Carmona v. Southwest Airln Co

Filing 501076444

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Document: 00511076444

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REVISED April 12, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals F i f t h Circuit

FILED
N o . 08-51175 March 22, 2010 Charles R. Fulbruge III Clerk P l a i n t if f- A p p e l la n t v. S O U T H W E S T AIRLINES COMPANY D e fe n d a n t-A p p e lle e

E D W A R D CARMONA

A p p e a l from the United States District Court fo r the Western District of Texas

B e fo r e GARWOOD, OWEN, and SOUTHWICK, Circuit Judges. G A R W O O D , Circuit Judge: P la in t iff-a p p e l la n t , Edward Carmona, sued defendant-appellee, S o u th w e s t Airlines Co. (Southwest), claiming that the termination of his e m p lo y m e n t violated Title VII of the Civil Rights Act of 1964 (Title VII) and t h e Americans with Disabilities Act (ADA). The case was tried before a jury, w h ic h found that Southwest had discriminated against Carmona because of h is disability and awarded him $80,000.00 in lost wages. The jury found no lia b ilit y on Carmona's Title VII claim. The district court accepted the jury's v e r d ic t on Carmona's Title VII claim, vacated the jury's verdict on Carmona's

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A D A claim, and granted judgment as a matter of law to Southwest. Carmona n o w appeals. For the following reasons, we reverse in part, vacate in part, a n d remand. F A C T S AND PROCEEDINGS BELOW C a r m o n a was diagnosed with psoriasis when he was twelve or thirteen y e a r s old. Psoriasis is a skin disease characterized by thickened patches of in f la m e d , red skin, often covered by silvery scales. American Medical A s s o c ia tio n , Encyclopedia of Medicine 830 (Charles B. Clayman ed., Random H o u s e 1989). Although individual attacks of psoriasis can be completely r e lie v e d , the disease itself is not usually curable, and it tends to recur in a tt a c k s of varying severity. Id. Carmona began working as a flight attendant a t Southwest in 1991. In 1998, Carmona was diagnosed with psoriatic arthritis, which is a c o n d it io n that develops in about thirty-five percent of people who have p s o r ia s is . Psoriatic arthritis causes painful swelling and stiffness in the jo in ts during attacks of psoriasis on the surface of the skin. During flare-ups o f his psoriatic arthritis, Carmona cannot walk or move around without great p a in . It also makes it harder for him to sleep. Carmona's psoriatic arthritis fla r e s up three or four times every month, and each flare-up lasts for three or f o u r days. In other words, Carmona spends anywhere from about one-third to a b o u t one-half of each month unable to move without a great deal of pain. He file d for intermittent Family and Medical Leave Act (FMLA) leave so that he c o u ld be excused from work during these flare-ups. Southwest's third-party F M L A administrator, Broadspire Administrator Services, Inc. (Broadspire), g r a n te d this leave in 1998. Broadspire renewed the leave periodically until A p r il 2005, when it found that Carmona had not worked enough hours to be e lig ib le for renewal. 2

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S o u t h w e s t's attendance policy is governed by the "Agreement Between S o u t h w e s t Airlines Co. and The Flight Attendants in the Service of S o u t h w e s t Airlines Co. As Represented By the Transport Workers Union of A m e r i c a , AFL-CIO" (Agreement). Under the Agreement, flight attendants a cc r u e points for various types of attendance lapses, such as calling in sick, f a ilin g to show up for a flight without advance notice, or failing to report to s c h e d u lin g . Different types of lapses result in the accrual of different n u m b e r s 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 t o show up without any kind of prior notice to the airline results in the a d d itio n of two-and-a-half points. Points do not remain on the flight attendant's record permanently. All p o i n t s 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 r u n n in g total is reduced by two. Both of these reductions are known as " r e c o rd improvement." Points are not assigned for absences that result from a p p r o v e d FMLA leave. Also, a flight attendant may use a doctor's note once e v e r y calendar quarter to remove all points associated with the ailment that is verified by the note. The flight attendants' records are kept in pencil, b e c a u s e they are frequently altered by doctors' notes, FMLA leave, and prete r m in a tio n reviews. When a flight attendant reaches between five and six-and-a-half points, h e is issued a "letter of counsel." When the flight attendant reaches between s e v e n and nine points, he is issued a "written warning." When the flight a tt e n d a n t reaches between nine-and-a-half and eleven-and-a-half points, he is issued a "final warning." Termination occurs when a flight attendant r e a c h e s or exceeds twelve points. However, termination cannot occur under 3

