Petition for Writ of Certiorari — Grubb v. Southwest Airlines (No. 08-873)

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NO. ——__ OFFICE OF THE Ci ERK

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Supreme Court of the Anited States

HERBERT GRUBB,

Petitioner,

Vv.

SOUTHWEST AIRLINES,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

KONRAD KuczAkK

Counsel of Record

ATTORNEY AT LAW

130 WeEsT SECOND STREET

SUITE 1010

Dayton, OH 45402

PHONE: 937 228 8363

Fax: 937 228 0520

Counsel for Petitioner

January 6, 2009

Becker Gallagher + Cincinnati, OH + Washington, D.C. - 800.890.500)

QUESTIONS PRESENTED FOR REVIEW

This court recently repudiated burden-shifting in

an ADEA case (Mescham v Knolls Atomic Power

Laboratory,128 S. Ct. 2395), citing the lack of

congressional intent that traditional burdens of proof

should be shifted. (7d. at 2400) Yet, the issue remains

unsettled as to whether or not the court-created

McDonnell-Douglas Corporation v. Green, (411 U. S.

792) burden-shifting protocol should continue to be

utilized when courts decide FMLA and ADA cases.

Numerous circuit courts have rejected the use of

burden shifting in FMLA entitlement/nterference

cases and ADA reasonable accommodation cases. Yet

other circuit courts, including the Fifth Circuit below,

continue to utilize the McDonnell Douglass burden

shifting protocol and its progeny for FMLA

entitlement/jnterference cases and ADA reasonable

accommodation cases.

This Petition addresses the question of whether or

not this court should decide the propriety of the

continued application of burden shifting under

McDonnell-Douglass and its progeny for FMLA and

ADA cases in general, and in FMLA

entitlement/interference cases and ADA reasonable

accommodation cases in particular.

PARTIES TO THE PROCEEDINGS

Petitioner Herbert Grubb is a natural person.

Respondent, Southwest Airlines, Inc. (SWA) is a

publicly-held common carrier by air, a_ non-

governmental corporation.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... 1

PARTIES TO THE PROCEEDINGS ........... il

Thieme OF CONTENUG 26. cc cece een esnenes ili

TABLAS OF AUTHOGBETES ..... 2... e ec cen es vil

CFSE UCTINGP NUR 56 a oe beds ae ee ees wakane 1

Par Wa 66 ooh eh sb sae eee ee 1

STATUTORY PROVISIONS INVOLVED ....... 1

STATEMENT OF THE CASE ............... 5

I. BACKGROUND FACTS ANDISSUES ... 5

Il. THE DECISION OF THE DISTRICT

EE 6 oes Se a ee 8

If. THE DECISION OF CIRCUIT COURT OF

Pee ee he ok ee 9

REASONS FOR GRANTING THE PETITION .. 13

I. GRANTING THE WRIT WILL RESOLVE

THE ISSUE OF WHETHER OR NOT THE

MCDONNELL-DOUGLASS BURDEN

SHIFTING PROTOCOL IS APPROPRIATE

IN THE ABSENCE OF ANY INDICATION

THAT CONGRESS INTENDED BURDEN-

GE SEU. a Sng eee 13

CONCLUSION

Il. GRANTING THE WRIT WILL RESOLVE A

CONFLICT AMONG THE CIRCUITS AS

TO WHETHER OR NOT BURDEN

SHIFTING [S PROPERLY APPLIED TO

FMLA INTERFERENCE/ENTITLEMENT

Ce Cka es SN nee ee ene te

. GRANTING THE WRIT WILL RESOLVE A

CONFLICT AMONG THE CIRCUITS AS

TO WHETHER OR NOT THE

MCDONNELL-DOUGLASS BURDEN-

SHIFTING PROTOCOL IS PROPERLY

APPLIED TO ADA REASONABLE

ACCOMMODATION CASES ...........

.GRANTING THE WRIT WILL RESOLVE

THE ISSUE OF WHETHER OR NOT AN

EMPLOYER CAN ESCAPE LIABILITY

FOR DENYING FMLA LEAVE BY

TERMINATING AN EMPLOYEE WHO

SEEKS FMLA LEAVE TO TREAT A

SERIOUS HEALTH CONDITION THAT

MAKES THE EMPLOYEE UNABLE TO

PERFORM THE FUNCTIONS OF THE

POSITION OF SUCH EMPLOYEE BY

MERELY ARTICULATING “POOR

PERFORMANCE” WHICH RESULTS FROM

THAT CONDITION.

6 6 SS &@2 2 424 4 6 2S 8 ROS

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APPENDIX

Appendix A: Fifth Circuit Opinion, dated

October 10, 2008

a ee oe oe a on oe a a ey ee Ae er ek a eer eee ee

Appendix B: District Court Order, dated July

is eg Le ok he a gue eae 17a

Appendix C: District Court Memorandum

Opinion and Order/Judgment, dated June 11,

aa cAMME Se oer ee ot, oy a hu ee ee 18a

Appendix D: Excerpt from Plaintiffs Original

yo ae | i es 38a

Appendix E: Instructor Flight Simulator

Observation Form, [USCA5 505-506] ...... 40a

Appendix F: Southwest Airlines Employer's

Notice of Family and Medical Leave Status,

EE are cod nos conn stake ke ee 44a

Appendix G: Henry G. Raroque, Jr., M.D.,

North Texas Neuroscience Center physician’s

UES TFC AD GUS) Ck ww cc ve eee ew weses 48a

Appendix H: Excerpt of Transcript page 137,

dated August 15, 2006, [USCA5 720] ...... 50a

Appendix I: Excerpt of Plaintiffs Brief in

Support of Piaintiffs Response to Defendant’s

Motion for Summary Judgment, dated

November 7, 2006, [USCA5 779-782] ...... 52a

Appendix J: Return to Work/School

Authorization (fold-out exiibit), [USCA5

Be oes ees a ee 59a

Appendix K: Henry G. Raroque, Jr., M.D.,

North Texas Neuroscience Center Letter to

James Kravetz, dated April 7, 2004, [USCA5

Ne en aly Sate eae Eee ae eke 60a

Appendix L: Henry G. Raroque, Jr., M.D.,

North Texas Neuroscience Center Letter to

James Kravetz, dated April 26, 2004, [USCA5

ey HEE gaa Ste tat i eae ARE 2S nen pa 66a

Appendix M: Excerpt of David Colunga

Transcript pages 53-54, [|USCA5 917-918] .. 69a

Appendix N: Excerpt of David Colunga

Transcript pages 108-109, [USCA5 923-

Ma aS Sa eS ae Maer ag a chen EO 72a

Appendix O: Excerpt of David Colunga

Transcript, (\USCAS 1036} ............... 75a

Appendix P: Excerpt of David Colunga

Transcript pages 110-113, [USCA5 1874] .. 77a

Vil

TABLE OF AUTHORITIES

CASES

Aka v. Washington Hosp. Center,

156 F.3d 1284 (D.C. Cir. 1998) (en banc) .... 21

Barth v. Gelb,

mee Lee ta, St. EB) wc hc we eee 21

Bodenheimer v. PPG Industries, Inc.,

5 F.3¢a 955 (Sth Cir. 1993) ..........-.006- 20

Byrne v. Avon Products, Ine.,

328 F.3d 379 (7th Cir. 2003), Cert denied Avon

Prods. v. Byrne 540 U.S. 881; 124 S. Ct. 327;

157 L. Ed. 2d 147; 2003 U.S. LEXIS 6290; 72

U.S.L.W. 3241; 14 Am. Disabilities Cas. (BNA)

1568; 8 Wage & Hour Cas. 2d (BNA) 1920... 25

Colburn v. Parker Hannifin / Nichols Portland Div.,

426 F.3d 325 (ist Cir. 2005) ... 1... ees. 19

Daigle v. Liberty Life Insurance Company,

70 Fo O08 (Oth Civ, 19GB) 2 oc cei 20

Duckworth v. Pratt & Whitney, Inc.,

Ree ee es SO es ek pec ee ee oe 18

FTC v. Morton Salt Co.,

334 U.S. 37, 68 S. Ct. 822, 92 L. Ed. 1196,

OG 7, 6A Pe eee. + hb iies nae: 13, 14

Higgins v. New Balance Athletic Shoes, Inc.,

194 F .d0 262 (lat Cir. 19990) ...........0.. 21

Vill

Javierre v. Central Aitagracia,

217 U.S. 502, 30S. Ct. 598,

a ee es kewkawxeas 13

Johnson v. Gambrinus Compuny/Spoetzl Brewery,

116 F.3d 1052 (5th Cir. 1997) ............. 21

Lenker v. Methodist Hosp.,

210 F.Ga Fea (itn Cir 2002) ... 2. cc cee 21

McBride v. CITGO Petroleum Corp..,

281 F.3d 1099 (10th Cir. 2002) ......... 11, 23

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 36 L. Ed. 2d 668,

FES Te iy oe: 2} | Er passim

Mescham v Knolls Atomic Power Laboratory,

$e &. CL. ZBS (ZK)... ww wes i, 13, 14, 25, 26

O’Connor v. PCA Family Health Plan, Inc.,

200 F 3G eee (18 Cir. 2000) 2... sc ec eee 17

Parris v. Miami Herald Publ’g Co.,

216 F.3d 1298 (11th Gir. ZOGO) ........6-66: 17

Pebbles v. Potter,

S364 F.G0 761 (Gth Cir. ZOOG? . ww cc cece ne 21

Ragsdale v. Wolverine World Wide, Inc.,

152 L. Ed. 2d 167, 122 S. Ct. 1155 (2002).... 17

Rice v Sunrise Express,

202 $d 1008, 2000 U.S. App. LEXIS 6295, 140

Lab. Cas. (CCH) P34,036; 46 Fed. R. Serv. 3d

(Callaghan) 929, (Cert Denied) 531 U.S. 1012;

121 S. Ct. 567; 148 L. Ed. 2d 486; 2000 U.S.

LEXIS 7815; 69 U.S.L.W. 3363; 6 Wage & Hour

Cas. Sa (re sa esses 15, 16, 19

Riel v. Electronic Data Sys. Corp.,

OS F.G GIG TOG ate A ce ces 2]

Schaffer v. Weast,

546 U.S. 49, 126 S. Ct. 528,

163 L. Bid. Ze er GE ce eee ee 14

Smith v. Diffee Ford-Lincoln-Mercury, Inc.,

298 F.3d 955, 2002 U.S. App. LEXIS 15280, 146

Lab. Cas. (CCH) P34,556; 83 Empl. Prac. Dec.

(OCH) PGR ese eee 19, 24

St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 113 S. Ct. 2742,

125 Li. BG. Bee et ee et ee 15, 21

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 101 S. Ct. 1089,

G7 L. od. 2G Ber Ceeeeee snes sss. 10, 15, 21

United States v. First City Nat. Bank of Houston,

386 U.S. 361, 87 S. Ct. 1088,

18 L. Ed. 24 TBE CS) ww... cs... ro, ae

William v. Channel Master Satellite Sys., Inc..,

101 F.3d 346 (4th Cir. 1996) .............. 21

Willis v. Conopco, Inc..,

108 F.8d 282 (11th Cir. 1997)

Yashenko v. Harrah’s NC Casino Co., LLC,

446 F.3d 541 (4th Cir. N.C. 2006) .......... 19

STATUTES

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See tres RE 6 oa « iv 0 ds eee eee 1,2

20 U.B.G. § SELMAN IMD) «occ ccc scvveves 0, 26

Be is © OO. cic ees ch earcersveress : oe Cee

Rk 4 ee i. . > i. rere mr Care ome rt 22

£ ff ko 2. i) > re are ross Ty 2,3,4

gts [em 6) 3: rear rere 4,5

REGULATIONS

BO Cur Be GSMA BGA) 6c ect uen Teeter. 5

oom fe 8): + | rrr ere a 5

Ree eM bie oe SF Serr er 5

Lek A Rt 5) ere ee re ee 18

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OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit (App. la-16a) is unpublished but

is unofficially reported at (2008 U.S. App. LEXIS

21412, ; 21 Am. Disabilities Cas. (BNA) 231.)

The Memorandum Opinion and Order (App. 18a-

37a) of the Northern District Court of Texas is

unpublished but is unofficially reported at 2007 U.S.

Dist. LEXIS 42090; 19 Am. Disabilities Cas. (BNA)

719; 41 Employee Benefits Cas. (BNA) 2654; 12 Wage

& Hour Cas. 2d (BNA) 1338.

JURISDICTION

The judgment of the court of appeals (App. la) was

entered October 10, 2008. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254 (1).

STATUTORY PROVISIONS INVOLVED

29 U. S. C. § 2612 (a)(1d) which provides in

relevant part:

§ 2612. Leave requirement

(a) In general.

(1) Entitlement to leave. Subject to section 103

[29 USCS § 2613], an eligible employee shall be

entitled to a total of 12 workweeks of leave

during any 12-month period for one or more of

the following...

(D) Because of a serious health condition that

makes the employee unable to perform the

functions of the position of such employee.

42 U.S.C. § 12111 (8) through (10) which provides:

(8) Qualified individual with a disability

The term “qualified individual with a disability”

means an individual with a disability who, with

or without reasonable accommodation, can

perform the essential functions of the

employment position that such individual holds

or desires. For the purposes of this subchapter,

consideration shall be given to the ermployer’s

judgment as to what functions of a job are

essential, and if an employer has prepared a

written description before advertising or

interviewing applicants for the job, this

description shall be considered evidence of the

essential functions of the job.

