’s sulting compen- business without with Houlihan CONCERN and trial, person- long cope 3. At injury that she had battle to with a brain Hill confirmed he had family experiences al that caused her to be suffered in an alcohol-related automobile ac- Hill, explained According personal expe- interested in alcoholism. She cident. her "greater insight” both and brother had alco- rience to have a her father abused enabled her hol, and her brother committed suicide after a into alcoholism. therapist, Braughton with Moorer’s deter- use of FMLA leave. The court further relay mined that it would be best to held that Moorer had no right substantive termination in person decision and that the to return to his after his leave because have, therapeutically appropriate day most his “termination does not appear to relay this information was September leave, been due to his use of FMLA but (i.e., 1997. Robbins and Hill traveled to Atlan- rather to other factors per- deficient day ta on that and met with Moorer formance according Baptist age or his Hill primary therapist. disability read primarily discrimination according to Moorer).” script. the termination Finally, Moorer re- the court denied Bap- meeting calls little from the tist’s except that motion for summary judgment as to Hill told him that his problems work were Moorer’s ADA and-ADEA finding claims by caused his genuine disease. issues of material fact for trial. After a completed Moorer the five-week bench trial on treat- Moorer’s ADA claims, ment and ADEA period, but doctors recommended the district court con- Baptist ADA, that he remain in cluded that treatment for a violated the few but not the additional weeks. Moorer ADEA. The elected leave district court found program against treatment Moorer did not medical ad- suffer an actual dis- alcoholic, ability, vice. Moorer he- an nor did admits is but he have a record of a Instead, disability. testified that he has not had a drink the court since focused on August theory Baptist regarded him as

having disability. The court cited to the History B. Procedural following support evidence to its conclusion Baptist alleged linked Moorer’s per- brought against suit Baptist, al- formance deficiencies to a belief that he leging Baptist discharged (1) alcoholic: Baptist demanded violation of the Americans with Disabilities that' Moorer duty undertake a fitness for Act §§ U.S.C. 12101-12117 (2) examination; 19, 1997, on August (“ADA”), Age Discrimination in Em- told thought Moorer that she he was an 1967,'29 ployment §§ Act of 621- U.S.C. required alcoholic and him to seek treat- (“ADEA”), Family Medial Leave (3) ment; while Moorer was undergoing Act, (“FMLA”), § 29 U.S.C. 2601-2654 treatment, Hill called Moorer’s wife and Act, Rights Tennessee Human TeNN. told her that alcoholism an incurable 4-21-101 et seq., the Tennes- § Code Ann. and, therefore, disease Moorer would nev- Act, Handicap § see 8- Tenn. Code Ann. (4) cured; be er and when Hill fired Moor- 50-103, and that committed th'e er, she told him that his work-related tort of misrepresentation. tortious On problems were caused his disease of February grant- the district court alcoholism. summary judgment ed favor of on Moorer’s state law claims for Finding testimony tortious Hill’s “lacking in yiolation misrepresentation and for credibility” value,” of the and to be of “no Handicap Tennessee Act and rejected the Tennes- court Hill’s assertion that she re- *9 Rights see Human Act lied'solely on statute of limita- poor perform- on work Moorer’s grounds. tions The court granted also ance in him requiring to have treatment summary judgment Baptist to on Moorer’s and then recommending his termination. Rather, FMLA claim on ground that Moorer the court found “that Hill in acted accord, presented had no evidence of a causal con- with her belief that Plaintiffs defi- nection between his termination and his ciencies were related to his alcoholism.” 478 of court cited to Moorer’s that Hill believed The evidence found

The court next fact anxiety, and the substantially sleep deprivation, limit alcoholism termination, alleged that the reason for his activity working. of major life alcoholism, in knowledge public became duties were court noted that Moorer’s community. The court also awarded diverse, that could small requiring general skills $124,260.45 reinstate- pay in front because range of fields. The in a broad be used The court de- option. ment was not an required the “skills court found that punitive damages. Sepa- are clined award hospital administrator Plaintiff as Moorer’s counsel rately, the court awarded necessary as for most easily identified $212,060.34 fees and costs. attorneys’ positions,” regard- high-level management Therefore, the court conclud- less of field. 2003, on Judgment was entered June evi- “quantitative it not need ed that did appeal its notice of on Baptist filed precluded him impairment dence that his a notice of 2003. Moorer filed June jobs in the rele- from a certain number summary appeal granting of the order Further, the court found vant market.” on his FMLA judgment favor of that Plaintiffs “since Hill believed judgment in favor of claim and substantially ability limited his alcoholism appeal, on his ADEA claim. On Baptist, she must also have work any argument concerning has not raised impairment an would recognized such claim, has waived this his ADEA so he performing him from precluded have on appeal. issue jobs.” broad class of Last, Baptist’s found that ar the court II. terminating