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t h e terms of the Agreement if the flight attendant was not timely served with th e letter of counsel, the written warning, and the final warning. Additionally, before termination is finalized, Southwest reviews and r e c a lc u la t e s the points to verify that the flight attendant has reached at least t w e lv e points. Southwest then issues a termination level notification and h o ld s a fact-finding meeting to discuss the situation with the flight attendant a n d a representative of the flight attendant's union. After these p r e c a u tio n a ry steps, if Southwest remains convinced that the flight attendant h a s accrued twelve or more points, then the flight attendant is issued a te r m in a tio n letter, and his employment is terminated. Carmona used a doctor's note to cover three absences resulting from a fla r e -u p of his psoriatic arthritis in late April 2005. He contends that he tried t o excuse these absences using his FMLA leave but was not permitted to do so b y Southwest on the ground that he was not eligible for leave. Southwest's m a n a g e r contends that Carmona was eligible to excuse two of the three a b s e n c e s with his FMLA leave but chose to use a doctor's note instead. O n April 30, 2005, Carmona's FMLA leave expired. He was unable to r e n e w it, because, according to Southwest and Broadspire, he had not worked e n o u g h hours that year to be eligible to renew it. Accordingly, after May 1, 2 0 0 5 , he was no longer able to excuse absences caused by his psoriatic a r t h r it is with FMLA leave. At the end of April, Southwest appears to have b e lie v e d 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, a n d May 4, 2005. In early May, a flare-up of his psoriatic arthritis caused h im to miss several days of work. These absences were not excused, because C a r m o n a had been unable to renew his FMLA leave and had already used his d o c t o r 's note for the second quarter of 2005 in April. On May 10, 2005, 4

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S o u th w e s t sent Carmona a written warning. On June 21, 2005, Carmona sprained his thumb at home. He did not r e p o r t to work the next day as scheduled, but went to the hospital instead to h a v e his thumb examined. The hospital released him around midnight of J u n e 23. However, he did not return to work until June 27, because of the s w e llin g in his hand. At trial, it was disputed whether or not this absence w a s in accordance with the hospital's instructions. Carmona testified that he fa x e d 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 n e e d to stay home for three or four days. Southwest contended that it had o n ly received the note saying he could return to work the morning of June 23. O n June 23, 2005, Southwest sent Carmona his final warning. It is su e d him a termination level notice on June 27, which indicated that he had a c c u m u la t e d thirteen points as of June 26. Under the Agreement between t h e flight attendants' union and Southwest, a flight attendant must be te rm in a te d within seven days of reaching twelve points. Kevin Clark (Clark), S o u t h w e s t's In-Flight Base Manager for Houston, requested an extension of t h is deadline, because he was unable to find a time within seven days of June 2 6 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, C a r m o n a testified that his union representative told him that he had to grant S o u t h w e s t the extension or it would terminate him immediately. He decided to grant the extension. Before the fact-finding meeting, Clark reviewed Carmona's attendance p o i n t s and concluded that Carmona's record was incorrect, because Clark c a lc u la t e d that it should have reflected sixteen-and-a-half points, instead of th irte e n . At the meeting, Clark asserted this view. Stacy Martin (Martin), 5

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C a r m o n a 's union representative, calculated Carmona's total to be fourteen p o i n t s . Because the representative of the union and Southwest's manager b o t h agreed that Carmona was in excess of twelve points, he was terminated fo r excessive absenteeism without further procedure. Carmona testified at t r ia l that, after the meeting, when Martin learned more about the c ir c u m s ta n c e s of Carmona's absences, Martin stated that he did not believe t h a t Clark had told the entire truth during the meeting. Carmona attempted t o bring grievance proceedings through his union, but the union determined th a t his grievance lacked merit. He then obtained counsel and appealed his g rie v a n c e to the Railway Labor Act (RLA) Board of Adjustment (Board), but th e Board upheld his termination. After his termination, Carmona worked as a customer service agent for J e t Blue airlines on a part-time basis, which did not exceed twelve hours per w e e k . This job required him to stand behind a desk and check in passengers, m e e t flights on the jet way, and check baggage. After nine months, he left Jet B l u e and began working at Dillard's. This job required him to sit behind a d e s k all day, which aggravated his condition. However, Carmona admitted at tr ia l that he did not miss work at either Jet Blue or Dillard's as a result of his p s o r ia t ic arthritis. C a r m o n a filed suit against Southwest on August 14, 2006, claiming th a t his termination violated the gender discrimination provisions of Title V I I , the disability discrimination provisions of the ADA, and the FMLA. He d r o p p e d his FMLA claim during the course of the proceedings. On May 25, 2 0 0 7 , Southwest filed a motion for summary judgment, arguing, among other t h in g s , that Carmona's claims were preempted by the RLA. The district court a g r e e d that Carmona's claims were preempted by the RLA and granted S o u t h w e s t 's motion. Carmona appealed the grant of summary judgment to 6

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th is court, which reversed and remanded on July 16, 2008. Carmona v. S o u th w e s t Airlines Co., 536 F.3d 344 (5th Cir. 2008). On August 7, 2008, the district court set the case for jury trial in O c t o b e r 2008. On September 3, the district court held a hearing on the r e m a in d e r of Southwest's motion for summary judgment and denied the m o tio n . At this hearing, Carmona stated that he was ready to proceed to trial im m e d ia te ly and declined the district court's invitation to engage in a d d it io n a l discovery. On September 25, 2008, the court reset the trial to b e g in on September 29, 2008. The district court stated that this would be n e c e s s a r y , because its docket was completely full in October and November. On September 28, Carmona filed a motion to compel Southwest to produce R ita Ilgen (Ilgen), one of its employees, as a witness, or, alternatively, a m o t io n for a continuance pending Ilgen's return from her vacation outside of s u b p o e n a range. Carmona stated that Ilgen was important to his gender d is cr im in a t io n claim, because Clark, the same supervisor who had t e r m in a t e d Carmona, had not assigned her points when she was arrested for d r iv in g under the influence. The district court denied this motion on S e p te m b e r 29, stating that it had no room on its docket to delay the trial. The trial began as scheduled on September 29. S o u t h w e s t moved for judgment as a matter of law at the conclusion of e a c h party's case, arguing, inter alia, that Carmona had failed to produce s u ffic ie n t evidence for a reasonable jury to find that he was an "individual w it h a disability" within the meaning of the ADA, that he was "qualified" to w o r k as a flight attendant within the meaning of the ADA, or that he had b e e n discriminated against "because of" his disability. See 42 U.S.C.A. §§