(9) Reasonable accommodation

The term “reasonable accommodation” may

include

(A) making existing facilities used by employees

readily accessible to and usable by individuals

with disabilities; and

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant

position, acquisition or modification of

cquipment or devices, appropriate adjustment

or modifications of examinations, training

materials or policies, the provision of qualified

readers or interpreters, and other similar

accommodations for individuals’ with

disabilities.

(10) Undue hardship

(A) In general

The term “undue hardship” means an action

requiring significant difficulty or expense, when

considered in light of the factors set forth in

subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation

would impose an undue hardship on a covered

entity, factors to be considered include—

(i) the nature and cost of the accommodation

needed under this chapter;

(ii) the overall financial resources of the facility

or facilities involved in the provision of the

reasonable accommodation; the number of

persons employed at such facility; the effect on

expenses and resources, or the impact otherwise

of such accommodation upon the operation of

the facility;

(iii) the overall financial resources of the

covered entity; the overall size of the business of

a covered entity with respect to the number of

its employces; the number, type, and location of

its facilities; and

(iv) the type of operation or operations of the

covered entity, including the composition,

structure, and functions of the workforce of such

entity; the geographic’ separateness,

administrative, or fiscal relationship of the

facility or facilities in question to the covered

entity.

42 U.S. C. § 12112 (a) and (b)(5)(A)and(B) which

provides:

§ 12112. Discrimination

(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.

(b) Construction. As used in subsection (a), the

term “discriminate” includes--

(5) (A) not making reasonable accommodations

to the known physical or mental limitations of

an otherwise qualified individual with a

disability who is an applicant or employcc,

unless such covered entity can demonstrate that

the accommodation would impose an undue

hardship on the operation of the business of

such covered entity; or

(B) denying employment opportunities to a job

applicant or employee who is an otherwise

qualified individual with a disability, if such

denial is based on the need of such covered

entity to make reasonable accommodation to the

physical or mental impairments of the employee

or applicant;...

STATEMENT OF THE CASE

I. BACKGROUND FACTS AND ISSUES

Petitioner Herbert Grubb brought a claim against

Respondent Southwest Airlines for failure to make

reasonable accommodation under the American With

Disabilities Act (ADA) 42 USC § 12112 and aclaim for

interference with his right to leave under the Family

Medical Leave Act (FMLA) 29 U. S. C. § 2612

(a)(10(D)) (App. 38a-39a)

Grubb was employed as a flight simulator

instructor by Southwest Airlines, Inc., from March,

1999 to June 21, 2004 when Southwest fired him. He

was required to train Southwest’s captains, pilots,

FAA check airmen, Southwest’s management captains,

Southwest’s flight instructors, and Southwest’s flight

simulator instructors.

FAA regulations mandate the qualifications for

Southwest’s flight simulator instructors, (14 CFR

§ 121.142 (c)}) currency requirements, (14 CFR

§ 121.414 et. seq.) and require them to undergo

periodic “in line” observations, (14 CFR § 121.412

(f)(2)).

At all times during his tenure with Southwest,

Grubb maintained his federally mandated

qualifications, currency and passed the required “in

line” observations.

In 2002 Grubb began suffering from sleep apnea

which occasionally caused him to nod off for brief

periods of time (App. 60a-61a) when he was training

pilots in the flight simulator and at meetings.

Southwest accepted all of the FAA mandated

paperwork generated by Grubb thus certifying to the

FAA that training and certification was properly

performed, (App. 81la) and relieving Southwest from

any obligation to retrain any flight crews.

During a February 10, 2004, “in line” observations,

his evaluator noted, “Excellent interaction by

instructor and students.” (App. 41a) despite the fact

that he noted that Grubb, “Worked panel well, in

spite of numerous Apnea Lapses which were normally

short in duration (5-8 seconds) with only one lasting in

excess of 30 seconds. Did not miss any problems

students had during the period.” (App. 42a). (Upper

case in the original)

The evaluator concluded, “I mentioned that getting

on a regular schedule vs shifting schedule may help

his Sleep Apnea.” (App. 43a) (Upper case in the

original)

Thereafter Grubb consulted Dr. Henry G. Raroque,

Jr., M. D., (App. 60a-65a) for treatment for his sleep

apnea who provided a letter to South ‘est stating:

“Herbert Grubb is a patient in our clinic. He has been

advised to work the aft. shift (5:30 p. m. to 11 p. m.)

only.” (App. 48a) and confirmed that he sent this letter

directly to Southwest. (App. 67a) Mr. Grubb

personally requested that he work a particular shift to

accommodate his condition upon recommendation of

his physician. (App. 51a)

No accommodation by way of a set shift was ever

provided for simulator training or office hours even

though Mr. David Colunga, his immediate supervisor

had offered Grubb, “If you need your schedule

adjusted; whatever you need to get this taken care of,

just tellus. . . .” (App. 75a)

AJune YQ, 2004, “fact finding” meeting among David

Colunga, Mr. Robert Torti, (Southwest’s Flight

Operations Training Director) Mr. Jim Evans,

(Grubb’s union representative) and Mr. Grubb

concluded with the understanding that Grubb would

apply for FMLA leave to treat his sleep apnea. (App.

70a)

Grubb himself approached Monica O'Neill,

Southwest’s FMLA coordinator. (App. 44a) to secure

FMLA leave and received “Employer’s Notice of Family

and Medical Leave Act Status” from Southwest with

the assigned Southwest FMLA case number of

1323987. (R. 911).

In the district court David Colunga averred: “I

terminated Mr. Grubb on June 21, 2004. Attached

hereto as Exhibit N is a true and accurate copy of Mr.

Grubb’s termination letter. I set forth the reasons for

Mr. Grubb’s termination in this letter, namely his

behavioral problem of falling asleep at work.” The

timing of the termination on June 21, 2004, was

contrary to the Southwest Collective Bargaining

Agreement which requires a decision on the “Fact

Finding” within seven (7) days of the June 9, 2004 Fact

Finding.

Il. THE DECISION OF THE DISTRICT

COURT

In disposing of Mr. Grubb’s FMLA claim, the

District Court applied the McDonnell-Douglas

Corporation v Green. 411 U. S. 792 burden shifting

protocol and conciuded:

Grubb has failed to establish a prima facie case

of discrimination, . . . Grubb claims that

Southwest terminated his employment because

he filed a FMLA claim. On the other hand,

Southwest maintains that it terminated Grubb’s

employment due to his “poor performance and

behavioral problems. ... Grubb has not proven

that Southwest’s reasons for terminating him

were pretexts for discrimination. (App. 31a).

In disposing of Mr. Grubb’s ADA claim the District

Court required Grubb to utilize the McDonnell-

Douglas Corporation v. Green, id. burden shifting

protocol and concluded:

From the undisputed facts in the record, the

court concludes that Grubb could not perform

the essential functions of his job, and that

Southwest reasonably accommodated Grubb’s

condition.

Southwest maintains that it discharged Grubb

not because of his disability, but because of his

poor productivity and his violation of workplace

conduct rules. ... Grubb has not demonstrated

that Southwest’s articulated reasons are false,

much less that they are pretexts for disability

discrimination. (App. 29a-30a)

Grubb filed a Motion to Alter or Amend Judgment

where he attempted to dispel the notion that his

FMLA interference claim was a discrimination claim

on June 15, 2007. The motion to alter or amend was

denied without opinion on July 17, 2007. (App. 17a).

Ill, THE DECISION OF CIRCUIT COURT

OF APPEALS

In his appeal to the Fifth Circuit, Grubb indicated

the following issues for review.

1. Is the burden-shifting protocol of McDonnell-

Douglas Corporation v. Green, 411 U. S. 792

appropriately applied in an FMLA interference

claim where the claimant does not specifically

allege retaliation or discrimination?

2. May an_ employer’ tawfully rationalize

terminating an employee for poor performance

when he seeks Family Medical Leave Act leave

to treat the very same serious medical condition

which entitles him to FMLA leave?

3. Does failure to plead “undue hardship” waive an

employer’s right to defend a “failure to provide

reasonable accommodation” ADA claim?

4. Is the burden-shifting protocol of McDonnell-

Douglas Corporation v. Green, 411 U. S. 792

appropriately applied in a “failure to provide

reasonable accommodation” claim under the

American With Disabilities Act?

May an employer which is subject to FAA

regulations governing flight training which

never rejected the FAA mandated work product

of an employee legitimately rationalize “poor

performance’ as a grounds for claiming that the

employce is not a qualified individual under the

Americans With Disabilities Act?

Does an employer fairly articulate a Jegitimate

reason for discharging an employee when the

discharge violated the terms of a collective

bargaining agreement?

In affirming the District Court:

A. The circuit court shifted the burden of rebutting

Southwest’s nondiscriminatory reason for

terminating him under the progeny of Mc-

Donnell-Douglas v. Green, i. e., Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101

S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

Yet, even if Grubb can show a prima facie

case, SWA has the opportunity to articulate-

-though not necessarily prove, see Burdine,

450 U.S. at 250--a legitimate non-

discriminatory reason for its action. Grubb

must then rebut this articulation by

providing enough evidence to create a

genuine issue of material fact that

discrimination was nevertheless present. See

Richardson, 434 F.3d at 333. It is on these

ost-prima facie elements where Grubb’s

p P

claim for FMLA retaliation ultimately fails.

(App. 13a-14a)

. In disposing of the issue of whether or not an

employer lawfully rationalize terminating an

employee for poor performance when he seeks

Family Medical Leave Act leave to treat the

very same serious medical condition which

entitles him to FMLA leave, circuit court

concluded:

Moreover, at least for purposes of the FMLA-

-if not the ADA--one can be fired for poor

performance even if that performance is due

to the same root cause as the need for leave.

See McBride v. CITGO Petroleum Corp., 281

F.3d 1099, 1108 (10th Cir. 2002) (observing

that “the FMLA does not protect an

employee from performance problems caused

by the condition for which FMLA leave is

taken”). (App. 16a)

. The circuit court ignored the fact that

Southwest did not plead “Undue Hardship” as

an affirmative defense. Instead it accepted

Southwest’s rationalization for failing to provide

Grubb with a reasonable accommodation by way

of a fixed shift citing, “ SWA’s training director

testified, without any evidence to the contrary,

that the request would impose inordinate

burdens on other SWA employees and require

SWA to “fundamentally alter” its schedules.”

(App. 10a) It thus required Grubb to refute an

affirmative defense Southwest never asserted in

its answer.

D. The circuit court made no reference to the

utilization of the McDonnell-Douglas protocol by

the district court to Grubb’s ADA claim.

Instead it concluded that Southwest had proven

that Grubb was not a qualified individual who

was able to perform the duties of his job by

determining that other accommodations had not

enabled him to perform his job.

Furthermore, given that SWA’s repeated

offers and provisions of assistance, including

time off for treatment, failed to resolve the

matter for over a year and a half, the

likelihood of further reasonable

accommodations rendering Grubb able to do

his job is slim. See Rogers, 87 F.3d at 759-60

(“[Rleasonable accommodation is by _ its

terms most logically construed as that which

presently, or in the immediate future,

enables the employee to perform the

essential functions of the job... .”). Thus,

not only is Grubb not a “qualified

individual,” but SWA also provided any

accommodation it may have owed him in any

event. (App. 10a)

. The circuit court ignored the fact that the

qualifications for a flight simulator instructor

are a governed by federal regulation and that

Southwest had repeatedly and consistently

accepted Grubb’s' work product without

reporting any deficiency in its flight

training/currency program to the FAA due to

Grubb’s condition and nonetheless found Grubb

not to be a qualified individual.

F. The circuit court concluded: “...the district court

likely erred when it found that Grubb did not

have a prima facie (FMLA) case.” (App. 13a) but

nonetheless found that Southwest had

articulated a legitimate reason for discharging

Grubb when it violated the applicable collective

bargaining agreement, entitling it to summary

judgment. (App. 18a)

REASONS FOR GRANTING THE PETITION

I. GRANTING THE WRIT WILL RESOLVE

THE ISSUE OF WHETHER OR NOT THE

MCDONNELL-DOUGLASS BURDEN

SHIFTING PROTOCOLIS APPROPRIATE

IN THE ABSENCE OF ANY INDICATION

THAT CONGRESS INTENDED BURDEN-

SHIFTING

Matcrial to this petition is the following language

Mescham v Knolls Atomic Power Laboratory, 128 S. Ct.

2395, 2400.(2008) regarding the “five affirmative

defenses” to discrimination claims brought under

ADEA and the inappropriateness burden shifting

absent congressional intent.

After looking at the statutory text, most lawyers

would accept that characterization as a matter

of course, thanks to the familiar principle that

“[wlhen a proviso... carves an exception out of

the body of a statute or contract those who set

up such exception must prove it.” Javierre v.

Central Altagracia, 217 U.S. 502, 508, 30S. Ct.

598, 54 L. Ed. 859 (1910) (opinion for the Court

by Holmes, J.); see also FTC v. Morton Salt Co.,

334 U.S. 37, 44-45, 68 S. Ct. 822, 92 L. Ed.

1196, 44 F.T.C. 1499 (1948) (“|T\|he burden of

proving justification or exemption under a

special exception to the prohibitions of a

statute generally rests on one who claims its

benefits ...“); United States v. First City Nat.