ticulated reasons ADA Claim already only after Hill had “were identified pre that Plaintiffs alcoholism concluded A. Standard of Review such, they working; him from as vented trial of appeal On the bench regardless alleged of their pretext, are claim, ADA the district we review Tenn., validity.” (citing Maddox v. Univ. of findings of fact for clear error. court’s Cir.1995)). (6th As the court 62 F.3d 843 Covington, Group, City MX Inc. v. accompanying in its order: summarized Cir.2002) (6th (citing Bur F.3d Cathy Hill supervisor per- Plaintiffs (6th Cohen, 611, 616 zynski v. 264 F.3d per- an alcoholic and ceived Plaintiff as Intern., Cir.2001); Forg AM Inc. v. Int’l precluded alcoholism ceived that (6th ing Equip. Corp., 982 F.2d “ job. performing his competently 52(a)). Cir.1993); P. Fed. R. Civ. ‘This perception, on Defendant re- Based reviewing court standard does not entitle a garded Plaintiff as disabled and used findings of fact to reverse a district court’s subsequently evidence of discovered it reviewing because the court is convinced ” un- justify her Plaintiffs deficiencies differently.’ would have decided the case discharge. for his lawful basis (quoting Equal Employment Opportu Id. Paint hearing damages, nity Yenkin-Majestic Comm’n v. subsequent After a (6th Cir.1996)). pay Corp., award of F.3d the court ordered a back “[Wjhere $425,553.61, $16,787.86 permissible ways are two pre-judg- there plus evidence, the district court’s pay. ment interest on the back The court view in one of $250,000 compensatory decision to view the evidence also awarded distress, ways opposed those to the other cannot damages for Moorer’s emotional $17,732.72 (citing Yenkin-Majes prejudgment interest. be clear error.” Id. plus

479 City major activity v. Bessemer in the (citing working.” tic Anderson life of of 564, 573-74, City, 1630.2(j)(3)(i). § 105 S.Ct. U.S. C.F.R. (1985))). 84 L.Ed.2d 518 We review the of law de novo.

district court’s conclusions disability 1. Moorer’s status under 616). (citing Burzynski, 264 F.3d at Id. “regarded as” definition The first issue is whether the district Analysis B. correctly court found Moorer to be dis entities,” prohibits The ADA “covered meaning abled within the of ADA. Baptist, discriminating against like “a district court found that Baptist “regard qualified disability individual with a be- having physical ed” Moorer as a or mental disability cause of the of such individual.” impairment 4—that substan —alcoholism 12112(a). § 42 U.S.C. Unlawful discrimina- work, tially ability and, limited his firing tion includes an individual because of therefore, Moorer satisfied the third defi 12112(a). § disability. Id. “The term disability nition of set forth at 42 U.S.C. disability’ with a ‘qualified individual 12102(2). § According to the Supreme who, disability means an individual with a Court: accommodation, with or without reasonable apparent There are ways two in which can perform the essential functions may individuals fall statutory within this employment position that individual such (1) definition: a entity covered mistak- 12111(8). § holds or desires.” Id. Under enly person physi- believes a has a (1) ADA, “disability” a a means either cal impairment substantially- limits physical impairment or mental that sub- (2) major activities, one or more life or stantially major limits one or more of the entity mistakenly covered believes (2) individual; life activities of such a rec- actual, nonlimiting impairment sub- (3) ord of an impairment; being such or stantially major limits one or more life regarded having impairment. as such an cases, necessary activities. In both it is 12102(2). § 42 U.S.C. entity that a misper- covered entertain According regulations, to the ADA ceptions about the individual—it must major activity life means “functions such believe either that one has a substantial- oneself, caring performing as manual ly limiting impairment that one does not tasks, walking, seeing, hearing, speaking, substantially have or that one has a breathing, learning, working.” when, fact, limiting impairment major § C.F.R. “When the life 1630.2®. limiting. impairment is not so activity under consideration is that of Sutton, working, statutory phrase 527 U.S. at 119 S.Ct. 2139. ‘substantial- minimum, ly requires, limits’ at a that The district court reached its conclusion first, plaintiffs allege they breaking analysis are into parts: unable work its two “ jobs” a broad or ‘a range Baptist regarded class broad whether Moorer as hav- jobs physical impairment, various classes.’” Sutton v. or mental Lines, Inc., second, Baptist mistakenly United Air re- U.S. whether (1999) 2139, 144 garded impairment substantially 119 S.Ct. L.Ed.2d 450 § (quoting 1630.2(j)(3)(i)). limiting major working, 29 C.F.R. activity “The life inability perform single, part analysis it particular when was not. Each of the not does constitute a substantial limitation is discussed below. question Georgia-Pacific Corp., “There is no that alcoholism is an 306 F.3d (1st Cir.2002) cases). impairment Bailey (collecting ... under the ADA." v. *11 administrator, alone, ability per- let his to not commit court did

The district jobs. range class or We form broad it concluded that when clear error disagree. physical or men had the believed Moorer per After of alcoholism. impairment tal that Hill was substantial evidence There to be alcohol ceiving what she believed alcohol- perception of Moorer’s linked her 22, 1997, Hill, July breath on Moorer’s job his as a inability perform to his to ism superiors told her via supervisor, August hospital administrator. that Moore’s August 1997 e-mail an Hill to Moorer re- 1997 memo that sent “good was a indica apparent intoxication expecta- to his “failure to meet ferred issue,” broader, lon[g] term tor of [a] normally hospital with the tions associated a minimum 3-4 weeks she recommended in responsibilities BHCC.” administrative obtaining superi him. After her leave for stated, you Hill I find that further “While approval, ors’ demanded to correct the noted have made efforts duty undertake a fitness for examination improve- deficiencies and have made some face immediate termination. La or else areas, a lack of ments in some there is ter, thought that she he Hill told Moorer elimination of progress substantial toward an alcoholic and also called Moorer’s was added). Hill (emphasis causes.” root her that alcoholism is an wife and told examples several of these defi- then listed incurable, deadly disease and that Moorer added, “In an effort to utilize ciencies and Hill fired would never be cured. When to evaluate these all available resources Moorer, told him that his work-related she issues, a man- I have made performance by his disease of problems were caused Concern, EAP, for agement referral to alcoholism. any resulting plan fitness assessment and of Hill’s memo implication of action.” The