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1 2 1 0 2 ,1 12112 2 (2005). The trial court carried Southwest's motion pending s u b m is s io n of the case to the jury. On October 2, 2008, the jury returned a v e r d ic t finding for Carmona on his ADA claim and awarding him $80,000 in lo s t back wages, but finding against him on his Title VII claim. Following the v e r d ic t , Southwest renewed its motion for judgment as a matter of law, and C a r m o n a moved for reinstatement. The district court granted Southwest's m o t io n on October 20, accepting the jury's verdict as to Title VII, vacating the v e r d ic t as to the ADA claim, and denying Carmona's motion for r e in s t a t e m e n t . The district court vacated the verdict on Carmona's ADA c la im because it found that he had presented insufficient evidence that he w a s an "individual with a disability" or that he had been discriminated a g a in s t "because of" his disability. The district court rejected Southwest's a rg u m e n t that Carmona had failed to produce substantial evidence that he w a s "qualified" for his job within the meaning of the ADA. Final judgment

Section 12102 states in relevant part: "As used in this chapter: ... (2) Disability The term `disability' means, with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C.A. § 12102 (2005) (emphasis in original). Section 12112 states in relevant part: "(a) General Rule No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C.A. § 12112 (2005) (emphasis in original).
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t h a t he take nothing by his suit was issued on October 20, 2008. Carmona t im e ly filed notice of appeal on November 14, 2008. D IS C U S S IO N O n appeal, Carmona argues that the district court erred in granting ju d g m e n t as a matter of law to Southwest on his ADA claim. He argues that, s h o u ld we agree that the district court erred in overturning the jury verdict, w e must also find that the district court erred by failing to reinstate him. He a ls o argues that the district court erred in failing to grant a continuance so t h a t Ilgen could be compelled to testify. Southwest disputes each of C a r m o n a 's assignments of error. Furthermore, although Southwest argues t h a t the district court's judgment as a matter of law was correct, Southwest c o n te n d s that the district court erred in its analysis of this issue by finding t h a t Carmona had presented sufficient evidence for a reasonable jury to find t h a t he was "qualified" for his job within the meaning of the ADA. I. Judgment as a Matter of Law on Carmona's ADA Claim I n order to hold Southwest liable for discrimination under the ADA, C a r m o n a needed to establish (1) that he was an "individual with a disability" w it h in the meaning of the ADA, (2) that he was a "qualified individual" for h is job, despite his disability, and (3) that he was discharged "because of" his d is a b ility . See 42 U.S.C.A. §§ 12102, 12112 (2005). In order to survive a m o tio n for judgment as a matter of law, he needed to produce enough e v id e n c e in support of each of these elements to allow a reasonable jury to fin d in his favor. See, e.g., EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 7 2 4 , 730 (5th Cir. 2007). A. Standard of Review W e review a district court's ruling on a motion for judgment as a matter o f law de novo. E.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 622 9

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(5 t h Cir. 2009). We examine all of the evidence in the record as a whole, in c lu d in g evidence that does not support the non-moving party's case. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir. 1996). However, we must view the evidence in the light most favorable to the nonm o v in g party and draw all reasonable inferences in favor of the non-moving p a r ty . Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003); F a r p e lla -C r o s b y , 97 F.3d at 805-06. We do not assess the credibility of the w itn e s s e s or weigh the evidence. Palasota, 342 F.3d at 574. J u d g m e n t as a matter of law is appropriate where there is no legally s u ffic ie n t evidence upon which the jury could find for a party on its claim. E.g., Hagan, 529 F.3d at 622. There is no legally sufficient evidence upon w h ic h a jury could find for a party where the facts and inferences point so s tr o n g ly and overwhelmingly in favor of the moving party that reasonable ju r o r s could not arrive at a contrary verdict. See, e.g., Burch v. Coca-Cola, 1 1 9 F.3d 305, 313 (5th Cir. 1997); Boeing Co. v. Shipman, 411 F.2d 365, 3 7 4 ­ 7 5 (5th Cir. 1969) (en banc). B . "Individual with a Disability" Carmona needed to establish that he was an "individual with a d i s a b ilit y " within the meaning of the ADA in order to qualify for protection u n d e r its provisions. See 42 U.S.C.A. § 12112(a) (2005). In order to establish t h a t he had a disability, Carmona needed to show that he had: " ( A ) a physical or mental impairment that substantially lim it[e d ] one or more . . . major life activities . . . ; ( B ) a record of such an impairment; or ( C ) [was] regarded as having such an impairment." See 42 U .S .C .A . § 12102(2) (2005) (emphasis in original). T h e United States Supreme Court adopted a strict interpretation of this d e fin itio n in the cases of Sutton v. United Airlines, Inc. and Toyota Motor 10

