Devoss v. Southwest Airlines Co

MOTION for Partial Summary Judgment

N.D. Tex.April 22, 2017

Plaintiff’s Motion for Partial 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 MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE JUDGE SIDNEY A. FITZWATER: Plaintiff Amy DeVoss moves for partial summary judgment finding that Defendant Southwest Airlines Co., violated the Family and Medical Leave Act. SUMMARY DeVoss is affirmatively requesting summary judgment as to the liability of Southwest. It involves a single issue: FMLA interference. The FMLA has an interference and a retaliation provision. This case concerns the interference provision. Interference concerns actions preventing a person from taking steps to have the benefits under the act. Retaliation involves adverse actions for seeking the benefits. Because interference normally does not involve a state of mind or intent as in a discrimination or retaliation case, the issue of interference may be ripe for a plaintiff to be granted a summary judgment as to liability. Southwest employed DeVoss as a Flight Attendant. DeVoss telephoned a Southwest scheduling representative that she was going to be late because of the delay of Case 3:16-cv-02277-D Document 10 Filed 04/22/17 Page 1 of 3 PageID 78 Plaintiff’s Motion for Partial Summary Judgment Page 2 her commuter flight. When the representative informed DeVoss that she would be penalized for being late, DeVoss reported that she was sick and needed time off. She provided a doctor’s note. Southwest thought she was being dishonest. DeVoss denies dishonesty, provides the doctor’s note as proof, and additional medical information related to a chronic illness. Southwest disbelieved and disregarded DeVoss’s statement and doctor’s note. The issue here is whether Southwest violated the FMLA by disregarding DeVoss’s request for time off for a medical condition. Southwest failed to follow FMLA procedure for providing notice of leave rights and for improperly contesting the validity of a medical condition. Southwest’s sole defense to the interference is DeVoss’s dishonesty in being ill - that it did not believe DeVoss when said she was sick. DeVoss denies dishonesty and provided documentation from a medical provider, but her position is that the FMLA provides a procedure for determining the validity of an illness and that Southwest failed to follow the procedure. Southwest cannot unilaterally make the determination that DeVoss does not have a qualifying serious medical condition without following the procedures provided by the FMLA for making the determination and resolving conflicts of opinions as to whether an employee is qualified for the leave. Failing to follow the procedure for making the determination is interference as a matter of law. Pursuant to Local Rule 56.3(b), DeVoss also sets forth the contents required by Local Rule 56.3(a) in her brief in support of this motion. WHEREFORE, DeVoss requests that the Court grant her summary judgment as to Southwest Airlines’ liability for violating the FMLA. Case 3:16-cv-02277-D Document 10 Filed 04/22/17 Page 2 of 3 PageID 79 Plaintiff’s Motion for Partial Summary Judgment Page 3 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 April 22, 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 10 Filed 04/22/17 Page 3 of 3 PageID 80