By Marjorie Johnson, J.D.
A flight attendant who was fired for dishonesty after reporting that she would be late due to a delayed commuter flight, but then flippantly saying she was “calling in sick” upon learning that she would be deemed a no-show, failed to defeat summary judgment on her FMLA interference and retaliation claims. A federal district court in Texas determined that no reasonable jury could find she gave proper notice of her intent to take FMLA leave because she did not follow Southwest Airlines’ procedures for doing so, despite an eligibility notice sent to her earlier that month related to her request for a few days off due to sinusitis. She also failed to present any evidence of pretext (DeVoss v. Southwest Airlines Co., November 13, 2017, Fitzwater, S.).
The flight attendant, hired in 2014, resided in Tampa and commuted to her base airport in Baltimore. Southwest’s collective bargaining agreement (CBA) with her union contained a points-based attendance policy, which allowed the airline to terminate flight attendants based on accumulated infractions. It also contained a commuter policy, which prevented flight attendants from being assessed attendance points if they were late or missed an assignment because their qualifying commuting flight was full.
Suspicious phone call. On June 24, 2015, the flight attendant called in to report that she would be late due to a delay of her commuter flight. She sought to invoke the commuter policy so as not to receive attendance points, but was advised that her flight did not qualify. Commenting that this was “ridiculous,” she stated that she was then “calling in sick.” When the representative attempted to confirm, she commented, “Guess I have to, huh,” asked “Do you know how many points you get for a no-show versus a sick call?” and when asked if she was sick replied, “Yep.”
Fired for dishonesty. Based on a recording of the call, Southwest commenced an internal investigation, with the investigating manager finding it suspicious that she had initially sought to invoke the commuter policy and then switched to a request for sick leave. Though the flight attendant subsequently presented a June 25 doctor’s note, the manager nevertheless determined that she had committed a dishonesty violation of the work rules and terminated her.
Prior notice of FMLA eligibility. Meanwhile, on June 8, Southwest had sent her an FMLA eligibility notice in response to her request for time off due to sinusitis from June 7 to 11. In the notice, the airline alerted her to the process through which she could secure leave, directed her to submit an FMLA application by June 23, and advised her that failure to do so could result in a delay or denial of leave. However, she neither submitted the FMLA application nor contacted her leave coordinator.
No notice of intent to take leave. The flight attendant couldn’t defeat summary judgment on her FMLA interference claim (let alone was she entitled to it), since she failed to give proper notice of her intent to take FMLA leave by complying with its procedures outlined in the June 8 eligibility notice. Her failure to comply with Southwest’s procedures for requesting FMLA leave precluded her from invoking FMLA protection. Though she was provided with FMLA resources at various points, there was simply no evidence that she ever contacted anyone at Southwest about applying for FMLA leave at any point before she was terminated.
No additional eligibility notice required from Southwest. The court squarely rejected her contention that Southwest had to send her an additional eligibility notice following her June 24 absence. All FMLA absences for the same qualifying reason are considered “a single leave” and the flight attendant claimed she was “still sick” on June 24, relating back to her sinusitis. Therefore, since the company notified her on June 8 of her FMLA eligibility, it was not required to provide her an additional notice for an absence relating to the same qualifying reason.
No pretext. She also failed to cast doubt on Southwest’s assertion that it fired her for dishonesty. The court squarely rejected her contention that its motives for discharging her were irrelevant since she was not required to show it acted with discriminatory to prove interference. An employee cannot defeat summary judgment if the employer articulates a legitimate nondiscriminatory reason for the adverse action, and no triable issue of pretext exists.
The court was also unpersuaded by her argument that pretext could be inferred from Southwest’s failure to properly discipline her under the attendance policy, which specified that she should receive a written warning (not a termination) for failing to show up to work. This argument failed since she was terminated due to dishonesty, not violations of the attendance policy. And while she also attempted to argue that pretext could be inferred from Southwest’s failure to send her an FMLA eligibility notice, her absence was not long enough to trigger that policy. Accordingly, a reasonable jury could only find that, following a thorough investigation, the manager believed for several reasons that she was dishonest during her June 24 call to the Southwest scheduling representative.
No FMLA retaliation. Also tossing her FMLA retaliation claim, the court noted that she failed to address Southwest’s contention that she hadn’t engaged in protected conduct because she did not take FMLA leave and that her failure to request FMLA leave undermined any finding that she was fired for taking FMLA leave. Accordingly, no reasonable jury could find that the company engaged in FMLA retaliation.
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