United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE
action alleging claims for interference and retaliation under
the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. § 2601 et seq.,
plaintiff Amy DeVoss (“DeVoss”) moves for partial
summary judgment on her interference claim, and defendant
Southwest Airlines Co. (“Southwest”) moves for
summary judgment on both of DeVoss's claims. For the
reasons that follow, the court grants Southwest's motion,
denies DeVoss's motion, and dismisses this action with
prejudice by judgment filed today.
DeVoss worked for Southwest as a flight attendant beginning
in 2014. She resided in Tampa, Florida and commuted
to her base at Baltimore-Washington International Airport
(“BWI”) in Baltimore, Maryland.
employment is subject to the “Agreement between
Southwest Airlines Co. and the Flight Attendants of Southwest
Airlines Co. as Represented by the Transport Workers Union of
America, AFL-CIO dated June 1, 2008” (“Flight
Attendant CBA”). The Flight Attendant CBA outlines two
policies that are relevant to this case. First, it
establishes an “Attendance Policy”-a points-based
system in which Southwest reserves the right to terminate
flight attendants based on attendance
infractions. Second, it establishes a “Commuter
Policy.” This policy provides that flight attendants
commuting via air travel to their assignments will not be
assessed points under the attendance policy if they are late
or miss an assignment because their commuting flight is full.
Commuting flights qualify under this policy only if they are
scheduled to arrive no less than one hour before a flight
attendant's reporting time.
lawsuit arises out of Southwest's termination of
DeVoss's employment. On June 24, 2015 DeVoss contacted a
Southwest scheduling representative to report that she would
be late for her shift due to a delay of her commuter flight.
DeVoss first sought to invoke the Commuter Policy so that she
would not receive attendance points. When the representative
informed DeVoss that her flight did not qualify under the
policy, DeVoss responded:
DeVoss: I'm calling in sick, then, because
that's-I'm not going-I'm not going to have you
record me saying anything (unintelligible) that I'm
calling the union, and this is ridiculous.
[Southwest representative]: Okay. So you are calling in sick
for this trip, right?
[Southwest representative]: Okay.
DeVoss: I have to, huh?
[Southwest representative]: I'm sorry?
DeVoss: Guess I have to, huh?
D. App. 6. After discussing alternative commuter flights to
BWI that day, DeVoss responded:
DeVoss: Do you know how many points you get for a no-show
versus a sick call?
[Southwest representative]: Well, a no-show is two and a half
DeVoss: I'm going to call in sick.
[Southwest representative]: Okay. So you're sick?
Id. at 11. Based on a recording of this
conversation, Southwest commenced an internal investigation
conducted by BWI Assistant Base Manager Carolene Goulbourne
(“Goulbourne”). Goulbourne found it suspicious
that DeVoss initially sought to invoke the Commuter Policy
and then switched to a request for sick leave. During the
fact-finding meeting, DeVoss offered Goulbourne a June 25,
2015 doctor note and indicated that the note had already been
submitted to Southwest's Attendance & Leave
Department. Following Goulbourne's finding that
DeVoss had committed a dishonesty violation, Southwest
terminated DeVoss on July 7, 2015 for a Class 1, Section 2
dishonesty violation under the Flight Attendant Work
lawsuit, DeVoss attempts to invoke the protections of the
FMLA. Southwest first notified her of her FMLA eligibility on
June 8, 2015, weeks before the incident in question. DeVoss
had informed Southwest that she would be absent from work for
four days (June 7, 2015 to June 11, 2015) due to sinusitis.
Although DeVoss had missed work on several prior occasions,
she was not FMLA eligible until her June 7-11
absence. In response to DeVoss's request for
time off, Southwest sent her an FMLA notice on June 8, 2015,
along with a determination that she was eligible for FMLA
leave. Southwest alerted DeVoss to the process through which
she could secure such leave, and directed her to submit an
FMLA application by June 23, 2015. The notice stated that
DeVoss's failure to do so could result in a delay or
denial of leave. DeVoss never submitted the FMLA application
and never contacted her leave coordinator in connection with
her June 7-11 absence or the June 24 incident.
then filed this suit in state court, and Southwest removed
the case to this court. DeVoss alleges that Southwest
interfered with her leave and terminated her for attempting
to exercise her rights under the FMLA. She moves for partial
summary judgment on her FMLA interference claim. Southwest
opposes the motion and moves for summary judgment dismissing
DeVoss's claims under the FMLA for interference and
moves for summary judgment on claims for which DeVoss will
have the burden of proof at trial. Because DeVoss will have
the burden of proof, Southwest's burden at the summary
judgment stage is to point the court to the absence of
evidence of any essential element of DeVoss's claim.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once it does so, DeVoss must go beyond her pleadings
and designate specific facts demonstrating that there is a
genuine issue for trial. See Id. at 324; Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc) (per curiam). An issue is genuine if the evidence
is such that a reasonable jury could return a verdict in
DeVoss's favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). DeVoss's
failure to produce proof as to any essential element of the
claim renders all other facts immaterial. TruGreen
Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.
Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory
where DeVoss fails to meet this burden. Little, 37
F.3d at 1077.
DeVoss will have the burden of proof at trial on her FMLA
interference claim, to be entitled to summary judgment on
this claim, she “must establish ‘beyond
peradventure all of the essential elements of the
claim[.]'” Bank One, Tex. N.A. v. Prudential
Co. Of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995)
(Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986)). This means that DeVoss must
demonstrate that there are no genuine and material fact
disputes and that she is entitled to summary judgment as a
matter of law. See Martin v. Alamo Cmy. Coll. Dist.,
353 F.3d 409, 412 (5th Cir. 2003). “The court has noted
that the ‘beyond peradventure' standard is
‘heavy.'” Carolina Cas. Ins. Co. v.