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M a n u fa c tu r in g , Kentucky , Inc. v. Williams. Sutton, 119 S.Ct. 2139 (1999), su p er se d e d by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 1 2 2 Stat. 3553; Williams, 122 S.Ct. 681 (2002), superseded by statute, ADA A m e n d m e n t s Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. In Sutton, the C o u r t held that the mitigating effects of medications had to be taken into a c c o u n t in determining whether or not a person was "substantially limited" in p e r fo r m in g a major life activity. Sutton, 119 S.Ct. at 2146. In Williams, the C o u r t held that the phrase "substantially limited" precluded impairments t h a t interfered with major life activities in only minor ways from qualifying a s "disabilities" under the ADA. Williams, 122 S.Ct. at 691. Williams also n o te d that major life activities are those activities which are of central im p o r ta n c e to daily life, such as walking, seeing, and hearing. Id. The district court found that, although Carmona had presented su fficie n t evidence that he had an impairment that affected his major life a ct iv it ie s of sleeping, standing, and walking, he had not presented sufficient e v id e n c e that this impairment was substantially limiting. The district court r e a ch e d its conclusion in part because it found that our holding in Waldrip v. G e n e r a l Electric Co., 325 F.3d 652 (5th Cir. 2003), controlled Carmona's case. The district court interpreted Waldrip as standing for the proposition that im p a irm e n ts that cause temporary, intermittent limitations of major life a c t iv it ie s are not substantially limiting as a matter of law. S h o r t ly before Carmona's case went to trial, Congress amended the A D A in order to correct what it viewed as an overly restrictive interpretation o f the statute's terms that had been adopted by the Supreme Court in Sutton a n d Williams. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 S ta t. 3553. These amendments would be very favorable to Carmona's case if

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t h e y are applicable, because they make it easier for a plaintiff with an e p is o d ic condition like Carmona's to establish that he is an "individual with a d is a b ilit y ." See id. Carmona argued unsuccessfully in the district court that th e district court needed to interpret the ADA's definition of "disability" in lig h t of the meaning adopted by these amendments. On appeal, Carmona again contends that we must interpret the terms o f the ADA in light of the meaning adopted by the ADA Amendments Act of 2 0 0 8 (ADAAA). He also argues that, even if we decline to interpret the ADA in light of these amendments, he presented sufficient evidence for a r e a s o n a b le jury to find that he was an "individual with a disability" under the o ld standards established by Sutton and Williams. We begin our analysis by addressing Carmona's argument that we s h o u ld interpret the ADA's definition of "disability" in light of the recent a m e n d m e n t s . We have already addressed this issue generally. In EEOC v. A g r o Distribution, LLC, we stated that the ADAAA did not apply r e tr o a c tiv e ly . 555 F.3d 462, 469 n.8 (5th Cir. 2009). Carmona contends in his b r ie f that he is not arguing for retroactive application of the amendments. Instead, he argues that Supreme Court precedent establishes that " [s ] u b s e q u e n t legislation declaring the intent of an earlier law is entitled to g r e a t weight when it comes to statutory construction," citing NLRB v. Bell A e r o sp a c e Co., Red Lion Broadcasting Co. v. FCC, and Glidden v. Zdanok for s u p p o r t. Bell Aerospace Co., 94 S.Ct. 1757 (1974), overruled on other grounds b y NLRB v. Hendricks County Rural Elec. Membership Corp., 102 S.Ct. 216 (1 9 8 1 ); Red Lion Broadcasting Co., 89 S.Ct. 1794 (1969); Glidden, 82 S.Ct. 1 4 5 9 (1962). These cases are not on point. In Bell Aerospace and Red Lion B r o a d c a s tin g , the meaning of the statutes at issue before the Supreme Court

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h a d not been definitively established by the Court in any of its prior opinions. See Bell Aerospace Co., 94 S.Ct. at 1768; Red Lion Broadcasting Co., 89 S.Ct. a t 1802. Thus, the "subsequent legislation" at issue in these cases did not in v o lv e a Congressional overturning of settled Supreme Court precedent. Each case involved a situation in which the Court examined a statute and e s ta b lis h e d its definitive interpretation for the first time. In Glidden, the Eighty-third and Eighty-fifth Congresses had passed le g is la tio n that disagreed with a line of Supreme Court cases that had held t h a t earlier Congresses had not established the United States Court of C u s to m s and Patent Appeals or the United States Court of Claims as Article II I courts. Glidden, 82 S.Ct. at 1463. In reviewing the Eighty-third and E ig h ty -fift h Congresses' legislation, the Supreme Court stated that, in ju d g in g for itself whether or not the precedent in question had been correctly d e c id e d , it was proper to give some weight to the later Congresses' in te r p r e ta tio n of the earlier Congresses' intent in establishing the courts. Id. a t 1468. Ultimately, however, the Supreme Court stated that it was not b o u n d by the Eighty-third and the Eighty-fifth Congresses' interpretation, b e c a u s e the case involved a constitutional question. Id. The presence of a c o n s t it u t io n a l question gave the Court the power to invalidate the later C o n g r e s s e s ' desired interpretation. Therefore, as in Bell Aerospace and Red L i o n Broadcasting, the Court had yet to render a definitive interpretation of t h e statute at issue in Glidden when it decided to give some weight to the la te r Congresses' interpretation. C a r m o n a 's case is different, because the Supreme Court established the d e fin it iv e interpretation of the ADA's definition of "disability" in Sutton and W illia m s . This interpretation was later partially overruled by the ADAAA,

