Carmona v. Sw. Airlines Co.

• Decision Date: 22 April 2010
• Docket Number: No. 08-51175.,08-51175.
• Citation: 604 F.3d 848
• Parties: Edward CARMONA, Plaintiff-Appellant,v.SOUTHWEST AIRLINES COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

604 F.3d 848

Edward CARMONA, Plaintiff-Appellant,v.SOUTHWEST AIRLINES COMPANY, Defendant-Appellee.

No. 08-51175.

United States Court of Appeals, Fifth Circuit.

April 22, 2010.

COPYRIGHT MATERIAL OMITTED

John F. Melton (argued), Melton & Kumler, LLP, Austin, TX, for Carmona.

Lacey L. Gourley (argued), Bracewell & Giuliani, L.L.P., Austin, TX, Natalie C. Rougeux, Reagan, Burrus, Dierksen, Lamon & Bluntzer, New Braunfels, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.

GARWOOD, Circuit Judge:

The motion for rehearing of defendant-appellee Southwest Airlines Company is overruled, the prior opinion issued herein March 22, 2010, is hereby withdrawn and the following opinion is hereby substituted for it, viz:

Plaintiff-appellant, Edward Carmona, sued defendant-appellee, Southwest Airlines Co. (Southwest), claiming that the termination of his employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). The case was tried before a jury, which found that Southwest had discriminated against Carmona because of his disability and awarded him $80,000.00 in lost wages. The jury found no liability on Carmona's Title VII claim. The district court accepted the jury's verdict on Carmona's Title VII claim, vacated the jury's verdict on Carmona's ADA claim, and granted judgment as a matter of law to Southwest. Carmona now appeals. For the following reasons, we reverse in part, vacate in part, and remand.

FACTS AND PROCEEDINGS BELOW

Carmona was diagnosed with psoriasis when he was twelve or thirteen years old. Psoriasis is a skin disease characterized by thickened patches of inflamed, red skin, often covered by silvery scales. American Medical Association Encyclopedia of Medicine 830 (Charles B. Clayman ed., Random House 1989). Although individual attacks of psoriasis can be completely relieved, the disease itself is not usually curable, and it tends to recur in attacks of varying severity. Id. Carmona began working as a flight attendant at Southwest in 1991.

In 1998, Carmona was diagnosed with psoriatic arthritis, which is a condition that develops in about thirty-five percent of people who have psoriasis. Psoriatic arthritis causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of the skin. During flare-ups of his psoriatic arthritis, Carmona cannot walk or move around without great pain. It also makes it harder for him to sleep. Carmona's psoriatic arthritis flares up three or four times every month, and each flare-up lasts for three or four days. In other words, Carmona spends anywhere from about one-third to about one-half of each month unable to move without a great deal of pain. He filed for intermittent Family and Medical Leave Act (FMLA) leave so that he could be excused from work during these flare-ups. Southwest's third-party FMLA administrator, Broadspire Administrator Services, Inc. (Broadspire), granted this leave in 1998. Broadspire renewed the leave periodically until April 2005, when it found that Carmona had not worked enough hours to be eligible for renewal.

Southwest's attendance policy is governed by the “Agreement Between Southwest Airlines Co. and The Flight Attendants in the Service of Southwest Airlines Co. As Represented By the Transport Workers Union of America, AFL-CIO” (Agreement). Under the Agreement, flight attendants accrue points for various types of attendance lapses, such as calling in sick, failing to show up for a flight without advance notice, or failing to report to scheduling. Different types of lapses result in the accrual of different numbers of points. For example, calling in sick without a doctor's note results in the addition of a half-point to the flight attendant's record, while a failure to show up without any kind of prior notice to the airline results in the addition of two-and-a-half points.

Points do not remain on the flight attendant's record permanently. All points that are more than sixteen months old are automatically “rolled off.” If a flight attendant does not accrue any points during a calendar quarter, his running total is reduced by two. Both of these reductions are known as “record improvement.” Points are not assigned for absences that result from approved FMLA leave. Also, a flight attendant may use a doctor's note once every calendar quarter to remove all points associated with the ailment that is verified by the note. The flight attendants' records are kept in pencil, because they are frequently altered by doctors' notes, FMLA leave, and pre-termination reviews.

