Pension & Benefits News Fired for dishonestly, SWA flight attendant failed to request FMLA leave, show pretext
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Friday, October 5, 2018

Fired for dishonestly, SWA flight attendant failed to request FMLA leave, show pretext

By Pension and Benefits Editorial Staff

Because a flight attendant never submitted any request for FMLA leave within 15 days from Southwest’s determination of her eligibility, and when she later attempted to invoke first commuter and then sick leave, Southwest ultimately determined she had been untruthful and fired her for dishonesty, the Fifth Circuit agreed that she had not made out an FMLA interference claim. Even if she had provided notice, the appeals court also agreed with the district court that the flight attendant could not show Southwest lacked a good faith, honest belief that she had been dishonest, which was a legitimate, nondiscriminatory reason for her termination.

Required FMLA notice. Although the flight attendant claimed that she had raised material fact issues concerning whether she provided Southwest with required notice of her FMLA leave, the appeals court disagreed. FMLA regulations explicitly permit employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s "usual notice and procedural requirements." Here, Southwest required employees to submit an FMLA application within 15 calendar days of their receipt of an FMLA eligibility notice.

Timeline. On June 7, the flight attendant notified Southwest that she would be missing four days of work, from June 7-11, for personal illness; Southwest provided her with notice of her FMLA eligibility for serious health conditions and a copy of the company’s FMLA notice policies on June 8; she did not submit an FMLA application pursuant to the eligibility notice within 15 days, or by June 23. On June 24, the flight attendant called Southwest to invoke a commuter policy to avoid being assessed points for being late. She was told it didn’t apply to her circumstances, so she said she was calling in sick. That triggered a supervisor to flag the call as suspicious, and her employment was terminated after an internal investigation concluded that she dishonestly characterized her inability to work during that phone call. She never asked about FMLA leave nor submitted an FMLA application at any relevant time.

Should Southwest have done more? The FMLA requires an employer to provide employees with notice of their FMLA eligibility "at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period." But this would not help the flight attendant, noted the court, since she had conceded that the illness for which she received notice of FMLA eligibility on June 8—sinusitis—was the same illness she claimed on June 24–26. Regardless of "how granularly the line for requiring new notifications of FMLA eligibility may be drawn" under the regs, the FMLA notice Southwest provided on June 8 did not need to be re-issued on June 24.

Pretext. As for the district court’s alternative holding that even if the flight attendant had provided Southwest with the required notice, she still failed to raise a genuine material fact issue as to whether Southwest’s proffered nondiscriminatory reason was merely pretextual, her argument on appeal failed here too. The appeals court explained that the FMLA cause of action created in § 2615(a), which prohibits employers from interfering with, or retaliating for, the exercise of FMLA rights, requires a showing that the employer had a discriminatory reason for the adverse employment action. Southwest said if fired her for her dishonesty about being unable to work due to illness on the June 24 phone call (and it had both a transcript of the phone call and the results of a subsequent internal investigation to back up its contention). Based on the flight attendant’s back-and-forth between first attempting to invoke the commuter policy, which didn’t apply, then asking about attendance points for a no-show versus a sick call, a supervisor got suspicious, and the employer’s internal investigation ultimately concluded that she had been dishonest during the phone call, warranting termination as a dishonesty violation under Southwest’s flight attendant work rules.

Honest belief. What mattered was not whether Southwest was objectively correct about the flight attendant’s dishonesty, but whether it had a good-faith belief that she had been dishonest, which was the basis for the termination. It was not enough that the flight attendant subjectively believed that Southwest acted unlawfully. And, while she referenced several alleged procedural irregularities to support pretext, they were not entirely on point.

Procedural "irregularities?" She claimed that under Southwest’s attendance policy, she would not have accumulated enough points to be fired for missing the three days of work on June 24–26—but she wasn’t fire for attendance issues, she was fired for dishonesty, the appeals court stressed. Southwest failed to adhere to its normal procedure, she said, when it did not issue her a second notification of FMLA eligibility after receiving a doctor’s note excusing her from work. But Southwest’s policy is to provide notices of FMLA eligibility when an employee is actually scheduled to be absent for more than three days, not merely when she provides a doctor’s note potentially excusing her for more than three days. Consequently, even if the flight attendant had made a prima facie showing for her FMLA interference claim, she still failed to make a sufficient showing that Southwest’s proffered nondiscriminatory reason for terminating her employment was merely pretextual.

SOURCE: DeVoss v. Southwest Airlines Co. (CA-5), No. 17-11462, September 7, 2018.

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