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b u t until the ADAAA went into effect, all lower courts remained bound by the S u p r e m e Court's settled interpretation. The effective date of the ADAAA was J a n u a r y 1, 2009. This case was filed, tried, and decided before then. Therefore, in order for us to depart from the Supreme Court's settled in t e r p r e t a t io n , we would need to find that Congress intended the ADAAA to a p p ly retroactively. We have already declined to do that. See Agro D i s tr ib u tio n , LLC, 555 F.3d at 469 n.8. Accordingly, we must apply the S u p r e m e Court's pre-ADAA definition of "disability." C a r m o n a only claims to have established that he was an "individual w it h a disability" under Prong (A) of the ADA's definition of "disability." See 4 2 U.S.C.A. §§ 12102(2). Specifically, he asserts that he submitted sufficient e v id e n c e for a reasonable jury to find that his psoriasis and his psoriatic a r t h r it is substantially limited his major life activities of sleeping, walking, a n d standing. We do not address Carmona's arguments that he presented su fficie n t evidence that he was substantially limited in the major life a c t iv it ie s of sleeping and standing, because we find that he presented s u f fic ie n t evidence that he was substantially limited in the major life activity o f walking. Carmona testified that his psoriatic arthritis made him unable to walk w h e n it flared-up. He stated that, "when that happens I just stay immobile . . . wherever I am. Or if I do move, I crawl around . . . it's quite painful." He te s tifie d that these flare-ups could occur as often as twice in the same week. This testimony was corroborated by documents entered into evidence by both C a r m o n a and Southwest that contained medical evaluations of Carmona's c o n d it io n that were made and signed by Carmona's physician, Dr. Tom Roark (R o a rk ). In these documents, Roark stated that Carmona needed to be g r a n t e d intermittent FMLA leave, because he would be "incapacitated" three 14

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t o four times every month for three to four days at a time. T h e district court found that this evidence was insufficient to establish t h a t Carmona was substantially limited in the major life activity of walking fo r both factual and legal reasons. Southwest echoes these arguments on a p p e a l. We will examine the factual reasons first. T h e district court reasoned that Carmona had undermined his own fa c tu a l evidence of disability by testifying that (1) he had not declared himself d is a b le d when he applied to work for Southwest in 1991, (2) his symptoms w e r e mostly on his skin, (3) his symptoms were eased by medication, (4) he w a s able to ride his bike, shop, cook, walk, stand, and perform other tasks, a n d (5) after his termination, he went to work for Jet Blue and Dillard's w it h o u t missing any scheduled work. We must view the evidence in the light m o s t favorable to Carmona while evaluating these arguments. See Palasota, 3 4 2 F.3d at 574. Arguments (1) and (2) are flawed, because they fail to distinguish b e t w e e n Carmona's psoriasis and his psoriatic arthritis. Carmona never a lle g e d that his psoriasis impaired his ability to walk. Carmona had psoriasis w h e n he went to work for Southwest in 1991, but he did not develop psoriatic a r t h r it is until 1998. Therefore, there was no reason for him to disclose that h e was disabled when he applied for his job with Southwest in 1991. Similarly, when Carmona testified that his symptoms of psoriasis were "m o s tly on the skin," he was describing the symptoms of his psoriasis, not his p s o r ia tic arthritis. As to Argument (3), it does not necessarily follow from the fact that C a r m o n a 's symptoms were "eased" by taking medication that he was no lo n g e r substantially limited in his ability to walk. The jury rationally could h a v e concluded that, even with his medication, Carmona was still 15

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s u b s ta n tia lly limited in his ability to walk during the flare-ups of his psoriatic a r th r itis . See EEOC v. Phillips Chem. Co., 570 F.3d 606, 620 (5th Cir. 2009) (" I n d iv id u a ls who take medication or use corrective devices to lessen an im p a irm e n t but still remain substantially limited as to one or more major life a c t iv i t ie s are still disabled under the ADA.") A r g u m e n t (4) is the product of selective quotation. In its opinion, the d is tr ic t court stated that "Mr. Carmona testified he was able to live by h im s e lf without assistance, take care of himself, read, drive, ride his bike, s h o p , cook, walk, and stand, most of the time." Southwest took this a step fu r th e r in its brief, omitting "most of the time" and stating that "[Carmona] is a b le to drive, read, ride his bike, go shopping, and cook, and lives by himself a n d is able to care for himself." Carmona's actual testimony was that: " Q. [By Counsel for Southwest] Do you still live by yourself? A . [By Carmona] Yes, I do. Q . And you were able to take care of yourself, correct? A . For the most part, yes. Q . You were able to read, to drive, to ride your bike, and shop a n d cook? A . On good days, yes, ma'am. Q . And most of the time, you're able to walk and stand, correct? A . On good days, yes, ma'am." (Emphasis added.) E v e ry one of Carmona's responses was qualified in a manner that was c o n s is te n t with the rest of his testimony. Nothing in this testimony refuted h is claim that his periodic flare-ups of psoriatic arthritis substantially limited h is ability to walk. A r g u m e n t (5), that Carmona's evidence of disability was undermined by h is admission that he had not missed any work because of his condition while h e was employed by Jet Blue or Dillard's, has more merit. It seems strange t h a t an employee who was medically excused from work for up to fifteen days

