United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT
AND CONCLUSIONS OF LAW
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE
Tracy Corbin sued Southwest Airlines, Inc. in September 2017,
asserting discrimination, retaliation, and
reemployment-denial claims under the Uniformed Services
Employment and Reemployment Rights Act, 38 U.S.C.
§§ 4301 et seq. (Docket Entry No. 1). Ms.
Corbin, a Southwest pilot and former Air Force Reserve
officer, alleges that Southwest failed to promptly reemploy
her after she injured her back on military leave in April
2007. Ms. Corbin alleges that in May or June 2007, she made
four requests to Southwest for reemployment in a nonflying
position while she recovered, but that Southwest denied those
requests. In January 2008, Ms. Corbin was medically cleared
to fly as a pilot.
Corbin alleges that she should have been reemployed in a
temporary nonflying position for roughly the last five or six
months of 2007. Southwest argues that Ms. Corbin did not ask
for reemployment until December 2007, and then in a flying
position. Southwest argues that because Ms. Corbin waited
over 10 years to file suit after she allegedly made the
requests for temporary reemployment in a nonflying position,
the court should bar her claims under laches.
is an equitable affirmative defense that requires the
defendant to show that: the plaintiff unreasonably delayed
bringing a claim; the delay was inexcusable; and the delay
materially prejudiced the defendant. See Retractable
Techs., Inc. v. Becton Dickinson & Co., 842 F.3d
883, 900 (5th Cir. 2016). In October 2018, the court granted
summary judgment to Southwest on Ms. Corbin's
discrimination and retaliation claims. (Docket Entry No. 44
at 34-37). The court also found that Ms. Corbin unreasonably
delayed bringing this lawsuit for over 10 years after her
claims accrued, and that the delay was inexcusable.
(Id. at 24-25). On August 6, 2019, with the
parties' agreement, the court held a bench trial on
whether Ms. Corbin's delay materially prejudiced
Southwest's ability to present a defense. (Docket Entry
on a careful review of the pleadings, record, applicable law,
and the arguments of counsel, the court finds and concludes
that Ms. Corbin's delay in bringing this lawsuit
materially prejudiced Southwest's ability to defend
against her claims. The court also finds and concludes the
delay also materially prejudiced Southwest by inflating Ms.
Corbin's damages. Laches bars Ms. Corbin's remaining
claims and, as a result, her complaint is dismissed, with
prejudice. Final judgment is separately entered. The reasons
are set out below.
parties agree on the following facts. Ms. Corbin has worked
as a pilot for Southwest since July 2002. (Docket Entry No.
53 at 2, 5). She is based in Houston and still works for
Southwest. Ms. Corbin was also an Air Force Reserve officer
from 2002 until 2012, when she left the military with an
honorable discharge. Ms. Corbin's Reserve duty required
her to occasionally take leave from Southwest to complete her
military service obligations at Columbus Air Force Base in
March 26, 2007, Ms. Corbin went on military leave for Reserve
duty. (Id. at 9). Around April 1, 2007, Ms. Corbin
injured her back while serving with her Reserve unit.
(Id.). In May 2007, neurosurgeons diagnosed Ms.
Corbin as 100% disabled and instructed her to remain
“off work” until July 17, 2007. (Id.).
From June 11 to June 21, 2007, Ms. Corbin reported to her
military unit at Columbus Air Force Base, and she was paid by
the military. (Id. at 10). On July 18, 2007, Ms.
Corbin had back surgery. (Id.). In December 2007,
Ms. Corbin's neurosurgeon gave her a return-to-work note
authorizing her to fly on January 1, 2008. (Id.). On
January 4, 2008, Ms. Corbin returned to Southwest's
active pilot roster. (Id.).
Findings of Fact
case turns on whether, in May or June 2007, Ms. Corbin asked
Southwest for temporary reemployment in a nonflying position.
Ms. Corbin alleges that she made four oral requests for
reemployment to Mr. William Kass, her Southwest supervisor.
Ms. Corbin alleges that she asked only Mr. Kass for
reemployment, and that the requests were made over the phone
and not in writing. (Id.; Docket Entry No. 23 at 4).
Kass testified by video deposition on June 7, 2019. (Docket
Entry No. 96-1 at 1). In 2007, Mr. Kass was Southwest's
chief pilot in Houston. (Id. at 3). He supervised
over 800 Southwest pilots and was responsible for
“their care and wellbeing.” (Id.). Mr.
Kass addressed pilot needs and “issue[s] with their
flying abilities.” (Id.). Pilots would call
Mr. Kass to take sick leave, military leave, or vacation
days. Mr. Kass's office would then create a “pull
sheet, ” an internal document listing the reason why
the pilot could not fly. (Id.). Southwest would
change the pilot schedule based on the pull-sheet entry.
(Id.). Three assistant chief pilots and three
executive assistants worked for Mr. Kass by taking pilot
calls and filling out pull sheets. (Id. at 7). The
pull sheets do not, however, reflect or include requests for
temporary reemployment to a nonflying position.
Kass testified that in 2011, he suffered a traumatic brain
injury in a car accident, resulting in short- and long-term
memory loss. (Id. at 2). The car accident had a
greater impact on Mr. Kass's short-term memory, but his
long-term memory “has [also] been affected.”
(Id.). In addition to having difficulty recalling
information, Mr. Kass has experienced dizziness, loss of
balance, and depression because of the accident, which
prevented him from traveling to testify. (Id.). Mr.
Kass worked as a contract negotiator for Southwest until
2016, when he went on long-term medical leave. (Id.
at 3). He is currently on a long-term medical leave from the
company and is not expected to return to work. (Id.
Kass testified that he does not recall Ms. Corbin asking him
for reemployment in a nonflying position in May or June 2017.
(See Id. at 3). He could not say whether Ms. Corbin
had or had not made the requests, instead testifying that his
injury and the passage of 12 years made him unable to recall
whether he talked to Ms. Corbin at all between April 2007 and
December 2007. (See Id. at 6).
cross-examination, Ms. Corbin's counsel asked Mr. Kass
hypothetical questions about whether, in 2007, he would have
remembered a pilot calling him. Mr. Kass testified that it
would be difficult to remember any particular request after
12 years: “I really-it's hard-I challenge anybody
in this room to remember conversations they had . . . 12
years ago.” (Id.). Mr. Kass testified that he
supervised over 800 pilots. (Id.). But Mr. Kass also
testified that a request submitted by a pilot injured in
military Reserve or other duty for temporary reemployment in
a nonflying position would be unusual, and that he did not
recall ever “fac[ing] that situation.”
(Id. at 7). That raises a plausible inference that
if Ms. Corbin had made the requests she alleges, Mr. Kass
would have recalled the requests because ...