Devoss v. Southwest Airlines Co

Brief/Memorandum in Support

N.D. Tex.May 26, 2017

Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION AMY DEVOSS, § § Plaintiff, § § v. § CIVIL ACTION NO. 3:16-CV-02277 § SOUTHWEST AIRLINES CO., § § Defendant. § PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE TO MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE SIDNEY A. FITZWATER: Plaintiff Amy DeVoss submits her brief in support of her response to the motion for summary judgment filed by Defendant Southwest Airlines Co. DeVoss’s arguments made in her motion for partial summary judgment relate to this response. She incorporates her motion in this response and attempts to keep repetition to a minimum. Both combined do not exceed the page limit for a response to a motion for summary judgment. SUMMARY Southwest’s motion should be denied because DeVoss is entitled to a summary judgment on her claim that Southwest interfered with her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; or, alternatively, a material fact issue exists as to whether Southwest interfered with her rights under the FMLA. Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 1 of 11 PageID 519 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 2 Southwest uses a point system to assess and discipline flight attendants for attendance problems. Southwest bypassed or disregarded its point system to terminate DeVoss. Southwest also bypassed and disregarded its own policy and practice with DeVoss concerning FMLA notices. Finally, Southwest bypassed and disregarded FMLA procedures with DeVoss that would determine whether a person qualified for FMLA leave. The result: Southwest interfered with DeVoss’s FMLA rights. DeVosss satisfies the elements of an FMLA interference claim which does not include motive or intent: (1) she was an eligible employee (e.g., she had been employed over a year); (2) Southwest is a covered employer (e.g., it employs more than 50 employees); (3) she was entitled to leave under the FMLA (she satisfies the definition of a serious medical condition); (4) she gave notice of her intent to take leave (she asked for more than three days off for the illness); and (5) Southwest denied her FMLA benefits or interfered with FMLA rights to which she was entitled (Southwest ignored the FMLA procedure, as well as its own policies, for challenging the existence of the illness, and then terminated her). ARGUMENT A. An FMLA interference claim does not involve intent. The FMLA’s “interference” clause “creates prescriptive rights” and forbids an employer from interfering with an employee's exercise of his rights under the Act. Abdulbaki v. Regent Care Ctr. of San Antonio II, Ltd. P’ship, SA-11-CV-00211 OLG, 2012 WL 1076206, at *10 (W.D. Tex. Mar. 29, 2012). It provides: “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” Id. (quoting 29 U.S.C. § 2615(a)(1)). To prevail on an interference claim, DeVoss Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 2 of 11 PageID 520 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 3 must show that: (1) she was an eligible employee; (2) Southwest is a covered employer; (3) she was entitled to leave under the FMLA; (4) she gave notice of her intent to take leave; and (5) Southwest denied her FMLA benefits or interfered with FMLA rights to which she was entitled. Id. “This inquiry is an objective one divorced from the employer’s motives, with the central question being simply whether the employee was entitled to the FMLA benefits at issue.” Edgar v. JAC Products., 443 F.3d 501, 511 (6th Cir. 2006). DeVoss characterized the liability as strict liability because that is the label generally given when motive is not an issue. See Black’s Law Dictionary 934 (8th ed. 2004). The Fifth Circuit has held that “claims that arise from the deprivation of an FMLA entitlement do not require a showing of discriminatory intent, whereas claims that arise from alleged retaliation for an employee’s exercise of FMLA rights do.” Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 349 (5th Cir. 2013) (Elrod, J. concurring) (collecting cases). An interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA. Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 788 (5th Cir. 2017) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)). See also Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (A person alleging FMLA interference “does not have to allege that his employer intended to deny the right; the employer’s motives are irrelevant.”). DeVoss brings an interference, not a retaliation, claim. The confusion about existence of strict liability appears to develop in the application of an interference claim to reinstatement after leave or to termination of employment. The FMLA provides that FMLA leave does not entitle an employee to any right, benefit, or position of employment other than any ... to which the employee would have been entitled had the employee Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 3 of 11 PageID 521 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 4 not taken the leave.” 