Bank of Houston, 386 U.S. 361, 366, 87 S. Ct.

1088, 18 L. Ed. 2d 151 (1967) (citing Morton

Salt, supra, at 44-45, 68 S. Ct. 822, 92 L. Ed.

1196, 44 F.T.C. 1499). That longstanding

convention is part of the backdrop against

which the Congress writes laws, and we respect

it unless we have compelling reasons to think

that Congress meant to put the burden of

persuasion on the other side. See Schaffer v.

Weast, 546 U.S. 49, 57-58, 126 S. Ct. 528, 163 L.

Ed. 2d 387 (2005) (“Absent some reason to

believe that Congress intended otherwise,

therefore, we will conclude that the burden of

persuasion lies where it usually falls, upon the

party seeking relief’). Mescham vu Knolls

Aiomic Power Laboratory,128 S. Ct. 2395,

2400.(2008)

Notwithstanding the fact that the McDonnell-

Douglass burden shifting protocol is not supported by

any indication that Congress intended to shift the

burden of persuasion from those employers who claim

exceptions by way of affirmative defenses to both

FMLA and ADA discrimination cases, McDonnell-

Douglass has spawned considerable burden-shifting

progeny. The circuit court below applied one such

burden shifting protocol in disposing of Grubb’s FMLA

case:

Based on the foregoing, the district court likely

erred when it found that Grubb did not have a

prima facie case. Yet, even if Grubb can show a

prima facie case, SWA has the opportunity to

articulate--though not necessarily prove, see

Burdine, 450 U.S. at 250--a legitimate non-

discriminatory reason for its action. Grubb must

then rebut this articulation by providing enough

evidence to create a genuine issue of material

fact that discrimination was nevertheless

present. See Richardson, 434 F.3d at 333. It is

on these post-prima facie elements where

Grubb’s claim for FMLA retaliation ultimately

fails.

First, there is no doubt that SWA met its

burden of simply articulating a legitimate non-

discriminatory reason for its decision--i.e.,

performance. See Hicks, 509 U.S. at 509 (noting

that the defendant’s burden is production, not

proof, and “involvels} no_ credibility

assessment”). (App 13a-14a)

Il. GRANTING THE WRIT WILL RESOLVE A

CONFLICT AMONG THE CIRCUITS AS TO

WHETHER OR NOT BURDEN SHIFTING

IS PROPERLY APPLIED TO FMLA

INTERFERENCE/ENTITLEMENT CLAIMS

The circuit courts are split on the application of the

McDonnell-Douglass burden-shifting protocol to FMLA

interference/entitlement claims.

The Seventh Circuit’s decision in Rice v. Sunrise

Express, 209 F.3d 1008, 2000 U.S. App. LEXIS 6295,

140 Lab. Cas. (CCH) P34,036; 46 Fed. R. Serv. 3d

(Callaghan) 929, (Cert Denied) 531 U.S. 1012; 121 S.

Ct. 567; 148 L. Ed. 2d 486; 2000 U.S. LEXIS 7815; 69

U.S.L.W. 3363; 6 Wage & Hour Cas. 2d (BNA) 1120,

allowing an employer to defeat the claim of an

employee who was denied the benefits of FMLA leave

to simply articulate, not prove, that the employee

would have been terminated regardless:

If the employer wishes to claim that the benefit

would not have been available even if the

employee had not taken leave, the «employer

must submit evidence to support that assertion.

When that burden of going forward has been

met, however, the employee must ultimately

convince the trier of fact, by a preponderance of

the evidence, that, despite the alternate

characterization offered by the employer, the

benefit is one that falls within the ambit of sec.

2614(a)(1); the benefit is one that the employee

would have received ifleave had not been taken.

For instance, if the employer claims that the

employee would have been discharged or that

the employee’s position would have been

eliminated even if the employee had not taken

the leave, the employee, in order to establish

the entitlement protected by sec. 2614(a)(1),

must, in the course of establishing the right,

convince the trier of fact that the contrary

evidence submitted by the employer is

insufficient and that the employee would not

have been discharged or his position would not

have been eliminated if he had not taken FMLA

iceave. Id. at 1018.

In deciding the instant case, the Fifth Circuit

followed the lead of the Seventh Circuit.

But the Tenth Circuit has acknowledged the

conflict:

The Circuits are split on the issue of where such

a burden falls. The Eleventh Circuit, relying on

29 C.F.R. § 825.216 (a) (1), has required that

once an employee proves she was denied

reinstatement after FMLA leave, the employer

must prove she would have been laid off anyway

for some other reason. See O’Connor v. PCA

Family Health Plan, Inc., 200 F.3d 1349 (11th

Cir. 2000); Parris v. Miami Herald Publ’g Co.,

216 F.3d 1298 (11th Cir. 2000). This regulation

was promulgated by the Department of Labor

pursuant to the Secretary’s delegated power to

issue regulations necessary to carry out the

FMLA. Ragsdale v. Wolverine World Wide, Inc.,

152 L. Ed. 2d 167, 122 S. Ct. 1155, 1159-60

(2002) (citing 29 U.S.C. §$ 2654). The First

Circuit has held unequivocally that such

regulations are entitled to deference:

We do not write on a clean slate. The Act

delegates to the Secretary of Labor broad

authority to “prescribe such regulations

as are necessary to carry out” the Act. 29

U.S.C. $ 2654. The regulations ... were

promulgated pursuant to the

requirements of notice-and-comment

rulemaking under the Administrative

Procedure Act, 5 U.S.C. $ 553... . The

regulations were an exercise of the

Secretary’s delegated authority and were

adopted with the participation of the

public, and thus deference to the

Secretary's interpretation is properly

invoked. Duckworth v. Pratt & Whitney,

Inc., 152 F.3d 1, 5 (Ist Cir. 1998).

Subsection (a) of 29 C.F.R. $ 825.216 provides:

An employee has no greater right to

reinstatement or to other benefits and

conditions of employment than if the

employee had been’ continuously

employed during the FMLA leave period.

An employer must be able to show that an

employee would not otherwise have been

employed at the time reinstatement is

requested in order to deny restoration to

employment. (emphasis added).

This section further provides, by way of

example, that

if an employee is laid off during the

course of taking FMLA leave and

employment is terminated, the

employer's responsibility to continue

FMLA leave, maintain group health plan

benefits and restore the employee cease

at the time the employee is laid off....

An employer would have the burden of

proving that an employee would have

been laid off during the FMLA leave

period and, therefore, would not be

entitled to restoration. (emphasis added).

29 C.FR. $ 825.216(a)(1).

We therefore conclude that the regulation is not

arbitrary, capricious, or manifestly contrary to

the FMLA. We also conclude that the regulation

validly shifts to the employer the burden of

proving that an employee, laid off during FMLA

leave, would have been dismissed regardless of

the employee’s request for, or taking of, FMLA

leave. We therefore see no need to apply the

burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S.

792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). We

cannot agree with the Seventh Circuit’s reading

of the statute as stated in Rice, 209 F.3d 1008.

We are persuaded that the Eleventh Circuit in

Parris has the better argument because its

reading of the regulation is more natural, and

its holding is both more reasonable and more

harmonious with precedent. Smith v. Diffee

Ford-Lincoln-Mercury, Inc. 298 F.3d 955, 2002

U.S. App. LEXIS 15280, 146 Lab. Cas. (CCH)

P34,556; 83 Empl. Prac. Dec. (CCH) P41,159

(Cert denied....... )

See also,

See also, Colburn v. Parker Hannifin/ Nichols

Portland Div., 429 F.3d 325, 331 (1st Cir. 2005)

The Fourth Circuit candidly acknowledges the

existence of the conflict and has declined to resolve it.

Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d

541, 549 (4th Cir. N.C. 2006)

Ill, GRANTING THE WRIT WILL RESOLVE

A CONFLICT AMONG THE CIRCUITS

AS TO WHETHER OR NOT THE

MCDONNELL-DOUGLASS BURDEN-

SHIFTING PROTOCOL IS PROPERLY

APPLIED TO ADA REASONABLE

ACCOMMODATION CASES

Grubb did not plead an ADA discrimination case.

Considering what appeared to be “off the shelf”

arguments in support of an employer’s motion for

summary judgment in an ADA discrimination case, the

district court nonetheless applied the McDonnell-

Douglass protocol to Grubb’s ADA claim for

Southwest’s failure to provide him with a reasonable

accommodation for his sleep apnea; a fixed shift

instead of an ever-changing array of shifts which

began and ended at all hours of the day and night.

Due to the absence of direct evidence of

discrimination in this case, Grubb must use the

three-step, “indirect” or “pretext” method of

proof detailed in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973); see also Daigle v.

Liberty Life Insurance Company, 70 F.3d 394,

396 (5th Cir. 1995); Rizzo, 84 F.3d at 762. In the

first step, Grubb must establish a prima facie

case of discrimination. McDonnell Douglas, 411

U.S. at 802. If he produces proof of the elements

of a prima facie case, a presumption of

discrimination arises. See Bodenheimer v. PPG

Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993).

At the second step, Southwest can rebut this

presumption of discrimination by offering a

legitimate, nondiscriminatory reason for its

actions. See Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (1981). If Southwest

satisfies this burden of production, the prima

facie case dissolves, and the case proceeds to the

third step of the analysis. See St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 507, 113 S. Ct.

2742, 125 L. Ed. 2d 407 (1993). At this third

stage, the burden is on Grubb to prove that the

reasons offered by Southwest are pretexts for

prohibited discrimination. See id. at 507-08.

(App. 28a) (Footnote omitted)

Burden-shifting in reasonable accommodation cases

has been widely repudiated. See Pebbles v. Potter, 354

F.3d 761, 765 (8th Cir.2004); Lenker v. Methodist

Hosp., 210 F.3d 792, 799 (7th Cir .2002) Higgins v.

New Balance Athletic Shoes, Inc., 194 F.3d 252, 264

(1st Cir.1999) Aka v. Washington Hosp. Center, 156

F.3d 1284, 1288 (D.C.Cir.1998) (en banc) (adopting the

analysis of Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.

Cir.1993)); William v. Channel Master Satellite Sys.,

Inc., 101 F.3d 346, 348 n. 1 (4th Cir.1996) Willis v.

Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997).

Fifth Circuit law required Southwest to plead

“undue hardship” as an affirmative defense, Johnson

v. Gambrinus Company/Spoetzl Brewery, 116 F 3d

1052, 1059 (5 Cir. 1997) citing, Riel v. Electronic Data

Sys. Corp., 99 F.3d 678 (5th Cir.1996). Although

Southwest never plead “Undue hardship” as an

affirmative defense the circuit court concluded that

Southwest had articulated that the accommodation

sought by Grubb was not reasonable, “SWA’s training

director testified, without any evidence to the

contrary’, that the request would impose inordinate

burdens on other SWA employees and require SWA to

“fundamentally alter” its schedules” (App. 10a)

without even considering the absence of evidence of

the statutory factors comprising such undue hardship.

It would thus appear that, without saying so, the

circuit court applied burden-shifting to Grubb’s ADA

claim. It allowed Southwest to simply articulate’ an

“undue hardship” defense in its summary judgment

motion to Grubb’s reasonable accommodation claim

(without having pled it) and, because Grubb did not

refute that unpled affirmative defense, decided that

Southwest was entitled to summary judgment on

Grubb’s ADA case.

The issue before the circuit court was whether or

not Grubb could perform the essential duties of his

position if he had been given a fixed shift; not whether

other potential solutions had proven effective. The

Fifth Circuit failed to credit the fact that Grubb’s

qualifications to serve as a simulator instructor are

established by FAA regulations and the fact that

Southwest never rejected his work product, even to

the point of passing him on an “in line observation”

when he nodded off. It accepted Southwest’s assertions

that Grubb was not “qualified.” The Fifth Circuit

made no attempt to determine whether Grubb could

‘ Evidence that senior Southwest employees, including David

Colunya (who personally fired Grubb) offered/suggested the fixed

shift as a potential solution to Grubb’s sleep apnea contradicted

this conclusory allegation.

“ Southwest made no attempt to prove any of the statutory (42

USC 1211 (10)(B)) factors constituting “undue hardship.”

stay continuously awake if he were given a fixed shift

and thus “with or without reasonable accommodation,

can perform the essential functions of the employment

position.” It decided that since other “accommodations”

(which Grubb did not request) were ineffective, “SWA

also provided any accommodation it may have owed

him in any event,” (App. 10a) Grubb was not a

“qualified individual” under ADA.

IV.

GRANTING THE WRIT WILL RESOLVE

THE ISSUE OF WHETHER OR NOT AN

EMPLOYER CAN ESCAPE LIABILITY

FOR DENYING FMLA LEAVE BY

TERMINATING AN EMPLOYEE WHO

SEEKS FMLA LEAVE TO TREAT A

SERIOUS HEALTH CONDITION THAT

MAKES THE EMPLOYEE UNABLE TO

PERFORM THE FUNCTIONS OF THE

POSITION OF SUCH EMPLOYEE BY

MERELY ARTICULATING “POOR

PERFORMANCE” WHICH RESULTS

FROM THAT CONDITION.