This evidence was more than sufficient that a “root eause[ ]” was that she believed that Bap- for the district court to conclude might performance problems of Moorer’s tist, Hill, perceived via Moorer to be an to through uncovered his referral CON- be early July alcoholic 1997. It as as perceived problem. for his alcohol CERN court, province within the of the district as that, Consistently, Moorer testified fact, reject explana- Hill’s finder of termination, time Hill informed him of the solely poor tion that on Moorer’s she relied perform- she told him that she believed his performance requiring work to have caused his “dis- problems ance were recommending his ter- treatment and then ease.” ground explana- mination on the that her credibility” of “no “lacking tion was evidence, on this the court Based

value.” “Hill clearly finding not err in did that Plain acted in accord with her belief significant The more issue is whether alco as a tiffs deficiencies were related his Baptist perceived Moorer’s alcoholism Hill came to the conclu ability limitation on his to holism.” Because substantial above, work, which, perform sion that Moorer could not requires as noted administrator, and hospital him un- of a be showing Baptist perceived as duties jobs poor performance Hill linked his able to work in a broad class of or cause alcoholism, for the jobs his it was reasonable range broad various classes. regard to conclude that Hill Baptist argues that the court erred district court district having impairment Moorer as finding Baptist regarded Moorer as ed ability perform ability per- substantially limited his significantly limited his job. hospital particular form even his

Still, from find- it does not follow these a. Role of in alcoholism Moorer’s a favor- ings that Moorer was entitled to discharge on his ADA claim. be judgment “[T]o able above, As noted there is substantial evi- substantially limited in the regarded as dence that Moorer’s medical status played major activity working, one must be life significant a role in Baptist’s decision to from more than a regarded precluded fire him. Prior to Hill’s perception of job.” Murphy v. United Parcel particular breath, alcohol on Moorer’s and her ensu- Serv., 527 U.S. S.Ct. alcoholic, that suspicion he was an (1999). re- 144 L.Ed.2d 484 Moorer was Moorer’s termination was not imminent. quired Baptist regarded that show alcoholic, regarded Once Hill Moorer as an jobs to work in a broad class of as unable however, recommended, prior any she range jobs classes. or a broad various Moorer, medical evaluation of that he take easy This is no task. an extended leave of absence for rehabili- Co., Campbell Soup In Ross v. During tation of his alcoholism. that leave (6th Cir.2001), this 237 F.3d 701 Court purportedly Hill per- uncovered additional employ recognized “[p]roving that that an formance that deficiencies led Moorer’s major termination, regarded ee is as disabled the life while he was still on leave. activity working plaintiff takes a to the Hill told Moorer that his alcoholism was of the ADA” and that this farthest reaches performance problems. the cause of his entirely in question is “embedded almost Accordingly, there is substantial evidence subjective employer’s state of mind.” played that Moorer’s medical a sig- status “extraordinarily Id. at 709. This task is Baptist’s nificant role in decision to fire “it safe difficult” because to assume Ross, him. 237 F.3d at 709. employers regularly not do consider jobs