When a flight attendant reaches between five and six-and-a-half points, he is issued a “letter of counsel.” When the flight attendant reaches between seven and nine points, he is issued a “written warning.” When the flight attendant reaches between nine-and-a-half and eleven-and-a-half points, he is issued a “final warning.” Termination occurs when a flight attendant reaches or exceeds twelve points. However, termination cannot occur under the terms of the Agreement if the flight attendant was not timely served with the letter of counsel, the written warning, and the final warning. Additionally, before termination is finalized, Southwest reviews and recalculates the points to verify that the flight attendant has reached at least twelve points. Southwest then issues a termination level notification and holds a fact-finding meeting to discuss the situation with the flight attendant and a representative of the flight attendant's union. After these precautionary steps, if Southwest remains convinced that the flight attendant has accrued twelve or more points, then the flight attendant is issued a termination letter, and his employment is terminated.

Carmona used a doctor's note to cover three absences resulting from a flare-up of his psoriatic arthritis in late April 2005. He contends that he tried to excuse these absences using his FMLA leave but was not permitted to do so by Southwest on the ground that he was not eligible for leave. Southwest's manager contends that Carmona was eligible to excuse two of the three absences with his FMLA leave but chose to use a doctor's note instead.

On April 30, 2005, Carmona's FMLA leave expired. He was unable to renew it, because, according to Southwest and Broadspire, he had not worked enough hours that year to be eligible to renew it. Accordingly, after May 1, 2005, he was no longer able to excuse absences caused by his psoriatic arthritis with FMLA leave. At the end of April, Southwest appears to have believed that he had either six-and-a-half or seven points on his record.

Southwest sent Carmona three letters of counsel on April 7, April 26, and May 4, 2005. In early May, a flare-up of his psoriatic arthritis caused him to miss several days of work. These absences were not excused, because Carmona had been unable to renew his FMLA leave and had already used his doctor's note for the second quarter of 2005 in April. On May 10, 2005, Southwest sent Carmona a written warning.

On June 21, 2005, Carmona sprained his thumb at home. He did not report to work the next day as scheduled, but went to the hospital instead to have his thumb examined. The hospital released him around midnight of June 23. However, he did not return to work until June 27, because of the swelling in his hand. At trial, it was disputed whether or not this absence was in accordance with the hospital's instructions. Carmona testified that he faxed two doctors' notes to Southwest, one of which said that he should return to work the morning of June 23, and the other of which said that he would need to stay home for three or four days. Southwest contended that it had only received the note saying he could return to work the morning of June 23.

On June 23, 2005, Southwest sent Carmona his final warning. It issued him a termination level notice on June 27, which indicated that he had accumulated thirteen points as of June 26. Under the Agreement between the flight attendants' union and Southwest, a flight attendant must be terminated within seven days of reaching twelve points. Kevin Clark (Clark), Southwest's In-Flight Base Manager for Houston, requested an extension of this deadline, because he was unable to find a time within seven days of June 26 when he, Carmona, and a representative from Carmona's union could meet to hold the fact-finding meeting to which Carmona was entitled. At trial, Carmona testified that his union representative told him that he had to grant Southwest the extension or it would terminate him immediately. He decided to grant the extension.

Before the fact-finding meeting, Clark reviewed Carmona's attendance points and concluded that Carmona's record was incorrect, because Clark calculated that it should have reflected sixteen-and-a-half points, instead of thirteen. At the meeting, Clark asserted this view. Stacy Martin (Martin), Carmona's union representative, calculated Carmona's total to be fourteen points. Because the representative of the union and Southwest's manager both agreed that Carmona was in excess of twelve points, he was terminated for excessive absenteeism without further procedure. Carmona testified at trial that, after the meeting, when Martin learned more about the circumstances of Carmona's absences, Martin stated that he did not believe that Clark had told the entire truth during the meeting. Carmona attempted to bring grievance proceedings through his union, but the union determined that his grievance lacked merit. He then obtained counsel and appealed his grievance to the Railway Labor Act (RLA) Board of Adjustment (Board), but the Board upheld his termination.

After his termination, Carmona worked as a customer service agent for Jet Blue airlines on a part-time basis, which did not exceed twelve hours per week. This job required him to stand behind...