The circuit court below dismissed the possibility

that Southwest may have violated Grubb’s FMLA

rights when it terminated Grubb, determining:

Moreover, at least for purposes of the FMLA--if

not the ADA--cne can be fired for poor

performance even if that performance is due to

the same root cause as the need for leave. See

McBride v. CITGO Petroleum Corp., 281 F.3d

1099, 1108 (10th Cir. 2002) (observing that “the

FMLA does not protect an employee from

performance problems caused by the condition

for which FMLA leave is taken”). Therefore,

given that SWA’s termination of Grubb was

otherwise appropriate, any right to leave would

have been extinguished by SWA’s exercise of

that prerogative. (App. 16a)

However, the circuit court, failed to note that the

Tenth Circuit, in elaborating on McBride, found 1) that

burden to prove, not merely articulate that the

employee would have been dismissed even if she had

not exercised her FMLA rights is properly upon the

employer and 2) that evidence that had the employee

remained healthy, the employer would have permitted

her to continue indefinitely at her job is sufficient to

place the burden upon the employer. See Smith v.

Diffee Ford-Lincoln-Mercury, Inc, supra, at 962.

Here, it is undisputed that Southwest accepted all

of the flight training paperwork that Grubb performed

by certifying to the FAA that the instructional sessions

were properly completed, despite knowledge that

Grubb was suffering from momentary spells of nodding

off while conducting these sessions. Senior Southwest

personnel believed that Grubb could continue to

perform his job if given a fixed shift. Grubb had

applied for FMLA leave and was assigned a case

number by Southwest. (App. 44a-47a) and Southwest

thereafter violated the collective bargaining agreement

by terminating Grubb within the time allotted

therefore. Grubb therefore presented encugh evidence

from which a jury could find that he would have

continued to be employed at Southwest had he not

suffered from sleep apnea. The burden therefore was

upon Southwest to prove, not merely articulate, that it

would have terminated him in any event.

In a similar circumstances an employee was

determined to have a right to FMLA leave for the very

condition (severe depression causing the employee to

sleep on the job for 10 consecutive days) which was

utilized by his employer to rationalize a termination.

“Although the ADA applies only to those who can do

the job, the FMLA affords those who can’t work as a

result of a “serious heaith condition” up to 12 weeks of

leave in a year. 29 U.S.C. § 2612(a)(1)(D).” Byrre v.

Avon Products, Inc., 328 F 3d 379, 381 (7 Cir. 2003),

Cert denied Avon Prods. v. Byrne 540 U.S. 881; 1245.

Ct. 327; 157 L. Ed. 2d 147; 2003 U.S. LEXIS 6290; 72

U.S.L.W. 3241; 14 Am. Disabilities Cas. (BNA) 1568;

8 Wage & Hour Cas. 2d (BNA) 1920.

The circuit court has thus emasculated the plain

language of the Act by manufacturing a “Catch 22”

under which FMLA leave would be totally

discretionary with the employer who could arbitrarily

decide to terminate the employee upon notice that the

employee was suffering from a serious health condition

which interferes with the performance of job duties.

CONCLUSION

For 35+ years, qualified employees establishing

prima facie cases of discrimination have been required

to prove that reasons which employers have merely

articulated are pretextural in accordance with the

McDonnell-Douglass Corporation v. Green, 411 U.S.

792 (1973) burden - shifting protocol. When deciding

Mescham vu Knolls Atomic Power Laboratory,128 S. Ct.

2395, this court has rejected the practice of shifting the

burden of persuasion from employers claiming an

exception to the practices prohibited by the ADEA to

employees. Granting the writ would decide the logical

but collateral issue of the propriety of maintaining the

court-made McDonnell Douglass protocol for FMLA

and ADA cases.

As noted herein, several circuit courts have already

repudiated the practice of burden shifting for FMLA

interference claims ADA reasonable accommodation

claims. The decision of the circuit below is contrary to

the greater number of circuit court decisions on this

point. Granting the petition will resolve the remaining

questions regarding a court-created burden shifting

protocol in general and the conflicts about the

applicability of burden-shifting to FMLA interference

claims and ADA reasonable accommodation claims.

Employers are required to provide FMLA l!eave to

employees who seek leave to treat a serious health

condition that makes the employee unable to perform

the functions of the position. (See, 29 U.S. C. § 2612

(a)(10(D)) The circuit court below concluded that an

employer can, nonetheless escape liability under the

FMLA by discharging an employee bu merely

articulating the employee is guilty of “poor

performance” which is the result of the serious health

condition for which leave has been sought. Granting

the writ will settle the issue of whether or not an

employer can escape the mandate of FMLA by merely

articulating that the reason for terminating an

employee who seeks/takes FMLA leave ~vas poor

performance caused by the same serious health

condition for which leave is sought/taken.

Respectfully Submitted,

Konrad Kuczak

Attorney at Law

130 West Second Street, Suite 1010

Dayton, OH 45402

Phone: 937 228 8363

Fax: 937 228 0520

Counsel for Petitioner

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 07-11027

[Filed October 10, 2008]

HERBERT GRUBB ~

Plaintiff - Appellant

SOUTHWEST AIRLINES

)

Defendant - Appellee )

)

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV-1934

Before DAVIS, CLEMENT, and ELROD, Circuit

Judges.

PER CURIAM:

Pursuant to 5rTu Cir. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH Cik. R. 47.5.4.

This case concerns claims brought by Herbert

Grubb against his former employer, Southwest

Airlines (“SWA”), under the Americans’ with

Disabilities Act of 1990, 42 U.S.C. § 12101 (“ADA”),

and the Family and Medical Leave Act of 1993, 29

U.S.C. § 2601 (“FMLA”). Grubb claims that SWA

violated the ADA by firing him rather than

accommodating his sleep apnea—which caused him to

“nod off” at work—and the FMLA by firing him rather

than granting his request for leave. The district court

granted summary judgment to SWA on both claims.

l‘or the reasons provided below, we affirm.

I. FACTS AND PROCEEDINGS

SWA is a passenger airline company headquartered

in Dallas, Texas. In March of 1999, SWA hired Grubb

as a flight instructor. In this position, Grubb was

required to train pilots through flight simulator and

class instruction (with related office hours), and, in so

doing, maintain a certain level of expertise by his own

training and technique development in instructor

meetings and activities. SWA employed Grubb in this

post until his firing on June 21, 2004. According to his

termination letter, SWA fired Grubb for repeated

“sleeping on the job.” Grubb does not deny siceping,

but asserts that it was caused by sleep apnea—a

condition from which he claims to have suffered since

a heart surgery in 2001. Instead of firing him, Grubb

claims that SWA should have accommodated him, by

FMLA leave or otherwise.

Grubb’s work problems first surfaced in December

of 2002 when he failed to report to work for several

days. Shortly thereafter, Grubb was counseled by a

supervisor, David Colunga, about his absences and

also about sleeping during instructor meetings, which

Colunga had observed. Grubb reported that “he was on

medication and seeking treatment” for the sleep

problem. Colunga offered help, but Grubb declined.

The sleep problem recurred in March of 2003 in an

instructor meeting and in training pilots on a

simulator. Grubb was counseled again in a meeting

with Colunga, Bob ‘Torti (a training director «nd

supervisor), and Jim Evans (a union representative),

and was offered help again—this time, in the form of

a referral to SWA’s counseling service. SWA requested

a diagnosis and prognosis from a doctor, but it appears

that Grubb never provided anything more than a

conclusory note that “he was being seen for sleep

apnea.”

As described in the district court’s opinion—a

description Grubb does not dispute—a pattern of

sleeping, both during Grubb’s instruction of others and

his own training, followed by supervisor meetings and

warnings, continued throughout 2003. Although

Colunga suggested, near the end of 2003, that there

may have been some improvement in the sleeping at

work, he suspended Grubb in January of 2004 due to

complaints about Grubb’s “performance in the [flight]

simulator” as well as his appearance and hygiene,

which Colunga saw as cause for concern. Despite the

warnings, Grubb fell asleep again on February 11,

2004 during a simulated runway approach fer his

trainees. Grubb was then removed from the training

schedule for the rest of the month but encouraged by

Colunga to pursue treatment in which Grubb professed

interest. The problem recurred on March 4, 2004,

when Grubb fell asleep at an instructor meeting. In

response to SWA’s call for a meeting to discuss the

problem again, Grubb asked SWA for a schedule

adjustment to undergo a three and a half week

“medical treatment program for [his] sleeping issues.”

Colunga granted the request. Unfortunately, Grubb

fell asleep again at a new hire training program in

May of 2004. Colunga, Torti, Evans, and Grubb met

again on June 9, 2004 to discuss the ongoing issue.

SWA terminated Grubb’s employment on June 21,

2004. Colunga stated in an affidavit: “I terminated Mr.

Grubb based on his behavioral problem for the past

year and a half. Mr. Grubb had failed to improve his

problems after the numerous counseling sessions,

offers of schedule adjustments, and offers to take time

off.” Affidavits from Torti and a third supervisor,

Donald Shull, echoed Colunga’s concerns and the

various grounds for termination. Regarding Grubb’s

termination, Shull noted that there was a “well-

documented history of Mr. Grubb’s performance

problems ... [and] [gliven the fact that [SWA] had

given [him] countless opportunities to improve his

problem, I believed [SWA] had no other option... .”

Grubb testified that he understood well in advance

that “if the problem continued, ... it may result in

termination.” Although Grubb’s’ termination

technically violated the collective bargaining

agreement by taking place nine, rather than seven,

work days after a counseling meeting, it was later

affirmed by a tribunal established under that

agrecment.

Grubb’s chief factual contention on appeal appears

to be that he “worked quite effectively despite having

momentary lapses of nodding off.” In support, he cites

positive reviews and his apparent compliance with

several Federal Aviation Administration (“FAA”)

regulations. He also argues that he underwent a series

of efforts to treat his “sleep disorder,” although his

only record citations regarding such efforts are a

February 4, 2004 doctor’s note authorizing him to work

but indicating “managlement] lof] his_ sleep

disorder,”and another doctor’s note on April 26, 2004

indicating that Grubb “is a patient in our clinic...

[and] has been advised to work the [afternoon] shift

. only.” Although Grubb claims he requested the

afternoon shift, it is unclear what occurred in

response. In any event, Torti (the training director)

testified that permitting “Grubb to work a set shift

schedule would require all the other Flight Instructors

to work harder and longer hours than [] Grubb...

{and| would also require |[SWA| to fundamentally alter

its established schedule|,| . .. the office day policy[,]

and required hours.”

Regarding Grubb’s request for FMLA leave, the

possibility of such leave was first raised by Evans (the

union representative) in the last group meeting on

June 9, 2004. Colunga asserted in his affidavit,

however, that “[dJespite [] Grubb’s indication that he

would inquire as to FMLA, I decided to terminate

{him].” Torti similarly affirmed the absence of any

FMLA consideration in the termination decision. After

the meeting—but before his firing—Grubb met with

SWA’s FMLA coordinator, who told him that he would

need to submit a medical certification of eligibility to

SWA’s FMLA administrator to qualify for such Icave.

Although the process was initiated on June 17, 2004,

Grubb never submitted a certification, and the process

was terminated on July 7, 2004. Grubb offered no

evidence that Colunga or Torti were aware of his

application for MLA leave at the time of his firing.

62.

On September 29, 2005, Grubb filed this action,

alleging violations of the ADA, FMLA, Employee

Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 (“ERISA”), and Texas wrongful termination

law. SWA moved for summary judgment on October

27, 2006. The district court granted SWA’s motion in

full on June 11, 2007. Grubb only appeals the ADA and

FMLA claims.

As to the ADA claim, the district court assumed, for

the sake of argument, that Grubb had a “disability”

under the statute, but still rejected his claim. Although

it is unclear whether the district court considered

Grubb’s claim to be one for disparate treatment (i.e.,

he was fired because of a disability) or failure to

accommodate (i.e, he was fired because of

performance, but that performance was caused by a

disability that could have been accommodated), its

findings preclude both options. On_ disparate

treatment, the court found that “Grubb has adduced

no facts suggesting that a discriminatory reason likely

motivated the decision to terminate his employment or

that [SWA]’s explanation [of poor productivity and

work rule violations] was not credible, i.e., was

probably pretextual.” See St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 515-18 (1993); Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981). With

regard to accommodation, the court found that “Grubb

could not perform the essential functions of his job,

and [SWA] reasonably accommodated Grubb’s

condition,” as required under the ADA. See Chandler

v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993).

As to Grubb’s FMLA claim, the district court

addressed it as a retaliation, or discrimination, claim

rather than a claim for failure to grant leave. As such,

it used the burden-shifting test for indirect evidence

discrimination cases that also involve “mixed motives,”

per Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). See

Richardson v. Monitronics Int’l, Inc., 434 F.3d 327,

332-33 (5th Cir. 2005) (applying Desert Palace to

FMLA retaliation in indirect evidence, mixed-motive

case). The court found that Grubb failed to offer any

evidence of a causal link between his pursuit of FMLA

leave and his firing, and that even if he had, he also

failed to offer any evidence to rebut the legitimate

reasons set forth by SWA.

On appeal, Grubb claims that the district court

erred by finding that SWA both met its affirmative

duties under the ADA and FMLA, and did not

otherwise discriminate against him because of his

pursuit of FMLA leave. SWA counters that the district

court did not err, and further adds that even if it did,

summary judgment would still be proper because

Grubb did not suffer from a “disability” or “serious

health condition” as required by the ADA and FMLA,

respectively.

Ii. STANDARD OF REVIEW

This court reviews grants of summary judgment de

novo. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d

493, 498 (Sth Cir. 2001). Summary judgment is proper

“if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of Law.”