panoply employees of other their justifications b. Pretextual perform, certainly could do not often discharge create of such consider direct evidence Id. The that court ations.” Court therefore held district found substantial evi- “where there is substantial evidence that dence the record that concocted played sig pretextual justifications an individual’s medical status a for Moorer’s ter- First, employer’s nificant in an to mination. Hill testified that Moor- role decision individual, part, fire that combined with- evi termination was on a er’s based] fire mar- employer pre report dence concocted written the state justification firing, purportedly stating textual for that shal’s office that there inquiry”— BMH-Tipton. need for more extensive factual was a fire hazard at i.e., by report prior a trier fact—“into that she reviewed this whether claims employer engaged stipu- tc termination. It was unlawful discrimina Moorer’s' Therefore, trial, however, following tion is acute.” Id. lated at especially search, fire office “was un- company pre “evidence that the created marshal’s any that such an in- plaintiffs] firing textual reason for able to find record [the only it occurred.” The two written may prove regarded spection tend to [the safety in the plaintiff] employee.” reports inspections as a disabled Id. at of fire below, application of record indicate that the fire marshal con- 708. As discussed September principles inspections the Ross to the facts of this case ducted Moorer’s ter- prove regarded tends December after lack Baptist acknowledges mination. Moorer as disabled. survey- could have had with report pre-dates Moor- of written conversations prior ors to Moorer’s termination. termination, rec- explains but er’s evidence that the fire replete ord is Third, Hill claimed that her termination *13 prior existed to Moor- hazards themselves based,' part, recommendation was on the howev- explanation, termination. This er’ August from Dr. letter Cannon. er, away testimony explain not Hill’s does However, Moorer’s name is not mentioned fire report on a written of she relied letter, body in the of the and Dr. Cannon hazards. that the letter was not intended to testified a criticism of local administra- be Moorer’s Second, ter- Hill testified Moorer’s BMH-Tipton, tion of at but was “directed based, in part, inspections mination was on system large.” at Dr. further Cannon BMH-Tipton facility of conducted Hill spoke testified that never about the Tennessee Health Facilities Commis- prior of this letter to the date Moorer’s prior sion to the date of Moorer’s termi- discharge. nation, September 1997. She claimed Baptist counters that the issues raised representatives” of the “[a]uthorized necessarily not Dr. Cannon’s letter were reported Commission numerous issues issues, corporate but involved the condition facility. Hill concerning deficiencies at the hospital, and maintenance of the issues reports writing testified that these were Bap- that were responsibilities. Moorer’s on the corner of’ desk and “were Moorer’s Hill tist adds that and others had a meet- to termi- prior and that she reviewed them staff of BMH-Tipton, with members nating Although him. the Commission did Cannon, including days Dr. a few after survey BMH-Tipton, conduct a of the sur- receiving August Dr. Cannon’s vey September not until conducted province letter. It within the of the .was Moorer’s termination. after court, however, district as the finder of fact, testimony to credit over Dr..Cannon’s persuasive response has no Baptist’s explanation. inconsistency, point this other than to out spoken inspectors prior that Hill had with In disputing addition to of the several argument, to Moorer’s termination. This specific Hill grounds cited for his termi- however, away explain does not Hill’s testi- nation, argues that he was selected mony that Moorer’s was based termination for termination before Hill discovered the in part reports on written from the Com- depth performance problems of Moorer’s mission, reports she could not have re- while he was on medical leave. ceived until after the termination decision wife testified that after she told Joe argues was made. also that “Hill Swaim, BMH-Tipton a member of the unequivocally testified trial that she directors, board of that Moorer’s bosses spoke surveyors from the Commis- just had visited him at Talbot Recov- sion about at the hospital prior deficiencies him, ery respond- Center and fired Swaim 18[, September Baptist’s Reply ed, 1997].” “I They know all it. told us. all about 594). However, Br. at 21 (citing J.A. it they about before ever sent him.” portion sup- cited of the record not does denied making this statement and Swaim Indeed, port this Hill assertion. admitted stated he was never told advance survey at trial that the itself was conduct- going, Bap- that Moorer was to be fired. September days ed on explains twelve tist the statement Mrs. (J.A. 585-87.) after Moorer’s termination. Moorer attributed to “could Swaim have Thus, record, it fact is unclear how referred to the that he knew there ability jobs perform and that Moorer would be either a class of or problem awas jobs classes, facility, range rather than that a broad various away from the “ noting may that a court consider ‘the Baptist’s be terminated.” Moorer would jobs types utilizing number and similar Although Baptist’s Br. at n. 20. Reply abilities, training, knowledge, skills or characterization of Swain’s statement area, that geographical within from which only it is not the reasonable plausible, disqualified the individual is also because court, district as fact- interpretation. The (class ”) (em- impairment jobs)’ finder; to infer from this was entitled omitted; phasis quoting 29 C.F.R. statement that Swaim knew that Moorer § 1630.2(j)(3)(ii)(B)). prior would be terminated to Moorer’s ad- *14 Recovery the Center. mission to Talbot type The Henderson case illustrates the Bap- This inference tends to undermine of evidence Moorer needed to submit. In subsequently assertion that discover- tist’s Henderson, a on an assembly welder line performance Moorer’s problems ed with injured her back and was restricted from led to his termination. stooping bending or lifting from 25 pounds frequently pounds or 40 infre- Regarded perform c. as unable to Henderson, quently. at F.3d jobs range of a class of or broad Company policy prohibited an employee

jobs returning to work unless he or she evidence, company’s The above-described was “100% healed.” Id. The plant manager that Moorer’s alcoholism testified that there would suggests which job plant plain- not be one at the that the significant discharge in his played role “bump tiffs medical restrictions would not Baptist’s and that several of reasons for into.” Id. at 651. terminating pretextual, Moorer were tend that him prove Baptist regarded ed to as that This Court found one reasonable Ross, 708; however, disabled, 237 F.3d at of reading plant manager’s the view “is prove in itself to that it was not sufficient that he physical considers .someone substantially lim Baptist regarded as doing to ‘make it’ facto- restrictions unable Rather, ability his to work. ited in work, ry even if it is within the technical proffer showing still needed to evidence restrictions, the worker’s requirements of regarded that him as unable to risky that considers it too or he and/or range jobs, of perform a broad or class employ to workers with whom problematic un meaning Baptist perceived that him as push to be cautious not to much he has general of perform type able to the same beyond the functions of their essential geographic in the area. See work same job.” then held that there Id. Court Ardco, Inc., Henderson v. 247 F.3d fact as to genuine was a issue of material (6th Cir.2001) (noting in 653 n. employer perceived plain- the the whether “regarded ADA as” case that it would be substantially ability in her tiff to be limited plaintiffs prove at trial to that she burden jobs class of because perform larger to “substantially impaired” perceived effectively treated the “100% healed rule” ability perform employment in other her in a manufactur- “incapable her as of work experi age, suitable to her education and In other ing operation.” Id. at 651-52. area); geographic words, in her perception ence and available the about the employer’s Inc., Enters., ability any Burns v. F.3d work at plaintiffs perform Coca-Cola (6th Cir.2000) (looking competent to the evi- plant also constituted employer’s perception about regulations guidance EEOC for dence the the same plaintiffs ability perform meaning of a substantial limitation on the anywhere jobs. This is buttressed by of work else. See inference broad class (“Plaintiff belief, apparent has she brought developed id. at 654 forward Hill’s which defendant perceived any before she had substantiation of evidence Moor- at job alcoholism, for her Ardco no er’s had a drink there was that Moorer an indication plant, gives problem the short-term would suitability about her employer’s perception preclude working him from at all for four relevantly employ- for similar a class of long-term would weeks kill ment.”). Indeed, him. Hill’s belief Moorer’s inevitably incurable alcoholism would re that, plaintiff like We hold permitted sult his death inference Henderson, presented evidence regarded that Hill substantially Moorer as Baptist perceived him as in showing that any ability perform limited life capable broad class of performing all, activity major alone the let life Baptist’s perception work virtue of activity of working. Heyman v. inability perform managerial Moorer’s Cf. Queens Village Comm. Mental Health The district found Baptist. work for court for Program, Jamaica Adolescent Comm. diverse, duties were re *15 Cir.1999) Inc., (2d (revers 68, 198 F.3d that quiring general skills could be used ing grant summary judgment of for em a of fields.5 court noted range broad ployer because a reasonable trier of fact required that of a the “skills Plaintiff as could regarded conclude that defendants easily are hospital administrator identified plaintiff a suffering physical as from high-level necessary manage as for most impairment (lymphoma) significantly that regardless of field. Ac positions,” ment work; restricted ability concluding his court, cording to the because “Hill believed jury that might find that defendants’ expe substantially that Plaintiffs alcoholism lim having rience of allowed another employee ited at ability Baptist, his to work she lymphoma recognized working with to continue must also have that such an impairment precluded resulting have him his all of inability perform would his jobs.” a performing broad class of duties led that defendants to conclude disease, plaintiff, the same afflicted with Henderson, with the district Consistent would likewise be unable function fully essentially found that Baptist per- court workplace and soon would become liabili perform any as unable to ceived Moorer ty). that Accordingly, we hold the district appropriate giv- that would for him be court did not commit clear error when it knowledge, en training, his skills and abili- that Baptist regarded found Moorer as Baptist ties. The fact that believed that disabled when it terminated him. made Moorer’s alcoholism him unable to perform hospital job, administrator 2. Causal connection between Moor- range required manageri- which a broad perceived disability er’s and his skills, al pennits reasonable inference termination Baptist believed Moorer’s alco- incapable We hold that perform- holism rendered further district number of managerial clearly finding a substantial court did not err in general budget facilitating process, positive The court found that re- "Plaintiff's sponsibilities Baptist planning environment, included ensuring proper work level affairs, coordinating hospital reporting re- services, coordinating and mix of risk man- quirements departments, different between di- agement, creating continuing pro- education recting programs, serving human resource grams, cost-saving spearheading tech- management, liaison between staff and en- niques.” suring regulatory compliance, coordinating satisfied his ultimate burden U.S. S.Ct. 84 L.Ed.2d (1985)). terminated Moorer proving disability. 42 perceived of’ his “because 12112(a). above, Analysis § As noted there B.

