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DeVoss v. Southwest Airlines Co.

United States District Court, N.D. Texas, Dallas Division

November 13, 2017

AMY DEVOSS, Plaintiff,



         In this 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.

         I DeVoss worked for Southwest as a flight attendant beginning in 2014.[1] She resided in Tampa, Florida and commuted to her base at Baltimore-Washington International Airport (“BWI”) in Baltimore, Maryland.

         DeVoss's 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.[2] 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.

         This 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?
DeVoss: Yep.
[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 points.
DeVoss: I'm going to call in sick.
[Southwest representative]: Okay. So you're sick?
DeVoss: Yep.

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.[3] 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 Rules.[4]

         In this 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.[5] 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.

         DeVoss 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 retaliation.


         Southwest 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.

         Because 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. ...

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