FED. R. Civ. P. 56(c). This court “may affirm summary

judgment on any legal ground raised below, even if it

was not the basis for the district court’s decision.”

Performance Autoplex II Ltd. v. Mid-Continent Cas.

Co., 322 F.3d 847, 853 (5th Cir. 2003).

Ill. DISCUSSION

A. The ADA Claim

The district court granted summary judgment to

SWA on the ADA claim because it found that SWA

neither failed in its accommodation duty, because

Grubb could not perform the essential functions of his

job with or without reasonable accommodation, nor

discriminated against Grubb because of his disability.

The district court assumed arguendo that Grubb had

a covered “disability,” which the ADA defines in part

as “a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual.” 42 U.S.C. § 12102(2). Because we find that

the district court did not err in its dispositive findings,

we also assume, without deciding, that Grubb’s sleep

apnea qualified as a disability.

Under the ADA, a covered employer—and it is

undisputed that SWA is’ one—must provide

“reasonable accommodations to the known physical or

mental limitations ofan otherwise qualified individual

with a disability who is an applicant or employee,

unless [the employer] can demonstrate that the

accommodation would impose an undue hardship... .”

42U.8.C. § 12112(b)(5)(A). A “qualified individual with

a disability” is one with a “disability,” who, “with or

without reasonable accommodation, can [still] perform

the essential functions of the employment position that

[he or she] holds or desires.” Jd. at § 12111(8). Grubb’s

challenge fails because he was unable to perform his

job in a manner that SWA could reasonably

accommodate. See Chandler, 2 F.3d at 1393-94.

Grubb’s alleged disability involved a basic element

of the performance of his job as a flight instructor,

namely being conscious and alert. Lack of physical

presence is a commonly-accepted disqualification for

ADA protection. See, e.g., Rogers v. Int'l Marine

Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996);

Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th

Cir. 1994); Amato v. St. Luke’s Episcopal Hosp., 987 F.

Supp. 523, 530 (S.D. Tex. 1997). More to the point,

courts have repeatedly approved of ADA-challenged

discharges for falling asleep at work, particularly in

safety-sensitive positions. See, e.g., Leonberger uv.

Martin Marietta Materials, Inc., 231 F.3d 396, 399 (7th

Cir. 2000); Cannon v. Monsanto Co., No. 05-5558,

2008WL236922, at *4 (E.D. La. Jan. 28, 2008)

(unpublished); Brown v. Triboro Coach Corp., 153 F.

Supp. 2d 172, 185 (E.D. N.Y. 2001). It is difficult to

fathom how Grubb could instruct future pilots with

confidence, or receive training on how to do so, if he

was repeatedly “nodding off.” Furthermore, in this

analysis, “consideration shal! be given to the

employer’s judgment as to what functions of a job are

essential.” 42 U.S.C. §12111(8). After eighteen months

of counseling and warnings, there could be no

reasonable doubt, either to the casual observer or to

Grubb, where SWA stood on the matter.

Of course, the inquiry does not stop with Grubb; the

court must also look at whether SWA met its

accommodation obligations. “It is the plaintiffs burden

to request reasonable accommodations.” Jenkins v.

Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007).

The only cited accommodation that Grubb requested

10a

that was not granted was the set shift assignment

request reflected in the April 26, 2004 doctor’s note.

Leaving aside that the note did not specify any

condition, but only that Grubb “is a patient in our

clinic,” SWA’s training director testified, without any

evidence to the contrary, that the request would

impose inordinate burdens on other SWA employees

and require SWA to “fundamentally alter” its

schedules. See Foreman v. Babcok & Wilcox Co., 117

F.3d 800, 809-10 (5th Cir. 1997) (holding that

accommodation does not require imposing disparate

burdens on others). Furthermore, given that SWA’s

repeated offers and provisions of assistance, including

time off for treatment, failed to resolve the matter for

over a year and a half, the lkelihood of further

reasonable accommodations rendering Grubb able to

do his job is slim. See Rogers, 87 F.3d at 759-60

(“{[Rleasonable accommodation is by its terms most

logically construed as that which presently, or in the

immediate future, enables the employee to perform the

essential functions of the job... .”). Thus, not only is

Grubb not a “qualified individual,” but SWA also

provided any accommodation it may have owed him in

any event.

Turning to the discrimination aspect of the district

court’s ADA holding, Grubb has conceded any appeal

on this ground by repeacedly asserting that his claim

is limited to accommodation. Thus, it is unnecessary to

proceed further with this aspect of the district court’s

opinion.

B. The FMLA Claim

In his complaint, Grubb « 'aims that his “wrongful

termination violated the {F \iLA] in that [he] was an

lla

eligible employee for the leave and benefits under the

act and he was seeking to have time to treat a serious

medical condition.” Treating this claim largely as one

for FMLA retaliation or discrimination based on one’s

status as an FMLA applicant, the district court

granted summary judgment to SWA because it found

that Grubb did not offer enough evidence of a causal

link between any leave and his termination, and he

could not rebut the legitimate reasons set forth by

SWA for its decision. Grubb focuses his appeal on the

argument that the district court used the wrong

framework by analyzing his claim as a retaliation

rather than entitlement claim. Nevertheless, he

appeals the denial of his claim on both retaliation and

entitlement grounds. As described below, we find that

(1) although the district court may have erred in

finding that Grubb did not make out a prima facie case

on retaliation, it did not err in rejecting his claim

because he could not rebut the legitimate reasons for

his termination, and (2) any claim to entitlement is

also subject to dismissal on summary judgment,

whether or not the district court so ruled.

In assessing Grubb’s FMLA claim as a claim for

leave-based retaliation or discrimination, the district

court used a “mixed motive” analysis. That analysis,

which permits a finding of discrimination despite the

co-existence of iegitimate motives, was developed by

the Supreme Court in evaluating indirect evidence

cases under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2. Desert Palace, 539 U.S. at 98-102. It

as since been extended by this court to FMLA

retaliatio cases. See Richardson, 434 F.3d at 332-33.

It is not clear if Grubb argues for a “mixed motive”

analysis or the more restrictive sole motive test of

McDonnell-Douglas Corp. v. Green, 411 U.S. 792

12a

(1973). See Richardson, 434 F.3d at 332-33 (using

Desert Palace for “mixed motive” and McDonnell-

Douglas for “sole” reason cases). Nevertheless, his

claim fails on either theory because although he may

be able to show a prima facie case, which is required

under both tests, he cannot show that leave was a

reason for his firing—which is required even under the

less restrictive “mixed motive” test. See id. at 333.

Under the FMLA, a covered employer—and it is

undisputed that SWA is one—may not “interfere with,

restrain, or deny the exercise of or the attempt to

exercise, any [FMLA leave] right,” or otherwise

“discriminate against any individual for opposing any

[FMLA-prohibited] practice.” 29 U.S.C. § 2615(a). To

survive summary judgment in the pursuit of violations

of the foregoing in an indirect evidence case, a plaintiff

must first establish a prima facie case. As such, he

must show: “1) he was protected under the FMLA; 2)

he suffered an adverse employment action; and 3) he

was treated less favorably than an employee who had

not requested leave ... or the adverse decision was

made because he sought protection under the FMLA.”

Mauder v. Metro. Transit Auth. of Harris County, Tex.,

446 F.3d 574, 583 (Sin Cir. 2006).

As to the first element of the prima facie case, there

may be enough of an issue of fact as to whether Grubb

had a “serious health condition” for purposes of FMLA

“protection” in seeking leave to survive summary

judgment. See Hurlbert v. St. Mary’s Health Care Sys.,

439 F.3d 1286, 1298 (11th Cir. 2006). The regulations

provide that a “serious health condition” exists where

one has an illness and is under the care of a health

care provider after a “period of incapacity” of “more

than three days.” 29 C.F.R. § 825.114. Although it does

13a

not appear that Grubb’s condition was particularly

acute when he sought leave or that his FMLA

application reached the point of showing how he would

use the leave, his apparent three and a half week

treatment in March of 2004 (which he claims was a

“hospitaliziation]”) followed by continued physician

care may raise an issue of fact. See Hlurlbert, 439 F.3d

at 1298.

Obviously, Grubb suffered an adverse employment

action by virtue of his termination. Thus, the only

remaining prima facie issue is whether his firing “was

made because he sought protection under the FMLA.”

Mauder, 446 F.3d at 583. As a prima facte element,

this third prong is not an ultimate showing of liability,

but merely determines whether there is enough

evidence to require an employer to respond. See

Burdine, 450 U.S. at 253-54 (observing that the

burden is “not onerous” and only creates a

“presumption”). All that is required is “a causal

connection between the protected activity and the

discharge.” Chaffin v. John H. Carter Co., 179 F.3d

316, 319 (5th Cir. 1999). The timing of Grubb’s June 21

termination shortly after the raising of his possible

pursuit of leave in the June 9 meeting with

supervisors is likely sufficient. See Mauder, 446 F.3d

at 583 (emphasizing “temporal proximity” in the prima

facie context).

Based on the foregoing, the district court likely

erred when it found that Grubb did not have a prima

facie case. Yet, even if Grubb can show a prima facie

case, SWA has the opportunity to articulate—though

not necessarily prove, see Burdine, 450 U.S. at 250—a

legitimate non-discriminatory reason for its action.

Grubb must then rebut this articulation by providing

l4a

enough evidence to create a genuine issue of material

fact that discrimination was nevertheless present. See

Richardson, 434 F.3d at 333. It is on these post-prima

facie elements where Grubb’s claim for FMLA

retaliation ultimately fails.

First, there is no doubt that SWA met its burden of

simply articulating a legitimate non-discriminatory

reason for its decision-—i.e., performance. See Hicks,

509 U.S. at 509 (noting that the defendant’s burden is

production, not proof, and “involve[s] no credibility

assessment”). Second, the only arguments that Grubb

sets forth to assert that SWA acted because of FMLA

leave—i.e., a two-day firing delay under the labor

agreement and the intervening timing of his

application—are insufficient. Failure to follow internal

procedures is generally not enough to create a genuine

issue of fact as to discriminatory motives. See Moore v.

Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993).

Further, speculation from the timing of Grubb’s FMLA

application and his firing is also not enough,

particularly in light of an eighteen month record of

warnings and performance problems that were

understood by Grubb as possibly leading to his

termination and the uncontested testimony that

SWA’s decision to terminate arose independently of

FMLA leave. See Jarjoura v. Ericsson, Inc., 266 F.

Supp. 2d 519, 531 (S.D. Tex. 2003), affd, 82 F. App’x

998 (5th Cir. 2003) (unpublished) (“|TJiming alone is

not enough to support retaliation ... .”); see also Price

v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir.

1997) (“[One] cannot merely rely on his subjective

belief that discrimination occurred ... .”). In short,

even if Grubb can show that his efforts to seek FMLA

leave are protected, he lacks evidence to demonstrate

that such efforts led to SWA’s decision to fire him.

ld5a

The final argument on appeal is one that the

district court did not address, namely whether Grubb’s

termination violated the FMLA by effectively denying

him leave to which he would have been entitled. Given

its finding in support of the firing in general, the

district court did not go on to deal directly with any

claim to entitlement. Nevertheless, “the FMLA

contains two distinct provisions.” Mauder, 446 F.3d at

580. One—which was explored by the district court

and discussed above—is a “proscriptive” provision that

“protects employees from retaliation or discrimination

for exercising their rights under the FMLA.” Jd. The

other is a “prescriptive” provision that “creates a series

of entitlements or substantive rights.” Jd. Among these

FMLA entitlements is the leave that Grubb sought for

his sleep apnea before being terminated. See 29 U.S.C.

§ 2612(aX1)(D) (providing up to twelve weeks of

annual leave for a “serious health condition”).

Although there may be an issue of fact as to whether

Grubb suffered from a “serious health condition” for

the reasons noted above, SWA’s otherwise proper

termination precludes entitlement to leave.

As a gencral proposition, “laln employee who

requests or takes protected leave under the FMLA is

not entitled to any greater rights or benefits than he

would be entitled to had he not requested or taken

leave.” Serio v. Jojo’s Bakery Rest., 102 F. Supp. 2d

1044, 1051 (S.D. Ind. 2000). This principle is not only

reflected in FMLA regulations on reinstatement, see 29

C.F.R. § 825.216(a), but is also a matter of common

sense. See Throneberry v. McGehee Desha County

Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (describing as

“uncluttered logic” its holding that “an employer who

interferes with an employee’s FMLA rights will not be

liable if the employer can prove it would have made

16a

the same decision had the employee not exercised the

employee’s FMLA rights”). Moreover, at least for

purposes of the FMLA— if not the ADA—one can be

fired for poor performance even if that performance is

due to the same root cause as the need for leave. See

McBride v. CITGO Petroleum Corp., 281 F.3d 1099,

1108 (10th Cir. 2002) (observing that “the FMLA does

not protect an employee from performance problems

caused by the condition for which FMLA leave is

taken”). Therefore, given that SWA’s termination of

Grubb was otherwise appropriate, any right to leave

would have been extinguished by SWA’s exercise of

that prerogative.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the

district court’s grant of summary judgment to SWA on

both the ADA and FMLA claims filed ty Grubb.

17a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. 3:05-CV-1934-G

[Filed July 17, 2007]

HERBERT GRUBB

Plaintiff,

VS.