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a month at one job would have a perfect attendance record at his next job. However, Carmona's jobs at Jet Blue and Dillard's could reasonably be found m a te r ia lly different in presently relevant respects from his job at Southwest. At Dillard's, Carmona's job was performed entirely while seated at a desk. Although Carmona testified that sitting aggravated his condition, he never c o n te n d e d that his psoriatic arthritis substantially limited his ability to sit. Thus, the jury reasonably could have concluded that he was able to work this jo b during his flare-ups, even if getting to and from the job was extremely p a in f u l . At Jet Blue, Carmona worked part-time as a customer service agent, w h ic h required him to stand behind a desk, meet flights on the jet way, and c h e c k baggage. Although this job required him to stand, it involved minimal a m o u n t s of walking. Jet Blue did not allow him to work this job for more t h a n twelve hours a week. Under these facts, and mindful of the rule that we m u s t view them in the light most favorable to Carmona, we find that the jury r a tio n a lly could have concluded that Carmona was able to work for Jet Blue d e s p ite being substantially limited in his ability to walk, because he could t o le r a t e the pain long enough to make it through a part-time day as a c u s t o m e r service agent. T h e district court and Southwest also argue that Carmona failed to p r o d u c e sufficient evidence to establish that he was disabled as a matter of la w , because our case law holds that intermittent flare-ups cannot be c o n s i d e r e d substantially limiting. The case cited for this proposition by both S o u t h w e s t and the district court is Waldrip. 325 F.3d at 652. However, W a ld rip involved a situation in which the plaintiff's doctor testified that, "at m o s t, he occasionally must miss a few days of work when his chronic p a n c r e a t it is flares up." Id. at 657 (emphasis added). The occasional flare-ups in Waldrip and the frequent, recurrent flare-ups that Carmona experiences 17

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a r e substantially different situations, though both could be described as " in te r m it t e n t ." In Waldrip, the plaintiff's occasional flare-ups did not s u b s ta n t ia lly limit any of his major life activities, because they were so few a n d far between. See id. Carmona spends anywhere from about one-third to a b o u t one-half of each month unable to walk without excruciating pain. It w o u ld be difficult to argue that this does not substantially limit his ability to w a lk . There was sufficient evidence for a reasonable jury to find that C a r m o n a was an "individual with a disability" within the meaning of the A D A , because there was sufficient evidence for a reasonable jury to conclude th a t he had an impairment, psoriatic arthritis, that substantially limited his m a jo r life activity of walking. The district court erred in holding otherwise. C. "Qualified Individual" In addition to establishing that he was an "individual with a disability," C a r m o n a needed to establish that he was "qualified" for his job within the m e a n in g of the ADA. See 42 U.S.C.A. § 12112(a) (2005). The ADA defines a " Q u a lifie d individual with a disability" as: "a n individual with a disability who, with or without reasonable a cc o m m o d a t io n , can perform the essential functions of the e m p l o y m e n t position that such individual holds or desires. For t h e purposes of this subchapter, consideration shall be given to t h e employer's judgment as to what functions of a job are e s s e n t ia l, and if an employer has prepared a written description b e fo r e advertising or interviewing applicants for the job, this d e s c r ip tio n shall be considered evidence of the essential functions o f the job." 42 U.S.C.A. § 12111(8) (2005). Southwest argues that Carmona could not have established that he was q u a lifie d for his job because precedent from our Circuit holds that regular a t t e n d a n c e is a necessary qualification for most jobs, and Carmona's

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d is a b ility prevented him from attending his job regularly. See generally S m ith v. Lattimore Materials Co., 287 F. Supp. 2d 667, 672 (E.D. Tex.), aff'd, 7 7 F. App'x 729 (5th Cir. 2003) ("Reporting on time and regular attendance is a n essential function of any job."). T h e district court disagreed with Southwest, finding that the evidence in t r o d u c e d at trial was sufficient to allow a reasonable jury to conclude that flig h t attendants' schedules at Southwest were extremely flexible. Therefore, t h e district court reasoned that, while regular attendance might be a r e q u ir e m e n t of most jobs, it was not a requirement of Carmona's position at S ou thw est. W e are sympathetic to the argument that Carmona was not qualified to b e a flight attendant at Southwest because his disability prevented him from s h o w in g up for work on scheduled days. Although the evidence showed that S o u th w e s t's flight attendants have nearly unlimited discretion in d e t e r m in in g when and how often they want to work, it did not show that they m a y skip the days they have scheduled at will. The attendance policy itself w a s evidence that, once a flight attendant scheduled himself to work on a p a r tic u la r day, he had to go to work on that day or find a substitute. Carmona introduced evidence that there were "reserve" flight a t te n d a n t s available at Southwest's base stations, but the evidence also o v e r w h e lm in g ly indicated that these reserve flight attendants were e m e r g e n c y measures only. There were limited numbers of reserve flight a t te n d a n t s , they were only available at certain airports, known as "base c it ie s ," and Southwest often ran out of them by noon. Therefore, while a r e g u la r attendance schedule was not an essential requirement of Carmona's