29 U.S.C. § 2614(a)(3). “In other words, if an employer can show that it refused to reinstate the employee for a reason wholly unrelated to the FMLA leave, the employer is not liable.” Strickland, 239 F.3d at 1208. Examples of reasons not related to the request for leave would be dishonesty as to criminal backgound checks. See Miller v. Metrocare Services, 809 F.3d 827, 832 (5th Cir. 2016), cert. denied, 136 S. Ct. 2463, 195 L. Ed. 2d 801 (2016). Another example of a reason unrelated to the request for leave would be poor performance. See Esparza v. Bank of Am., N.A., 3:12-CV-0662-D, 2013 WL 5208024, at *7 (N.D. Tex. Sept. 17, 2013). These cases did not concern reasons related to the request for leave. Here, Southwest’s reason for DeVoss’s termination is directly related to her exercise of FMLA rights: her honesty about her illness. If DeVoss’s honesty concerned something other than her health condition then the reason may have been legitimate and unrelated to the FMLA. The veracity of the claim of illness is directly related to the right to a leave under the FMLA. Some of the confusion comes from intertwining an interference claim with a retaliation claim and some comes with whether the elements are sufficient in themselves or only a prima facie case subject to pretext for a reason wholly unrelated to the request for leave. The end result is the same. If the reason given is related to the request for leave itself, then intent or motive (and therefore the good faith of the employer) is not relevant, only compliance. The Court in Strickland analyzed facts similar to DeVoss. The employer terminated the employee, at least in part, for “walking off the job.” Strickland, 239 F. 3d at 1208. A reasonable jury could find that Strickland left because of a diabetic attack and that before he left the job site he communicated this to the person responsible for recording work absences. Id. If the jury Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 4 of 11 PageID 522 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 5 believes that he gave proper notice of the reason for leaving work, he would be entitled to the reinstatement benefit the FMLA provides. Id. at 1209. Southwest cannot disregard the FMLA by simply saying she is not requesting leave in good faith. The FMLA provides a mechanism for this determination. Strickland, at 1209 n.12. Southwest cannot simply brush aside the FMLA procedure for determining the existence of a serious medical condition by saying it does not believe the employee. Employment decisions cannot trump the FMLA; the FMLA controls and restricts employment decisions. Again, motive, and therefore the employer’s good faith, is not an issue in an FMLA interference case unless the reason is wholly separate from the request for leave, such as the notice of the illness itself. Compliance, rather than motive, is the issue. Southwest failed to comply with FMLA procedure in deciding that DeVoss (and apparently, her medical provider as well) were not telling the truth. B. Southwest does not deny that the first two elements have been satisfied. First, DeVoss was an eligible employee under the FMLA in June 2015. (Pl. Appx 10 (depo pp. 38:19-21; 33-41)). Second, Southwest is a covered employer under the FMLA and was a covered employer in June 2015 as well. (Pl. Appx 9-10 (depo pp. 36:25-37:9)). C. DeVoss was entitled to the leave. DeVoss had a serious medical condition because the health care provider recommended that she not fly and that she not return to work for five days. (Pl. Appx 27; Pl. Appx 23-24 (depo pp. 17:18-18:5)). DeVoss was also placed on a regimen of antibiotics. (Pl. Appx 23 (depo p. 16:15-23)). This satisfies the requirements of 29 C.F.R. § 825.113(a)(2): a period of incapacity Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 5 of 11 PageID 523 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 6 of more than three days with treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. Although she qualifies under Section 825.113(a)(2), alone, she may also qualify for chronic condition. She had been diagnosed with sinusitis (Pl. Appx 48-49), has had the problem since childhood (Pl. Appx 1, ¶ 3), has been under doctors’ care for sinus problems repeatedly for most of her life (Pl. Appx 1, ¶ 3), and has undergone sinus surgery (Pl. Appx 48-49; Pl. Appx 1, ¶ 3). DeVoss does testify that she went to another clinic for medicine after June 24, 2015, and