SOUTHWEST AIRLINES,

Defendant.

Nee ee eee ee ee

ORDER

Plaintiffs motion (docket entry 99) to alter or

amend judgment is DENIED.

SO ORDERED.

July 17, 2007.

/s/__

A. JOB FISH

CHIEF JUDGE

lSa

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. 3:05-CV-1934-G

[Filed June 11, 2007]

HERBERT GRUBB

Plaintiff,

VS.

SOUTHWEST AIRLINES,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant

Southwest Airlines (“Southwest”) for summary

judgment. For the reasons set forth below, the motion

is granted.

I. BACKGROUND

In March 1999, Southwest hired plaintiff Herbert

Grubb (“Grubb”) as a flight crew training instructor

(“flight instructor”). Oral Deposicion of Herbert Grubb

19a

(“Grubb Deposition”) at 69, located in Appendix in

Support of Defendant’s Motion for Summary Judgment

(“Appendix to Motion”) at 238; see also Plaintiffs

Original Petition (“Complaint”) at 1. A flight instructor

trains pilots in flight simulators and in classrooms in

accordance with Federal Aviation Administration and

Southwest guidelines. Affidavit of Robert Torti (“Torti

Affidavit”) | 5, attached to Appendix to Motion at 1.

Additionally, a Southwest flight instructor must

remain current on equipment and _ instruction

techniques by attending monthly instructor meetings,

skill practice sessions and critique review sessions, as

well as through self study. Jd. A flight instructor

divides his time equally between simulator training

and office hours/classroom training. Id. 6.

From December 2002 through June 2004,

Southwest staff repeatedly counseled Grubb about

behavioral problems, including “nodding off at work

while training students in the simulator, during

instructor meetings and during office hours; tardiness;

and missing office hours.” Southwest’s Briefin Support

of Motion for Summary Judgment (“Motion”) at 3.

Because of these problems, Southwest encouraged

Grubb to seek medical care and offered to him time to

do so. Id.

On December 3, 4, 16, and 17, 2002, Grubb did not

appear at work. Affidavit of David Colunga (“Colunga

Affidavit”) 191 4, 5, attached to Appendix to Motion at

15; see also id., Exhibit A. On December 18, 2002,

David Colunga, Southwest’s manager of flight

instruction, met with Grubb to discuss Grubb’s

unexcused absences from work. Colunga Affidavit

UW 4, 5, attached to Appendix to Motion at 15; see also

id., Exhibit B. Colunga told Grubb that he had noticed

20a

rrubb fall asleep during instructor meetings. Jd. In

response, Grubb explained that he was _ taking

medication and was secking treatment for the

problem. /d.

In March 2003, Southwest requested a diagnosis

and prognosis from Grubb’s physician. Torti Affidavit

q 10, attached to Appendix to Motion at 2. During that

meeting on March 10, 2003, Grubb admitted that he

had a problem and was under medical care. I/d.; see

also Colunga Affidavit, Exhibit C, attached to

Appendix to Motion at 26. Colunga again offered his

assistance and recommended that Grubb contact

Southwest’s counseling service. Jd. Ina memorandum

memorializing that meeting, Colunga wrote that

“while I was impressed with his attitude concerning

acknowledgment of his problem, I must remember that

he has been counseled in the past on these veiy

problems, we have seen no improvement so far.”

Colunga Affidavit, Exhibit C, attached to Appendix to

Motion at 26.

In a letter dated May 8, 2003, Colunga wrote Grubb

the following.

On March 10, 2003, you, Jim Evans, Bob Torti,

and mysclf had a mecting to discuss your

sleeping problem. In that meeting as you recall,

we asked for a diagnosis and a prognosis from

your doctor. In addition, we _ strongly

recommended that you get involved with the

“Clear Skies” program, and we gave you their

phone number at that meeting.

To date, we have not seen any improvement in

your. sleeping problem, and _ you _ have

Zla

disregarded the requests we made at our March

10, 2003 meeting. You are still falling asleep

and snoring in meetings, even during

presentations given by different Southwest

Airlines Vice Presidents. Additionally, you have

fallen asleep during numerous simulator and

ground school training events. This behavior

calls the integrity of Southwest Airlines

training into question, and could result in fines

to the Company.

Herb, you have been counseled on this matter

numerous times by the prior management and

by myself no less than 3 times since the end of

2002. This letter is to officially notify you that if

we see no changes with your sleeping problem

or a lack of compliance with our policies, we will

take action to suspend you without pay until

you have taken the action necessary to fix your

problem.

This letter will he placed in your file.

Acceptance of this '» ter only signifies that you

have read it and in 10 way implies that you

agree or disagree with the contents.

Colunga Affidavit, Exhibit D, attached to Appendix to

Motion at 27.

In a memorandum dated August 13, 2008, Colunga

reported the following.

On August 13 it was reported to me that...

Grubb had fallen asleep during a Proficiency

Training event. ...

22a

{[D]uring the time that . .. Grubb fell asleep, the

Pilots vectored themselves onto the final

approach and then went missed approach.

During the missed approach, they shook the

simulator around to see if they could wake him.

This attempt failed and eventually Herb did

wake up on his own. .

Colunga Affidavit, Exhibit E, attached to Appendix to

Motion at 28.

In a memorandum dated November 11, 2003,

Colunga reported a conversation with Grubb regarding

Grubb’s poor hygiene. Colunga told Grubb that he

expected Grubb to “shower daily, wear deodorant,

wear pressed trousers and a nice, clean shirt.” Colunga

Affidavit, Exhibit F, attached to Appendix to Motion at

29. Colunga also observed that Grubb seemed to be

“doing better with his sleeping problem.” Jd.

However, in a letter dated January 14, 2004,

Colunga suspended Grubb for two weeks due to the

fact that Grubb had fallen asleep numerous times in a

PT on January 10, 2004, and noted that Grubb’s

appearance and poor hygiene were a “distraction.”

Colunga Affidavit, Exhibit G, attached to Appendix to

Motion at 30.

In a memorandum to Grubb dated January 30,

2004, Colunga welcomed Grubb back to work but

issued the following warning.

Our Flight Crew Training Instructors perform

safety sensitive duties and mus* be able to give

their full attention to our Pilots’ while

conducting training. This cannot be done if the

23a

Instructor is sleeping or dosing [sic]. As we do

with all Instructors, we will continue to monitor

your performance to ensure that you are

properly performing the duties of an Instructor.

Colunga Affidavit, Exhibit H, attached to Appendix to

Motion at 31.

On February 10, 2004, supervisor Don Shull

(“Shull”) observed Grubb asleep in a _ simulator.

Colunga Affidavit, Exhibit J, attached to Appendix to

Motion at 33; see also id., Exhibit I, attached to

Appendix to Motion at 32 (“At one point he told the

Trainees to prepare for an approach to a certain

runway, and as he turned to change the runway in the

simulator, he dozed off again never changing from the

original runway.”). He was then removed from the

training schedule for the remainder of the month. Zd.

On February 11, Colunga met with Grubb. /d., Exhibit

I, attached to Appendix to Motion at 32. Grubb stated

that he would like to see a specialist in Miami, and

Colunga encouraged Grubb to do so. Id.; see also id.,

Exhibit J, attached to Appendix to Motion at 33.

On March 4, 2004, Grubb fell asleep behind

Colunga numerous times in a monthly instructor

meeting. /d., Exhibit K, attached to Appendix to

Motion at 34. According to Colunga, he “had to reach

over and shake [Colunga] more than once during the

meeting to reawaken him.” Jd.

On March 11, 2004, Southwest held a fact finding

meeting to discuss Grubb’s sleeping problem. /d.,

Exhibit L, attached to Appendix to Motion at 35. On

March 12, 2004, Grubb informed Southwest that,

effective immediately, he was beginning a three and

24a

one-half week sleep apnea medical treatment program.

Id., Exhibit M, attached to Appendix to Motion at 36.

Nevertheless, during May 2004, Grubb fell asleep in a

new hire training meeting. Jd., Exhibit N, attached to

Appendix to Motion at 37.

On June 21, 2004, Southwest terminated Grubb’s

employment. /d. According to Shull, Grubb “nodd[ed]

off during instructor meetings and during office days,

[but] [b]lefore his termination, Southwest gave him

every opportunity to address the lapses and nodding

off, but the behavior continued.” Affidavit of Donald

Shull (“Shull Affidavit”) J 10, attached to Appendix to

Motion at 40.

On June 15 and June 17, 2004, Grubb approached

Monica O'Neill, Southwest’s coordinator of Family and

Medical Leave Act (“FMLA”) benefits. Affidavit of

Monica O'Neill (“O’Neill Affidavit”) 1] 2,5, attached to

Appendix to Motion at 45-46. (’Neill explained

Southwest’s FMLA procedures to Grubb. O’Neill

Affidavit J 6, attached to Appendix to Motion at 46.

That is, O’Neill would provide Southwest employees

with a FMLA application and then call Broadspire,

Aetna’s administrator. Id. J 3, attached to Appendix to

Motion at 45. Broadspire, in turn, would open a file,

assign a claim number, and deliver that claim number

to O’Neill. 7d. After that, O’Neill had no further

involvement in the case unless the employee had a

question about the application process. Jd. Ultimately,

Broadspire would notify O’Neill as to whether an

employee’s application was approved. /d. Southwest is

not authorized to determine if an employee is eligible

for FMLA benefits. Affidavit of Mary Masal (“Masal

Affidavit”) | 7, attached to Appendix to Motion at 50.

O’Neill informed Grubb that he needed to deliver a

25a

medical certification to Broadspire. O’Neill Affidavit

{WI 3, 6, attached to Appendix to Motion at 45-46. After

that, O’Neill had no further contact with Grubb. Id.

{ 7. On June 17, 2004, Broadspire opened a file on

Grubb. Masal Affidavit J 8, attached to Appendix to

Motion at 50. On July 7, 2004, Broadspire canceled

Grubb’s claim after it did not receive Grubb’s medical

certification. Jd. As a result, Broadspire did not

approve Grubb’s application for FMLA benefits. Jd.

Grubb never filed for long term disability benefits.

Affidavit of Gina Del Rosario (“Del Rosario Affidavit”)

{ 7, attached to Appendix to Motion at 52.

On September 29, 2005, Grubb filed this suit,

alleging that Southwest (1) violated the Americans

with Disabilities Act (“the ADA”), 42 U.S.C. § 12101, et

seq., by discharging him because of his disability and

failing to make reasonable accommodation to his

disability; (2) violated the Family Medical Leave Act of

1993 (“FMLA”), 29 U.S.C. § 2601, et seq., by denying

him leave and benefits; (3) deprived him of benefits

under Southwest’s employee benefit plan, in violation

of Section 510 of the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140; and

(4) wrongfully terminated him in violation of Texas

state law. Complaint at 2-3. Southwest now moves for

summary judgment on all of Grubb’s claims.

Il. ANALYSIS

A. Evidentiary Burdens

Summary judgment is proper when the pleadings

and evidence on file show that no genuine issue exists

as to any material fact and that the moving party is

entitled to judgment as a matter of law. FED. R. Civ. P.

26a

56(c).' “(T]he substantive law will identify which facts

are material.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The movant makes such a

showing by informing the court of the basis of its

motion and by identifying the portions of the record

which reveal there are no genuine material fact issues.

See Celotex Corporation v. Catrett, 477 U.S. 317, 323

(1986). Once the movant makes this showing, the

nonmovant must then direct the court’s attention to

evidence in the record sufficient to establish that there

is a genuine issue of material fact for trial. Jd. at 323-

24. To carry this burden, the opponent must do more

than simply show some metaphysical doubt as to the

material facts. Matsushita Electric Industrial Co., Ltd.

v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986).

Instead, he must show that the evidence is sufficient

to support a resolution of the factual issue in his.favor.

Anderson, 477 U.S. at 249. All of the evidence must be

viewed, however, in a light most favorable to the

motion’s opponent. Jd. at 255 (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158-59 (1970)). Summary

judgment is properly entered against the opponent if

after adequate time for discovery, he fails to establish

the existence of an element essential to his case and as

to which he will bear the burden of proof at trial.

Celotex, 477 U.S. at 322-23.

' The disposition of a case through summary judgment “reinforces

the purpose of the Rules, to achieve the just, speedy, and

inexpensive determination of actions, and, when appropriate,

affords a merciful end to litigation that would otherwise be

lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d

1190, 1197 (5th Cir. 1986).

27a

B. ADA Claim

The ADA prohibits discrimination in employment

against qualified persons with a disability. Dupre v.

Charter Behavicral Health Systems of Lafayette Inc.,

242 F.3d 610, 613 (5th Cir. 2001); see also 42 U.S.C.

§ 12112(a). To establish a prima facie case under the

ADA, Grubb must prove (1) that he has a disability

within the meaning of the ADA; (2) that he was

qualified for his job; and, (3) that an adverse

employment decision was made solely because of his

disability. Zenor v. El Paso Healthcare System,

Limited, 176 F.3d 847, 852-53 (5th Cir. 1999);

Hamilton v. Southwestern Bell Telephone Company,

136 F.3d 1047, 1050 (5th Cir. 1998); Turco v. Hoechst

Celanese Corporation, 101 F.3d 1090, 1092 (5th Cir.

1996). Such proof may be established either by direct

evidence or by indirect evidence using the burden-

shifting regimen established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). The ADA defines

the term “disability” as: “(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. § 12102(2).