U.S.C. evidence that at least some significant was Baptist requests a remittitur of for Moorer’s termination of the reasons $250,000 the district award court’s v. Elec. pretextual. See Monette were damages, claiming emotional distress Sys. Corp., Data 90 F.3d 1185-86 dispropor the award was excessive and Cir.1996) (6th (holding plaintiffs that the injury allegedly tionate to the that Moorer prove in an ADA case is to that the burden sustained as a result of his unlawful termi pretext is a for un- employer’s explanation nation. hold that the We award was not discrimination). sig- lawful There also grossly clearly so excessive as to be erro alcoholism, nificant evidence that Moorer’s neous. erroneously perceived to be which “[D]amages for mental and emo substantially limiting impairment, actual- presumed, tional distress will not be termination. ly motivated his ” proven ‘competent must be evidence.’ disagree Baptist’s contention We Turic, supra, (quoting 85 F.3d at 1215 require court failed to the district Carey Piphus, v. n. U.S. 263-64 & satisfy showing his burden of Moorer to (1978); 98 S.Ct. 55 L.Ed.2d 252 court pretext. pre- The district made its Div., citing Rodgers Body v. Fisher Gen. findings primarily its discussion of text (6th Corp., Motors 739 F.2d 1102 Cir. *16 Baptist regarded Moorer as dis- whether 1984)).6 However, injury may emotional Ross, abled, which, light proper. of was proved support. be without medical Id. on those The district court then relied (citing Moody Pepsi-Cola v. Metro. Bot findings support its conclusion Co., (6th 201, Cir.1990); 915 F.2d 210 tling disability. Moorer was fired because of his Airlines, v. 660 Williams Trans World reasons, For these we affirm the district (8th Cir.1981)). 1267, plain F.2d 1273 “A finding disability discrimination. court’s of testimony, along tiffs own with the cir case, particular cumstances of a can suffice III. plaintiffs to sustain the burden Damages Compensatory regard.” (citing Meyers, supra, Id. 14 1119). F.3d at A. of Review Standard testimony, combined with finding trial court’s of fact on the Moorer’s own A treating physician, not re that of his wife and his compensatory damages issue of “is competent it evidence of Moor- plain versible error ‘unless manifests constituted stemming injustice, grossly or is so excessive as to be er’s severe emotional distress ” clearly erroneous.’ Turic v. Holland from his termination. Moorer testified (6th Inc., 1211, “devastating” F.3d 1215 that his termination had a Hospitality, 85 Cir.1996) Meyers City impact v. on his life and made “de- (quoting Cin of (6th cinnati, Cir.1994); blow, 1115, pressed.” psychic 14 F.3d 1119 To deal with the from a clinical City City, sought Anderson v. Bessemer 470 Moorer treatment case, pensatory damages Although we under the ADA and Title Turic was Title VII applies assume the same standard 42 VII derives from the same source. See damages 1981a(a). emotional distress under the ADA § U.S.C. statutory authorization for com- because (6th Cir.2001). Dist., Moor- 270 F.3d Dr. Dennis Wilson. psychologist, Summary judgment granted must be if the that he has been suffer- er’s wife testified himself, and evidence “show that there is pleadings he isolates depression, any no issue as to material fact genuine Dr. testified and he has insomnia. Wilson devastating, moving party and that the is entitled to a termination was Moorer’s anger judgment and de- as a matter of law.” R. Civ. causing feelings betrayal, Fed. 56(c). dispute P. A a material fact is significant loss of over pression, as well .as jury if only “genuine self-worth issue” a reasonable self-esteem because Moorer’s nonmoving party find for the on that completely up professional tied in his could “was Cockrel, (citing issue. 270 F.3d at 1048 life.” Dr. further testified Wilson Inc., suffered, anxiety Liberty Lobby, Anderson v. 477 U.S. marriage Moorer’s increased, “exces- 106 S.Ct. 91 L.Ed.2d 202 experiencing and he was (1986)). reviewing court found In the district court’s thoughts.” sive The district grant summary judgment, termination for alcoholism this Court public it became must view all the facts and the inferences humiliating because community. light drawn therefrom in the most favor knowledge his small nonmoving party. (citing able to the Id. ample In evidence of addition to this Matsushita Elec. Indus. v. Ra Co. Zenith distress, we also note severe emotional Corp., dio 475 U.S. 106 S.Ct. compensatory damages award was that the (1986)). 1348, 89 L.Ed.2d 538 less than half of'Moorer’s award of eco damages. light extremely nomic In of the Analysis B. review, there no deferential standard of basis to hold that the district court’s award eligible employee The FMLA entitles an $250,000 to Moorer for emotional dis up to take to a total of workweeks of Lilley v. grossly tress was excessive. Cf. any during period leave 12-month “[b]e- (6th F.2d Corp., BTM Cir. cause of serious health condition that 1992) $350,000 mental an (holding employee perform makes the unable to guish age award for discrimination was *17 position employ- functions of the of such within the realm of other verdicts 2612(a)(1)(D). § ee.” 29 U.S.C. “The cases) (cita upheld have been similar term ‘serious health condition’ an means omitted); Corp., tions Miller v. Alldata 14 illness, injury, impairment, physical or or (6th 2001) 457, Fed.Appx. July Cir. mental condition that inpatient involves... (affirming district court’s denial of motion hospital, hospice, care in a or residential $300,000 for remittitur of for emo award 2611(11)(A). facility.” § medical care Id. plaintiff tional distress where the recov eligible employee An takes FMLA who $16,000 only ered damages economic for entitled, leave is on return from such claim). gender According discrimination leave, by “to employer be restored the ly, affirm we the award. position employment the held the employee when the leave commenced” or