before July 29, 2015. (Pl. Appx 6 (depo pp. 166-67)). This satisfies the chronic condition with two visits in one year qualification. The FMLA procedure for determining whether a person actually has a serious medical condition does not appear to be optional. For example, the FMLA regulations require the employer to “advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). “[T]he employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” 29 C.F.R. § 825.305(d). Courts have recognized that an employer who finds an employee’s certification to be “incomplete” has a duty to inform the employee of the deficiency and provide the employee a “reasonable opportunity” to cure it. See Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir. 2007). The FMLA includes a mechanism by which an employer may ascertain whether an employee’s absence qualifies as FMLA leave. Strickland, 239 F.3d at 1209 n.12. Specifically, “[a]n employer may require that a claim that an employee is unable to return to work because of Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 6 of 11 PageID 524 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 7 the continuation, recurrence, or onset of [a] serious health condition ... be supported by ... a certification issued by the [employee’s] health care provider.” 29 U.S.C. § 2614(c)(3)(A). The federal regulation interpreting the certification provision of the Act states that if the certification is inadequate, “[t]he employer shall ... provide the employee a reasonable opportunity to cure any such deficiency.” 29 C.F.R. § 825.305(d). As in Strickland, there is no evidence to indicate that Southwest considered DeVoss’s doctor's note inadequate. See Strickland, 239 F.3d at 1209. DeVoss satisfies the third element of the interference claim. D. DeVoss gave notice of her intent to take leave. DeVoss does not have to request another form nor does she have to use the words FMLA to give notice of intent to leave. An employee taking unforeseeable leave “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.303(b). Once an employee taking unforeseeable leave informs his employer that potentially FMLA-qualifying leave is needed, the regulations place on the employer the burden of ascertaining whether the employee's absence actually qualifies for FMLA protection. Strickland, 239 F.3d at 1209 (citing 29 C.F.R. § 825.303(b)). Southwest claims that the leave was foreseeable because she had taken time off earlier in the month. DeVoss did not foresee the leave because she worked after taking the time off. (Pl. Appx. 6 (depo p. 165)). She voluntarily ended the leave during the first part of the month, even if it related to FMLA leave. Southwest’s time limit for her to apply for leave for those days earlier in the month also expired on June 23, 2014, by Southwest’s own notice. (Def. Appx. 225). DeVoss attempted to continue to work with her illness, painful sinusitis at high altitudes, but Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 7 of 11 PageID 525 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 8 chose to request time off when she realized that she would be penalized for being late anyway. That Southwest thought she was dishonest makes no difference in an interference claim. DeVoss requested the leave for a new unforeseen event. Southwest cannot ignore its policies to automatically send a notice of FMLA leave. If an employee tells his employer that he must leave work because he is suffering a debilitating condition, the employee has given notice of a need for unforeseeable leave sufficient to shift to the employer the burden of making further inquiry into whether the absence truly qualifies for FMLA protection. Strickland, at 1209. At the least, a dispute over whether an employee engages in a dishonest course of conduct is sufficient to preclude summary judgment against a plaintiff in a case involving an FMLA violation. Ayers v. Sembler Co., 808-CV-1503-T-26MAP, 2009 WL 3818449, at *4 (M.D. Fla. Nov. 13, 2009). E. Southwest denied her FMLA benefits or interfered with FMLA rights to which she was entitled. Southwest failed to engage in the interactive process required by FMLA, it failed to follow the process to determine the actual existence of a serious medical condition, it denied her leave, and it terminated her. This resulted in harm to her and the remedy includes reinstatement. F. To the extent intent plays a part, it can be shown through pretext. The failure to follow established policy of the employer is evidence of pretext that establishes a disputed fact sufficient to deny a motion for summary judgment. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (departure from normal procedural sequence in racially discriminatory zoning case); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 224 (5th Cir. 2000) (reversing grant of employer’s motion for judgment as matter of law based in part on evidence that employer had not followed its own internal procedures Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 8 of 11 PageID 526 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 9 requiring formal oral warning, written warning, or corrective action plan); Pruitt v. Dallas Indep. Sch. Dist., No. 3-04-CV-0554 at p. 12 (N.D. Tex. April 21, 2006) (“The failure to investigate this discrepancy, contrary to established policy, is some evidence of pretext.”); Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1138 (10th Cir. 2003) (procedural irregularities disturbing in case where plaintiff had sufficient leave under the FMLA). The attendance point system provided the following progressive discipline: 0 - 4½ No action taken 5 - 6½ Counseling 7 - 9 Written Warning 9½ - 11½ Final Warning (possible termination for overall job performance) 12 Termination of Employment (Def. Appx. 27). Southwest’s log for DeVoss’s points showed a total of 5 points at the end of 2014 and no points for 2015. (Pl. Resp. Appx. 2-3). A report of an illness less than two hours prior to a scheduled flight merits 2½ points, the same as a no show. (Def. Appx. 26). If absence continues for an illness without a doctor’s statement, ½ point is given for each day missed. (Def. Appx. 26). If DeVoss had not called in and just not shown up that day, she would have received 2½ points bringing her total to 7½ which would merit a written warning but not termination. Calling in sick less than two hours before the scheduled flight, which she did, results in the same level of discipline. She could have continued to be out sick without a doctor’s note for several more days before the absence rose to the level that her employment should be terminated. DeVoss did provide a note and the note showed five days. This is enough to trigger FMLA. It was enough to automatically trigger a notice of right to FMLA leave and request form Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 9 of 11 PageID 527 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 10 under Southwest’s policy and practice. (Pl. Appx. 12 (depo p. 46)). Southwest had to stop and interrupt its practice of sending a notice and request for leave form upon each illness that lasts three days of more. (Pl. Appx. 12 (depo pp. 46-48)). Not following its own policy is sufficient evidence of pretext. The collective bargaining agreement provides that if a flight attendant is absent more than three days, then Southwest will send an FMLA eligibility notice. (Pl. Appx. 12 (depo pp. 46)). The FMLA notice is generated automatically. (Pl. Appx. 12 (depo p. 46)). Southwest did not generate a notice to DeVoss for her illness that began on June 24, 2015. It cannot rely on the notice provided for the illness earlier in the month because that period ended by Southwest’s own admission. (Def. Appx. 225). Southwest’s notice itself said it expired in 15 days, which ended on June 23, 2015 (Def. Appx. 225). The new report of illness should have automatically generated a new notice but Southwest withheld the notice on DeVoss’s latest report of illness. Southwest failed to follow its progressive discipline in the point system and its policy and practice of sending the automatic notice of FMLA and request for certification after every request for time off of more than three days. This is sufficient to show to a jury pretext for its own stated reason of dishonesty. Because DeVoss was harmed by not being allowed to present a doctor’s note, by not being allowed to follow policy by using her sick points or no show points, by not having her medical condition examined objectively, and ultimately by being terminated, she is entitled to a judgment in her favor as to liability as a matter of law; or at a minimum, a trial of the issue. WHEREFORE, DeVoss requests that the Court deny Southwest’s motion for summary judgment. Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 10 of 11 PageID 528 Plaintiff’s Brief in Support of Response to Motion for Summary Judgment Page 11 Respectfully submitted, /s/ Brian P. Sanford Brian P. Sanford Texas Bar No. 17630700 bsanford@sanfordfirm.com David B. Norris Texas Bar No. 24060934 dnorris@sanfordfirm.com THE SANFORD FIRM 1910 Pacific Ave., Suite 15400 Dallas, TX 75201 Ph: (214) 717-6653 Fax: (214) 919-0113 ATTORNEYS FOR PLAINTIFF AMY DEVOSS CERTIFICATE OF SERVICE On May 26, 2017, I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. I hereby certify that I have served all counsel of record electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). /s/ Brian P. Sanford Case 3:16-cv-02277-D Document 29 Filed 05/26/17 Page 11 of 11 PageID 529