Grubb must also establish that the impairment, if it

existed as perceived, would be substantially limiting.

McInnis v. Alamo Community College District, 207

F.3d 276, 281 (5th Cir. 2000); see also Deas v. River

West, L.P., 152 F.3d 471, 475-76 (5th Cir. 1998), cert.

denied, 527 U.S. 1035 (1999) and cert. denied, 527 U.S.

1044 (1999).

To establish a violation of the ADA, Grubb must

show “that (1) | Jhe has a disability; (2) | Jhe was

qualified for the job; and (3) an adverse employment

28a

decision was made solely because of [his] disability.”

Rizzo v. Children’s World Learning Centers, Inc., 84

F.3d 758, 763 (5th Cir. 1996); see also Talk v. Delta

Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999). Due

to the absence of direct evidence of discrimination in

this case,” Grubb must use the three-step, “indirect” or

“pretext” method of proof detailed in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973); see

also Daigle v. Liberty Life Insurance Compeny, 70 F.3d

394, 396 (5th Cir. 1995); Rizzo, 84 F.3d at 762. In the

first step, Grubb must establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802.

If he produces proof of the elements of a prima facie

case, a presumption of discrimination arises. See

Bodenheimer v. FPG Industries, Inc., 5 F.3d 955, 957

(5th Cir. 1993). At the second step, Southwest can

rebut this presumption of discrimination by offering a

legitimate, nondiscriminatory reason for its actions.

See Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981). If Southwest

satisfies this burden of production, the prima facie

case dissolves, and the case proceeds to the third step

of the analysis. See St. Mury’s Honor Center v. Hicks,

509 U.S. 502, 507 (1993). At this third stage, the

burden is on Grubb to prove that the reasons offered

by Southwest are pretexts for prohibited

discrimination. See td. at 507-08.

Southwest argues that “nodding off’ is not a

recognizable impairment. Motion at 10. For the

* Direct evidence is evidence which, if believed, proves the fact of

discriminatory animus without inference or presumption. See

Mooney v. Aramco Services Company, 54 F.3d 1207, 1217 (5th Cir.

1995); Brown v. East Mississippi Electric Power Association, 989

F.2d 858, 861 (5th Cir. 1993)

29a

purpose of deciding this motion, however, the court

will assume arguendo that, at all relevant times,

Grubb suffered from a “disability” within the ADA’s

definition of that term. To meet his initial burden

under McDonnell Douglas, however, Grubb must still

provide competent evidence that he was qualified for

his position, and that Southwest discharged him

because of his disability.

To determine whether a plaintiff is otherwise

qualified for a given job, the court must conduct a two-

part inquiry. First, it must determine whether the

plaintiff could perform the essential functions of the

job, #.e, functions that bear more than a marginal

relationship to the job at issue. Second, if the court

finds that the plaintiff is not able to perform the

essential functions of the job, it must determine

whether any reasonable accommodation by the

employer would enable him to perform those functions.

See Chandler v. City of Dallas, 2 F.3d 1385, 1393-94

(5th Cir. 1993) (citing Chiari v. City of League City,

920 F.2d 311, 315 (5th Cir. 1991)), cert. denied, 511

U.S. 1011 (1994); see also Jenkins v. Cleco Power LLC,

No. 05-30744, __ F.3d __ , 2007 WL 1454363, *5 (5th

Cir. May 18, 2007). From the undisputed facts in the

record, the court concludes that Grubb could not

perform the essential functions of his job, and that

Southwest reasonably accommodated Grubb’s

condition.

Southwest maintains that it discharged Grubb not

because of his disability, but because of his poor

productivity and his violation of various workplace

conduct rules. The burden lies with Grubb to show

that he is otherwise qualified. See Turco, 101 F.3d at

1093; Chandler, 2 F.3d at 1394. Grubb has adduced no

30a

facts suggesting that a discriminatory reason likely

motivated the decision to terminate his employment or

that Southwest’s explanation was not credible, t.e., was

probably pretextual. See Hicks, 509 U.S. at 515-18;

Burdine, 450 U.S. at 256. Grubb’s subjective beliefthat

he was a victim of discrimination is insufficient,

without further evidentiary support, to overcome

Southwest’s articulation of a _ legitimate, non-

discriminatory motive for terminating him. Elliott v.

Group Medical & Surgical Service, 714 F.2d 556, 567

(5 Cir. 1983), cert. denied, 467 U.S. 1215 (1984).

Grubb initially did not respond to Southwest’s motion

for summary judgment on his ADA claim but

ultimately filed a supplemental statement regarding

his ADA claim after Southwest filed its motion for

summary judgment. See Supplemental Memorandum,

filed on March 8, 2007. Nevertheless, Grubb is unable

to recover under the ADA because he has not identified

any evidence from which a reasonable factfinder could

conclude that Southwest discriminated against him on

the basis of his disability. Southwest has produced

substantial evidence supporting its claim that its

decision to discharge Grubb was based on legitimate,

nondiscriminatory reasons. See Burdine, 450 U.S. at

253. Grubb has not demonstrated that Southwest's

articulated reasons are false, much less that they are

pretexts for disability discrimination. Hicks, 509 U.S.

at 507-08; Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 147-48 (2000). Grubb’s bare

speculation and subjective belief that Southwest

terminated him because of his disability are not

sufficient to support a claim for disability

discrimination. See Douglass v. United Services

Automobile Association, 79 F.3d 1415, 1430 (5th Cir.

1996) (en banc) (“It is more than well-settled that an

employee’s subjective belief that he suffered an

3la

adverse employment action as aé_e result of

discrimination, without more, is not enough to survive

asummary judgment motion... .”). Itis thus apparent

that Grubb has adduced no evidence that would

authorize a reasonable fact-finder to find, at a trial,

that he was the victim of discrimination when

Southwest terminated his employment. Thus,

Southwest is entitled to summary judgment on

Grubb’s ADA. claim.

C. FMLA Claim

Enacted in 1993, the FMLA sought to meet the

needs of families while accommodating the legitimate

interests of employers. Bocalbos v. National Western

Life Insurance Company, 162 F.3d 379, 382 (5th Cir.

1998) (citing 29 U.S.C. § 2601(b)(3)), cert. denied, 528

U.S. 872 (1999). To achieve this goal, the FMLA allows

eligible employees working for covered employers to

take temporary leave for medical reasons, for the birth

or adoption of a child, and for the care of a spouse,

child, or parent who has a serious health condition. Jd.

(citing 29 U.S.C. §§ 2601(b)(1), 2601(b)(2)). Under its

prescriptive and proscriptive provisions, he FMLA

provides two methods of recovery. 29 U.S.C.

§ 2612(a)(1) (setting forth entitlement to FMLA leave),

2614{a) (providing right to restoration to same or

equivalent position upon return from FMLA leave),

2615{a) (prohibiting interference with employee’s

exercise of FMLA rights). Prescriptively, an eligible

employee is granted the right, under certain

circumstances, to take up to 12 work-weeks of leave in

a 12-month period. 29 U.S.C. § 2612(a)(1). Upon return

from his FMLA leave, the employee is entitled to

immediate restoration to the same position, or its

equivalent, that he occupied prior to leave. Haley v.

32a

Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir.

2004). If an employer should deny the employee these

rights, that employer has violated the FMLA’s

entitlement provision, and recovery ts permitted. See

Porch v. Dillard’s Inc., 2004 WL 1809813, at *6 (N.D.

Tex. Aug. 12, 2004). Proscriptively, the FMLA contains

prohibitions against penalizing an employee for the

exercise of FMLA rights. 29 U.S.C. § 2615(a); see also

Hunt v. Rapides Healthcare System, LLC, 277 F.3d

757, 763 (5th Cir. 2001); Porch v. Dillard’s Inc., 2004

WL 1809813, at *8 (N.D. Tex. Aug. 12, 2004) (FMLA

protects employees from being discriminated or

retaliated against because they have exercised their

rights under the FMLA).

When there is no direct evidence of discriminatory

intent and the employee maintains that discrimination

was the sole reason for his discharge, the burden-

shifting regimen established in McDonnell Douglas

outlined above is utilized to analyze a plaintiffs FMLA

claim. Richardson v. Monitronics International, Inc.,

434 F.3d 327, 332-33 (5th Cir. 2005). However, in cases

in which an employee claims that discrimination was

a motivating factor -- but not the sole factor -- for his

termination, the court utilizes a mixed-motive

framework analysis. That is,

(1) the employee must make a prima facie case

of discrimination; (2) the employer must

articulate a _ legitimate, non-discriminatory

reason for the adverse employment action; and

(3) the employee must offer sufficient evidence

to create a genuine issue of fact either that (a)

the employer's proffered reason is a pretext for

discrimination, or-and herein lies the modifying

distinction-(b) that the employer’s reason,

33a

although true, is but one of the reasons for its

conduct, another of which was discrimination. If

the employee proves that discrimination was a

motivating factor in the employment decision,

the burden again shifts to the employer, this

time to prove that it would have taken the same

action despite the discriminatory animus. The

employer’s final burden “is effectively that of

proving an affirmative defense.”

Id. (footnotes omitted).

Grubb has failed to establish a prima face case of

discrimination. Grubb merely points to the timing of

his termination and the filing of his FMLA claim. Even

if it is assumed arguendo that Grubb had made a

prima facie case, his claim would fail because he did

not create a “genuinely contested 1ssue of material

fact” with respect to Southwest’s “legitimate, non-

discriminatory reason for dismissing” him. See Burton

v. Buckner Children and Family Services, Inc., 104

Fed. Appx. 394, 396 (5th Cir. 2004), cert. denied, 543

U.S. 1050 (2005). Grubb claims that Southwest

terminated his employment because he filed a FMLA

claim. On the other hand, Southwest maintains that it

terminated Grubb’s employment due to his “poor

performance and behavioral problems.” Defendant’s

Reply to Plaintiffs Response to Defendant’s Motion for

Summary Judgment at 5. Grubb has not proven that

Southwest’s proffered reasons for terminating Grubb’s

employment were pretexts for discrimination.

D. ERISA Claim

Grubb avers that Southwest terminated his

employment for the purpose of depriving him of

34a

benefits under Southwest’s employee benefit plan, in

violation of ERISA Section 510. ERISA provides that

“lilt shall be unlawful for any person to discharge...

a participant or beneficiary for exercising any right to

which he is entitled under the provisions of an

employee benefit plan ... or for the purpose of

interfering with the attainment of any right to which

such participant may become entitled under the plan.

...’ 29 U.S.C. § 1140. To recover under this section,

Grubb “need not show that ‘the sole reason for his...

termination was to interfere with pension rights’;

however, the plaintiff must show that the employer

had the ‘specific intent to violate ERISA.” Clark uv.

Resistoflex Company, 854 F.2d 762, 770 (5th Cir. 1988)

(quoting Gavalik v. Continental Can Co., 812 F.2d 834,

851 (3rd Cir.), cert. denied, 484 U.S. 979 (1987))

(emphasis in original).

Under Section 510 of ERISA, Grubb must first

establish a prima facie case that Southwest discharged

him with a specific discriminatory intent to prevent

attainment of benefits to which he would have become

entitied under the plan. 29 U.S.C. § 1140; Stafford v.

True Temper Sports, 123 F.3d 291, 295 (5th Cir. 1997).

“The plaintiff in such an ERISA employment

discrimination test need not prove that the

discriminatory reason was the only reason for

discharge, but he must show that the loss of benefits

was more than an incidental loss from his discharge,

and this inference of discrimination can be proven by

circumstantial evidence.” Stafford, 123 F.3d at 295. If

Grubb can establish his prima facie case of

discrimination, then Southwest must articulate a non-

discriminatory reason for its actions. /d. If Southwest

succeeds in doing so, then the burden shifts back to

Grubb to demonstrate that Southwest’s explanation is

35a

nothing more than pretext, and that the real purpose

he was fired was to deny him benefits governed by

ERISA. Id.

To establish a prima facie case, Grubb must show

that Southwest had the specific intent to violate

ERISA when it terminated him. Unida v. Levi Strauss

& Company, 986 F.2d 970, 980 (5th Cir. 1993). Grubb’s

complaint alleges that he was discharged to prevent

his benefits from vesting under Southwest’s ERISA

plan. Complaint at 2-3. He did not respond to

Southwest’s motion for summary judgement on his

ERISA claim. Grubb cannot survive Southwest’s

motion for summary judgment merely by resting on

the allegations in his pleadings. See Celotex, 477 U.S.

at 324. “[WJhile [Grubb is] entitled to have reasonable

inferences drawn in [his] favor, the inferences to be

drawn must be rational and reasonable, not idle,

speculative, or conjectural.” Unida, 986 F.2d at 980

(internal quotations omitted). It would be speculative

to infer, on the basis of Grubb’s proffered evidence,

that Southwest intended to interfere with Grubb’s

entitlement to pension benefits. See id. The summary

judgment record contains no evidence of any specific

intent on the part of Southwest to prevent Grubb from

obtaining ERISA benefits. Without sufficient evidence

to support a finding that Southwest had the specific

intent to deprive Grubb of benefits under ERISA, the

court need not address the question of whether

Southwest’s stated reason for terminating Grubb was

pretextual. Sce Clark, 854 F.2d ai 771 (“[WlJhere the

only evidence that an employer specifically intended to

violate ERISA is the employee’s lost opportunity to

accrue additional benefits, the employee has not put

forth evidence sufficient to separate that intent from

the myriad of other possible reasons for which an

36a

employer might have discharged him.”) (footnote

omitted).