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p o s it io n , Southwest could have argued that attendance on scheduled days w a s required. B u t under the facts of this case, Southwest could not have prevailed on t h is argument, either, because there was sufficient evidence that its own a c tio n s reflected that attendance on scheduled days was not required. Southwest approved Carmona's intermittent FMLA leave,3 which permitted C a r m o n a to miss over half of each working month without notice. Southwest's attendance policy then prevented these absences from being c o u n t e d against him. If Southwest had denied Carmona's request for in t e r m it t e n t FMLA leave, it might have had a strong argument that as a m a tt e r of law Carmona was not qualified to work as a flight attendant. However, under the facts of this case, it could reasonably be found that S o u th w e s t essentially conceded that Carmona was qualified by granting him in t e r m it t e n t FMLA leave and then tolerating his FMLA-approved absences fo r seven years. Furthermore, Southwest did not assert at trial that it had t e r m in a t e d Carmona because his disability prevented him from showing up to w o r k consistently on his scheduled days. And it does not do so now. Instead, S o u t h w e s t argues that it terminated him because it believed that he had v io la te d its attendance policy. The jury could reasonably find that Carmona was a "qualified person w it h a disability" within the meaning of the ADA. D . Discriminated Against "Because of" His Disability T h e final element Carmona needed to establish in order to prevail on h is ADA claim was that Southwest discriminated against him "because of" his d is a b ility when it terminated him. See 42 U.S.C.A. § 12112(a) (2005). Once

3

Albeit through a third-party administrator.

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a n employer has produced sufficient evidence to support a nondiscriminatory e x p la n a t io n for its decision to terminate an employee, the employee may " e s t a b lis h that he was the victim of intentional discrimination `by showing t h a t the employer's proffered explanation is unworthy of credence.'" Reeves v. S a n d e r so n Plumbing Prod., Inc., 120 S.Ct. 2097, 2106 (2000) (quoting Texas D e p t. of Community Affairs v. Burdine, 101 S.Ct. 1089, 1095 (1981)). "[I]t is p er m iss ib le for the trier of fact to infer the ultimate fact of discrimination f r o m the falsity of the employer's explanation." Reeves, 120 S.Ct. at 2108 (e m p h a s is in original). Southwest asserted at trial that it had fired Carmona for violating its a t t e n d a n c e policy. Carmona introduced evidence in the form of documents a n d testimony that five other flight attendants had reached or exceeded t w e lv e attendance points without being terminated. Southwest admitted that a ll five of these flight attendants were female, but their identities were not d is c lo s e d . The district court admitted portions of their attendance records in P la in t iff's Exhibits 4 through 9. Plaintiff's Exhibits 7 and 8 were taken from t h e same employee's record. Because the names of these employees were w it h h e ld , we will refer to each by the number of the exhibit that contained h e r employment records. Southwest argues on appeal, as it argued at trial, that none of these e m p lo y e e s ' situations were similar to Carmona's. Clark testified that E m p l o y e e s 4, 5, and 9 were not terminated, even though they reached or e x ce e d e d twelve attendance points, because they were not timely issued one o r more of the warning letters that had to be issued before termination could o c c u r under the Agreement between Southwest and its flight attendants. However, as Carmona's attorney noted at trial, and as Carmona argues now, t h e memoranda found in Plaintiff's Exhibits 4, 5, and 9 all state that these 21

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e m p lo y e e s "were issued all letters of discipline timely." (Emphasis added.) Clark attempted to resolve this apparent discrepancy by testifying that these s ta te m e n ts indicated that the employees in question had been issued timely a ll letters of discipline up to, but not including, their termination letters. While this explanation may be plausible, the jury was not required to believe it . The explicit, unqualified statement contained in each memorandum that a ll letters of discipline had been issued timely provided grounds for a r e a s o n a b le jury to reject Clark's testimony that the statements were im p l ic it ly qualified. In conducting a review for the sufficiency of the evidence, w e accept all credibility choices made by the jury. Goodman v. Harris C o u n ty , 571 F.3d 388, 398 (5th Cir. 2009), pet. denied, ___ S.Ct. ___, 2010 WL 1 5 4 9 8 0 , ___ S.Ct. ___, 2010 WL 154983 (2010). Accordingly, although the is s u e is indeed a close one, we ultimately conclude that Carmona's jury r e a s o n a b ly could have found that Southwest had allowed other flight a tt e n d a n ts to exceed twelve points without being terminated. Southwest also argues that the female employees whose records were in t r o d u c e d in Plaintiff's Exhibits 4 through 9 were not proper comparators for t h e purpose of establishing discrimination, because Carmona did not offer any p r o o f that these women were individuals without disabilities. The logic b e h in d this argument is that if these women were also disabled, but allowed t o keep their jobs, then no reasonable jury could have inferred that Carmona's d is a b ilit y was a motivating factor in his discharge. Carmona argues that the ju r y was entitled to assume Employees 4 through 9 were not disabled, b e c a u s e no evidence suggested that they were disabled, and most individuals a re not disabled. W e agree that Southwest's argument on this issue is without merit. It is generally recognized that a party has the burden of proof on an issue when 22