IV. equivalent position “to be restored to an benefits, equivalent employment pay, with FMLA Claim and other employ- terms conditions of A. Standard of Review 2614(a)(1). § Id. In ment.” addition to providing rights This Court reviews de novo a district substantive to leave and reinstatement, grant summary judg- court’s decision to the FMLA makes it unlaw- with, Shelby County employer ment. Cockrel v. Sch. ful for an “to interfere restrain, prior of or the to his leave and had worked at deny or the exercise least 1,250 exercise, during previous hours 12 months. any right provided attempt 2611(2) 2615(a)(1). § (defining “eligible § 29 U.S.C. em- Id. under” the FMLA. Further, ployee”). Baptist conceded for and dis- prohibits also retaliation FMLA summary purposes judgment that Moor- for against employees oppos- crimination had a health er serious condition and that under the FMLA or practices unlawful stay for an in-patient his leave charge participating or filing for an FMLA Recovery Center Talbott was FMLA inquiry related to the proceeding in a or 2611(11) (de- § qualifying reason. See id. (b). 2615(a)(2), § FMLA. Id. fining health “serious condition” to include complaint Count VI of Moorer’s physical a or mental condition that involves alleges denied the sub inpatient hospital care at a or residential position to return to the right stantive facility). medical checking into the Tal he had held before In a single sentence a foot Center, in Recovery violation of bott motion, summary judgment note of its explained: has FMLA. As Court Baptist further asserted that Moorer nev interferes with the employer If an requested er or discussed FMLA leave leave or right FMLA-created medical To Baptist. the extent this footnote leave, following the to reinstatement argument was an failed to King v. Pre violation has occurred. provide Baptist with sufficient notice of Group, Technical 166 F.3d ferred leave, argument FMLA we find the waived (7th Cir.1999). simply The issue is man appeal perfunctory because employer provided whether the its em argument presented in which the ner forth in the ployee the entitlements set Chrysler Noble v. Motors below. See example, FMLA —for twelve-week Div., (6th Corp., Jeep 32 F.3d taking leave or reinstatement after Cir.1994) (holding that an observation Because the issue is the medical leave. in a court footnote brief filed the district entitlement, employee right to an preserve argument con was insufficient statutory require due the benefit if the cerning any issue on In appeal). satisfied, regardless ments are event, argument is meritless employer. Hodgens intent of the v. discussed below. reasons Dynamics Corp., 144 F.3d General Moorer’s leave was for a seri- Because (1st Cir.1998). condition, required health the FMLA ous Corp., Arban v. Pub. 345 F.3d West him to “make a reasonable effort to sched- *18 (6th Cir.2003). initial 401 burden disrupt so as not to ule the treatment “ ‘establish, by of the preponderance is to unduly operations employer, of the the evidence, that he is entitled to the benefit subject approval the of the health care to ” v. (quoting he claims.’ Id. Rice Sunrise of’ Moorer. 29 U.S.C. provider (7th Express, 209 F.3d 1018 Cir. 2612(e)(2)(A). argued § not Baptist has 2000)). comply that Moorer failed to with nor can it. The evidence 1. Moorer was entitled to requirement, Whether Baptist fully anticipated that and reinstatement shows lengthy treatment at approved Moorer’s Baptist disputed has not that Moorer Recovery the Talbott Center. “eligible employee” was an under the Therefore, required provide was to FMLA. assume that Moorer Moorer also we notice, days’ not less than 30 Baptist Baptist for for at least months with worked (6th Inc., 149 F.3d begin, Props., of v. JH the leave was the date before “ Cir.1998). Rather, question critical ‘[t]he leave for a serious to take his intention imparted to the is whether the information condition, if except that the date health reasonably ap employer is sufficient begin required leave the treatment request to take prise employee’s it of the required was days, than Moorer less 30' ” condition.’ time off for a serious health “practicable.” notice as was provide such Polymers Manuel v. Westlake (quoting Id. 2612(e)(2)(B). chronology § Id. (5th Cir.1995)). 758, 764 Corp., 66 F.3d that there suggests case events" in this Here, obviously of Moorer’s Baptist knew days than 30- between were far less anticipated leave to treat his serious health would' have to knew he date Moorer of alcoholism and that Moorer condition medical leave and take an extended Bap be on leave for weeks because would for that leave. actually departed date he participate tist demanded Moorer suggests that August 1997 e-mail Hill’s program and fol employee assistance would need to anticipated that Moorer she through low on the recommended course four week leave in take at least a three to hardly complain can of treatment. Hill met order to his alcoholism. .treat lack of of Moorer’s leave. about notice pre- August with Moorer on outlining his Moorer with letter sented rein- Moorer was denied Whether deficiencies, notify- purported performance for reasons unrelated to statement Hill had referred him to Moorer taking FMLA leave (“EAP”) program employee assistance had a Although Moorer substantive any resulting assessment and “fitness a. completion right upon to reinstatement action,” threatening Moorer plan, of center, recovery of his treatment at the if he failed to meet with with termination “ right not em- ‘[A]n absolute. 20, 1997. August EAP counselor on ployee requests who FMLA leave would assured Moorer he-would also greater protection against have no his or he returned from alcohol have a when employment being her terminated for rea- rehabilitation, indicating that Hill further or her re- sons not related to his FMLA having to take an ex- anticipated Moorer submitting quest than he or she did before leave. met with tended medical ” Arban, request.’ 345 F.3d at 401 20, 1997, August who counselor Valley v. (quoting Gunnell Utah State the Talbott recommended treatment (10th Cir.1998)). Coll., 152 F.3d Recovery August On Center. dismissed, lawfully may employee “An be recovery center flew to preventing exercising him from his statu- stayed These for five weeks treatment. tory rights to FMLA leave or reinstate- strongly suggest that Moorer had facts ment, only if the dismissal would have but medi- only days’ two notice of his extended regardless employee’s occurred of the re- leave, and, therefore, required he was cal quest taking for or of FMLA leave.” Id. “practicable” notice provide “ Gunnell, Thus, supra). ‘if the (citing only. employer employee *19 claims that the would clearly that The facts show Moor- discharged ... the in employee, have been provided Baptist “practicable” er no protect- to establish the entitlement order 2614(a)(1), must, § FMLA leave. The in impending by tice of his ed the course of require employee right, not an convince the trier of establishing FMLA does the notify contrary by mention the FMLA name when fact that the evidence submitted that employer the is insufficient and the ing employer an of FMLA leave. Brohm (cid:127) employee discharged Baptist perceived would not have been Evidence that and ” considered Moorer’s ... if had not taken FMLA leave.’ well he alcoholism Rice, claims it knew about it. (quoting supra). Id. before though yet Even Moorer had not been evaluated, medically August on genuine hold that there is a We 1997, Hill sent an e-mail to Robbins issue of material fact as to whether Moor- Braughton and indicating Moore’s regard occurred er’s dismissal would have apparent during meeting intoxication taking less of his of FMLA leave. The July on a “good indicator Arban, supra, decision in is instructive. broader, lon[g] [a] issue” and term There, West, employer, presented the con recommending a minimum 3^4 weeks siderable evidence the decision to ter of leave for him. The district court Arban, plaintiff, minate the had been made remarked, logic defies basic “[I]t leave, before Arban went on medical but person reasonable and rational could that his actual termination had been de determine that a man needs to be Arban, holidays. ferred until after the placed on leave in a pro- rehabilitation that, F.3d at 401. The Court observed at gram for at least 3-4 weeks based trial, upon “Arban cast doubt both the observation, upon a single single of a timing of reasons for the decision the which, worst, only incident would quoted to terminate him.” Id. The Court indicate that Moorer had been drink- which Seventh Circuit case held ing only on that occasion.” timing of this .decision “the could lead a (cid:127) Evidence that Hill had n dissembled fact employee finder to infer when she claimed that her recommen- would not have been fired absent her tak dation to terminate Moorer was based (if, example, supervisor of leave for part on a State Tennessee Heath problems who had been aware of with an Care Report Facilities Commission employee did not decide to fire the em alleged Tip- failure of leave, until ployee super she took and the hospital pass ton a State Ten- firing visor based the on the incidents of inspection. nessee Fire Marshal’s r employe already which the had been in- summary judgment Evidence aware).” (quoting Id. at 402 Kohls v. Bev record indicated that the of Ten- State Wis., Inc., erly Enters. 259 F.3d had not conducted these in- nessee (7th Cir.2001)). Because the evidence spections termi- prior Moorer’s permitted “differing Arban inferences” remarked, nation. The district court timing about the and reasons for his termi apparent misrepresentation by “This nation, the Court held that “sufficient evi Hill... ques- raises the most serious presented jury dence was at trial for mind of the court.” tions conclude that West denied Arban his sub (cid:127) performance-related Evidence that the right stantive to reinstatement.” Id. discharge were reasons n Arban, by the Dr. undermined significant As in there was evi- affidavit of Cannon, who stated his com- casting upon dence doubt record plaints concerning management were for Baptist’s reasons decision to terminate not at Moorer. Indeed, directed prompted Moorer. this evidence (cid:127) deny summary judg- the district court to hospitals Evidence that the had “su- ment favor of on Moorer’s ADA perb profits’’ during Moorer’s tenure administrator, ADEA opposed previ- claims. This evidence included as following: years. ous *20 ADEA and Em- might that violate both the the Baptist shows The also record per- Security Moorer’s many alleged ployee aware of Retirement Income Act of (“ERISA”). prior to his FMLA Paper v. E.g., formance deficiencies Hazen Co. leave, casting doubt on the tim- thereby Biggins, 507 U.S. S.Ct. reasons ter- (1993) (“Nor for his purported the do we rule L.Ed.2d 338 January 1997 memo- mination. possibility liability the of dual out under supervisor former randum from Moorer’s ADEA where the ERISA the decision performance same many of the discussed the employee to fire was motivated both justify now cites to Baptist deficiencies by pension his employee’s age termination, including customer com- his status.”). Likewise, discharging a disabled physician con- plaints, management, FTE employee complaining being about not for issues, communication. tract and staff his provided pay, unlike similar-' overtime Baptist it did not undisputed Yet is co-workers, ly-situated, non-disabled could fire immediately intend for violate both Fair Labor Act Standards anticipated until it was these deficiencies case, And, and the ADA. in this a fact take a leave to treat his might he permitted finder to infer would be fact that Hill based alcoholism. The Baptist disability harbored animus to- on termination these deficien- Moorer’s Moorer, unwilling ward but was act on cies, others, among but did not decide to him in (by firing that animus violation of until Moorer effectuate the termination ADA) until he was on FMLA leave. leave, a fact in- took could lead finder to manner, By terminating Moorer not fer that Moorer would have been Baptist liability exposed itself to under taking actual of that fired absent his statutes, both and therefore Moorer was fact, FMLA This combined with leave. liability entitled to theories of present both had called several of fact that Moorer to the fact finder. question, into termination reasons shows that there was sufficient evidence V. presented factfinder for the to conclude denied Moorer his substan- Baptist Conclusion tive to reinstatement. For these right reasons, For all AF- foregoing we reasons, hold that the district court we FIRM the in favor of judgment Moorer on summary erred in granting judgment claim, ADA his but REVERSE district FMLA claim. on Moorer’s court’s FMLA claim. dismissal We not believe that Moorer’s claim do reinstatement because he was denied BOGGS, Judge, concurring in part Chief he took leave is inconsistent with FMLA dissenting part. finding court’s after trial that district I Judge Clay’s concur in well-reasoned per- because of a terminated III, opinion concerning II and Parts disability, ceived in violation of the ADA. Moorer’s claim under the Americans with nothing There remarkable about an em- is However, Disabilities Act. I dissent from discharging ployer wrongfully employee overturning opinion, Judge Part IV the grounds illegal on are more under summary judgment Donald’s example, than statute. For the termi- one Family claim under the and Medical Leave year-old nation woman violate of a 70 could if, My Act. reasoning simple: as the Rights both Title of the Civil Act of VII affirms, our court ageist employer ADEA. An district court found and and the illegal year-old who because of dis- employee terminates a 64 was fired *21 claim, nation but perception on the would not have an FMLA crimination based disabled, can it also be that he he was how claim. The record before us supports an against here, of retaliation equivalent was fired because determination and I fact, In taking him for FMLA leave? respectfully therefore dissent from the there is not a shred evidence his panel’s reinstatement of the FMLA claim. anything taking to do with his firing had