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t h e facts with regard to the issue lie peculiarly within the knowledge of that p a r ty . McCormick on Evidence 950 (3d ed., Edward W. Cleary ed.,1984). Another relevant principle is that the risk of failure of proof may properly fall u p o n the party who contends that the more unusual event has occurred. Id. In this case, Southwest withheld all information about Employees 4 through 9 except for their sex. There is no doubt that most people are not individuals w it h disabilities. Therefore, if Southwest knew that one or more of E m p l o y e e s 4 through 9 was disabled, it bore the burden of coming forward w it h that information at trial. Indeed, it seems strange that Southwest w o u ld not have introduced evidence that one or more of these employees was d is a b le d , if it were true, given the detrimental effect this information would h a v e had on Carmona's case. Therefore, we find that the jury was entitled to assume, based on the absence of proof to the contrary and the probabilities of t h e situation, that the employees represented by Exhibits 4 through 9 were n o t disabled. Moreover, some of Carmona's trial evidence supported an inference that h is disability-related absences irritated his supervisors. Clark characterized C a r m o n a 's attendance record between 2003 and 2005 as "one of the worst o n e s that we had," noting that "roughly 40 percent of the time that's r e p r e s e n te d on the calendar is sick time." However, Clark admitted that the v a s t majority of these absences could not be counted against Carmona b e c a u s e of his intermittent FMLA leave and his doctors' notes. Michael M a n k in , Clark's superior, testified that Carmona's attendance was "e x tr e m e ly poor." All things considered, a reasonable jury could properly in fe r that, when Carmona's record eventually indicated that he had exceeded tw e lv e points, his supervisors jumped at the chance to terminate him and did e v e r y t h in g they could to ensure that his points would still exceed twelve after 23

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h is pre-termination review, even though leniency had been granted to s im ila rly -s it u a te d employees who were not disabled. Though, as stated, the is su e is a close one, we ultimately conclude that a reasonable jury could have fo u n d Southwest's proffered explanation for Carmona's discharge was false a n d that the true reason was his disability. E. Conclusion A reasonable jury could have concluded, based on the evidence in this c a s e , that Carmona was an "individual with a disability" within the meaning o f the ADA, that he was "qualified" for his position within the meaning of the A D A , and that he was terminated "because of" his disability. See 42 U.S.C.A. § § 12102, 12111, 12112 (2005). Therefore, we hold that the district court e r r e d in granting judgment as a matter of law to Southwest. II. Reinstatement C a r m o n a argues that if the district court erred in granting judgment as a matter of law to Southwest, then it also erred in denying his motion for r e in s ta t e m e n t . We review a district court's determination of whether or not to grant reinstatement for abuse of discretion. Brunneman v. Terra Int'l, Inc., 9 7 5 F.2d 175, 180 (5th Cir. 1992). T h e ADA adopts the remedies set forth in Title VII. See 42 U.S.C. § 1 2 1 1 7 (2005) ("The powers, remedies, and procedures set forth in sections 2 0 0 0 e ­ 4 , 2000e­5, 2000e­6, 2000e­8, and 2000e­9 of this title shall be the p o w e r s , remedies and procedures this subchapter provides to . . . any person a lle g in g discrimination on the basis of disability in violation of any provision o f this chapter . . . ."). Title VII states in part that, "If the court finds that the r e s p o n d e n t has intentionally engaged in . . . an unlawful employment practice c h a r g e d in the complaint, the court may . . . order such affirmative action as m a y be appropriate, which may include, but is not limited to, 24

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r e in s t a te m e n t . . . ." 42 U.S.C. § 2000e­5(g)(1) (2003). We have held that the d e c is io n of whether or not to grant reinstatement is within the discretion of t h e district court and that a court may properly consider factors such as the a v a ila b ilit y of positions, the plaintiff's current employment status, and the im p a c t reinstatement would have on employee relations in making its d e c is io n . Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254-55 (5 th Cir. 1995). Southwest argues that the district court did not make the decision to d e n y Carmona's motion for reinstatement independently of its decision to g r a n t judgment as a matter of law to Southwest. Southwest notes that it did n o t even have time to respond to Carmona's motion for reinstatement before th e district court ruled on it. Therefore, Southwest argues that we should r e m a n d the issue of reinstatement to the district court if we determine that t h e district court erred in granting judgment as a matter of law to Southwest, s o that the district court may fully examine the issue and the relevant factors. T h e district court addressed the issue of reinstatement in a single s e n t e n c e : "After consideration of the Defendant's motion and renewed motion fo r judgment as a matter of law and in light of the evidence adduced at trial, t h e Court declines to exercise its equitable jurisdiction to reinstate Mr. C a r m o n a ." The district court made no factual findings regarding the fe a s ib ilit y of reinstating Carmona that could support its order denying r e in s ta t e m e n t independently of its decision to grant judgment as a matter of la w to Southwest. We agree with Southwest that the district court's order d e n y in g reinstatement should be vacated and this issue should be remanded t o the district court for reconsideration in light of our holding that it was

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e r r o r to grant Southwest's motion for judgment as a matter of law.4 C O N C L U S IO N F o r the foregoing reasons, we reverse the portion of the district court's o r d e r granting Southwest's motion for judgment as a matter of law, vacate t h e portion of the district court's order denying Carmona's motion for r e in s ta te m e n t , and remand the case with instructions that judgment be e n t e r e d for Carmona in accordance with the jury's verdict and that Carmona's m o tio n for reinstatement be reconsidered in light of our holding. REVERSED in part, VACATED in part, and REMANDED.

Carmona's final assignment of error is that the district court erred in refusing to grant him a continuance so that he could obtain the testimony of Ilgen. We decline to reach this issue, because we hold that the district court erred in granting Southwest's motion for judgment as a matter of law.

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