FMLA The FMLA leave was di- leave. employer,

rected and Moorer had objection of the leave in taking

no to the fact, In he seems to have believed

itself. by taking the leave and other actions Employee Program,

under the Assistance job. taking steps he would be to retain his America, UNITED STATES of majority’s reasoning point The on this Plaintiff-Appellee, Ar- comparison relies on to cases such as v. firing for a given ban where the reasons no other pretextual, were relevant MURDOCK, Defendant-Appellant. Seth occurring, other than the tak- events were No. 03-1811. ing of FMLA leave. Under such circum- stances, an inference sufficient to defeat Appeals, United States Court of drawn, summary judgment might be based Sixth Circuit. on events “in connection with” the FMLA Argued: Oct. 2004. leave. Decided and Filed: Feb. This not at all the situation in the only instant “connection” with case.

the FMLA leave is that Moorer was on

FMLA improperly leave when he was fired

for other reasons. Moorer has never al-

leged any causal connection between his leave, taking

termination and his FMLA noted, pre-

and as the district court has

sented no evidence of such a connection.

Thus, no reasonable finder of fact could

infer from the evidence before the district any

court that Moorer’s termination was in

way taking related to his FMLA leave. analogy,

As an consider the situation of employee who takes FMLA leave for reasons,

clearly legitimate medical without

any by anyone. complaint or concern leave, employee’s super-

While on that by with a replaced person long

visor is racism,

history of who proceeds fire the

employee pretextual grounds. Under circumstances, employee

those would

have a meritorious Title VII race discrimi-