E. Wrongful Termination Claim

Southwest argues that the ERISA exception to the

well-pleaded complaint rule applies, so that Grubb’s

state law claim for wrongful termination is superseded

by the ERISA preemption provision. Motion at 44.

Grubb did not respond to Southwest’s motion for

summary judgment of his wrongful termination claim.

In his complaint, however, Grubb claims that

Southwest wrongfully terminated his employment to

avoid paying him retirement and pension benefits.

Complaint at 3. According to Southwes!, this claim

arises under ERISA because Grubb’s prayer for past

and future pension rights implicates benefits protected

by ERISA. Motion at 44. A state law claim addressing

the right to receive benefits under an ERISA plan

necessarily “relates to” to ERISA and is thus

preempted. Dorn v. International Brotherhood of

Electrical Workers, 211 F.3d 938, 948 (5th Cir. 2000).

Consequently, Grubb has not stated a viable claim for

wrongful termination. See Herring v. Oxy Vinyls L.P.,

No. H-05-0719, 2005 WL 1653076, *3 (S.D. Tex. July

08, 2005).

III. CONCLUSION

For the reasons stated, Southwest’s motion for

summary judgment is GRANTED.

SO ORDERED.

June 11, 2007.

37a

/s/

A. JOE FISH

CHIEF JUDGE

38a

APPENDIX D

Excerpt from Plaintiffs Original Petition

had to cease dozing in the work place. Plaintiff

attempted counseling, psychologist, psychiatrist.

However, none of these attempts worked, Plaintiffs

involuntary napping during the normal working daily

hours persisted.

II.

In June of 2004, Mr. Grubb pursuant to the Family

Medical Leave Act requested leave to go to Florida to

be treated by a specialist in the field of sleep apnea.

After Plaintiff submitted his request to leave under

Family Medical Leave Act, Defendant wrongfully

terminated Plaintiffs employment. Defendant’s

wrongful termination violated the Family Medical

Leave Act in that Plaintiff was an eligible employce for

the leave and benefits under the act and he was

seeking to have time to treat a serious medical

condition. Defendant’s conduct of termination was

done gross disreyard to Plaintiffs rights under the

Family Medical Leave Act codified in 29 U.S.C.

§2612(a)(1)(D). For which Plaintiff seeks damages.

39a

IV.

The decision to terminate Plaintiff in June of 2004,

and not attempt reasonable accommodation for

Plaintiffs medical condition of severe sleep apnea

violated the Americans with Disability Act. Plaintiff

medical or physical condition of sleep apnea caused

limitation on Plaintiffs major life activities. Plaintiff

had requested te be transferred to another department

for Defendant and Defendant declined to consider this

transfer. Further Defendant refused to allow Plaintiff

leave to have his condition treated by a national

medical authority on Plaintiff's condition. Defendant’s

refusal to consider reasonable accommodation ‘{s*

Plaintiff amounts to a violation of the American with

Disability Act codified at 42 U.S.C. § 12112.

Defendant’s decision to terminate Plaintiff in June

of 2004, was done in part to preclude Plaintiff from

utilizing his rights and benefits through the pension

system in place and to which Plaintiff would have been

entitled. §510 of the Employee Retirement Income

Security Act of 1974 (ERISA) makes it unlawful for an

employer to discharge, discipline an employee for the

PLAINTIFF’S ORIGINAL PETITION Page 2

USCA5 15

40a

APPENDIX E

EXHIBIT A

INSTRUCTOR FLIGHT SIMULATOR

OBSERVATION FORM

DATE: 2/10/04

INSTRUCTOR: Herb Grubb EMPLOYEE#: 49892

OBSERVER: Don Shull EMPLOYEE#: 16019

TYPE TRAINING

CO) INITIAL/DAY 0 PROFICIENCY (PT)

0 UPGRADE/DAY 0. HGS/DAY__

® OTHER: CPT#3 (Sim1)

OVERALL COMMENTS

CPT #3 was flown in Sim #1. Normal CPT3 profile

was not flown from PHX to LAS. Both students

seemed advanced for CPT#3, so Herb used a modified

standard SLC PT profile instead. Briefing was

thorough on SMGCS, aircraft towing to start box, pink

spots, stop bars, etc. HGS symbology discussed in

detail as were AIIl callouts. The CPT period was run

with full motion and visual: Herb demonstrated Apnea

lapses 13 times in 4 hours (most were 5-8 seconds in

duration with one lasting 35-40 seconds).

4la

SPECIFIC COMMENTS

PREPARATION

Well prepared (thorough priefing.

BRIEFING

ATTITUDE: Excellent attitude, verycenthusiastic)

about subject (SMGCS and CAT III approaches)

TRAINEE INTERACTION: Excellent interaction

USE OF TRAINING AIDS: Mainly white erase

board and JEPPS.

TECHNICAL KNOWLEDGE

SIMULATOR PROFILE

Standard SLC profile (slightly modified) with low

vis taxi/takeoff, steep turns, 3 stalls, LNAV holding,

direct intercept, etc. CAT III approaches to 16L & 34R

with missed approaches at 50' and APRCH WARN’s at

a 200-300 ft AGL. VDR approaches were flown to Rwy

30L at HDU. Both students flew V. cuts with engine

relights. CPT profile PHX/LAS not flown, but all items

on that profile (LNAV, holding direct intercepts etc.

accomplished.

A2a

10S OPERATION

Worked panei well, in spite of numerous Apnea

lapses which were normally short in duration (5-8

seconds) with only one lasting in excess of 30 - seconds

35-40). Did not miss any problems students had

during the period.

FOTM COMPLIANCE

Covered items normal CPT3 (PHX/LAS) has in it

plus airwork V. cuts and multiple approaches by using

PT profile. However, Herb did use the period as a

simulator (full motion and visual) Vs. standard CPT

profile guidance.

NOTE WORTHY AREAS

His instructional capabilities and interaction with

his students.

SUGGESTED IMPROVEMENTS

—While Herb did not miss anything | his Students:

ia pais )

seconds usually) do need to get under control a

continuing with students.

DEBRIEFING TECHNIQUES

Recaped the period in about 45 minutes. Answered

all questions the students had. ss vis

techniques for landing out of an offset approach with

nothing but REILS and no VASIL.

43a

INSTRUCTOR DEBRIEFING

Talked about his Apnea problem for 30 minutes

after students left. I suggested he might want to work

in Program Development because of his computer

skills andl hie. sorecell Lalu St ineixustien.Ane_Bis

systems knowledge. I_ mentioned that getting on a

regular sleep schedule vs shifting schedule may help

his Sleep Apnea problem also.

NST. SIGNATURE

OBSERVER SIGNATURE /s/ Donald B. Shull

SWAGRUBB 000199 - 200

USCAS5 505 - 506

44a

APPENDIX F

CASE # 1323481

SOUTHWEST AIRLINES

EMPLOYER'S NOTICE OF FAMILY AND

MEDICAL LEAVE STATUS

Date: 6-17-04 WU Check here if California based

ORIGINAL TO EMPLOYEE

g COPY TO EMPLOYEE’S MEDICAL FILE

To: Herb Grubb Emp.# 49892

From: Monica O’Neill Title: Flight Crew Instructor

WHAT TYPE OF LEAVE IS THIS?

® MEDICAL oF OJI oO FAMILY MEMBER

(parent, child, spouse)

Time used for paid or unpaid medical leave of absence,

paid workers’ compensation leave, and personal leave

of absence for family medical reasons or to care for a

child after birth, adoption or foster care will be

designated FMLA and run concurrently, if qualified.

We are notifying you of your status regarding Family

and Medical leave (Kh MLA) due to:

® A-serious health condition that makes you unable

to perform the essential functions of your job, or

45a

QO The birth of your child, or the placement of a child

with you for adoption or foster care, or

QO Aserious health condition affecting your U spouse,

needed to provide care.

You are: 0 not eligible for FMLA and this leave will

not be counted against your FMLA leave.

& eligible for 480 hours of FMLA leave for the period of

leaving beginning _ , pending receipt of the

application and certification of Physician/Practitioner

to the Company’s Representative (Broadspire, formerly

Kemper), and it will be your responsibility to verify

and track the availability/usage of your FMLA hours.

O not qualified for FMLA entitlement on but

will be qualified on ‘

If approved for FMLA, this leave wil] be counted

against your FMLA leave entitlement. You will be

required to cooperate with the Company or the

Company’s Representative in any FMLA inquiry.

Your health benefits must be maintained during any

period of unpaid FMLA leave under the same

conditions as if you continued to work, and you must

be reinstated to the same or an equivalent job with the

same pay, benefits, and terms and conditions of

employment on your return from leave provided that

you have complied with all Federal requirements

under the Family and Medical Leave Act of 1993

during the qualified FMLA icave of absence.

46a

You will be required to furnish medical certification of

a scrious health condition. You must furnish

appropriate certification to the Company’s

Representative (Broadspire) by 1-1-04 (must be within

15 calendar days) after you are notified of the

requirement or we may delay the start of your leave

until the certification is submitted. The Company’s

Representative may contact the treating provider, with

permission, for purposes of clarification and

authenticity of the medical certification. Please note

that the attendance control policy for your workgroup

will be in force until the Company’s Representative

has approved your FMLA application.

You will be required to furnish periodic reports as

requested by the Company or the Company’s

Representative of your status and intent to return to

work. If no advance notice is provided by the Employee

and none is given during the leave, the Employee has

2 calendar days after returning to work to tell the

Company he/she requests the leave be designated as

FMLA leave.

You may use accrued, unused sick or vacation pay for

unpaid FMLA leave for your own serious health

condition. If the purpose of the leave is to care for or

provide support for an eligible family member and not

your own serious health condition, you will be required

to use vacation days available, then the remainder of

the leave will be unpaid. Non-revenue travel for you

and your eligible dependents and working at another

job are not permitted while using FMLA without prior

written permission, unless the Guidelines for Leaders,

“Your Guide to Southwest Airlines Employce Pass &

Travel Privileges”, and/or the applicable collective

bargaining agrcement provide otherwise.

47a

You will be required to present a fitness-for-duty

certificate (doctor’s note) prior to being restored to

employment. If such certification is required but not

received, your return to work may be delayed.

If the circumstances of your leave change and you are

able to return to work earlier than the date indicated,

you should notify the appropriate person that you are

able to return to work, so that any necessary

scheduling adjustments can be made.

Important

If you normally pay a portion of the premiums for your

health insurance, any premiums that were not

collected from you prior to or during a Family and

Medical Leave of Absence will be collected from your

paycheck upon your return to work. If you have any

questions regarding your health care coverage or

payment of premiums, you should call the People

Service Center at 1-800-551-1211.

Revised February 2004

USCA5 511

48a

APPENDIX G

North Texas Neuroscience Center

Henry G. Raroque, Jr., M.D.

Clinical Associate Professor

Department of Neurology

UT Southwestern Medical Center

American Board of Psychiatry & Neurology

American Board of Clinical Neurophysiology

ABPN Special qualifications in Clinical

Neurophysiology

American Board of Sleep Medicine

4/26/04

To whom it may concern,

Mr Herbert Grubb is a patient in our clinic. He has

been advised to work the aft. shift (5:30 PM to 11 PM)

only.

Sincerely,

H. G. Raroque, Jr.

BAYLOR MEDICAL CENTER AT IRVING

2001 N. MACARTHUR BLVD. SUITE 700A

IRVING TEXAS 75061

BAYLOR HEALTH CENTER AT [IRVING-COPPELL

440 W. INTERSTATE 635, SUITE 234

49a

IRVING TEXAS 75063

BAYLOR GRAPEVINE CAMPUS

1010 W. INTERSTATE 114, SUITE 310

GRAPEVINE, TEXAS 76051

METRO (972) 869-3448 FAX (972) 869-9913

Henry G. Raroque, Jr. M.D.-00040

USCA5 609

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DISTRICT

CIVIL ACTION NO. 3:05-CV-i934-G

[Dated August 15, 2006]

HERBERT GRUBB,

Plaintiff

SOUTHWEST AIRLINES

Defendant.

i A da a

DEPOSITION EXCERPT OF MR. GRUBB

[p.137]

spells that we’ve talked about, were there particular

shifts that were more difficult to work or you had more

nodding off issues?

A. | wasn’t aware it was happening.

Dla

Q. Okay. As it relates to what folks were telling

you about, were there particular shifts that were more

difficult with increased nodding off?

A. Not that ’m aware of.

Q. Okay. So it happened randomly throughout all

the shifts that you were working on; is that correct?

A. I don’t know that it was happening.

Q. Okay. But based off what the employees were

telling you, it was happening throughout all the shifts;

is that correct?

A. That’s what I was told by Mr. Colunga, yes.

Q. Okay. Did you ever make a request that you

work a particular shift in accommodation of your

episodes or spells?

A. Yes.

Q. And why did you do that?

A. Because the doctor recommended that I stay on

a set schedule.

Q. Okay.

A. He wrote a note to that effect.

Q. Okay. What shift did you make your

* we ok

USCAS 720

52a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DISTRICT

CIVIL ACTION NO. 3:05-CV-1934-G

[Filed November 7, 2006]

HERBERT GRUBB,

Plaintiff

SOUTHWEST AIRLINES

Defendant.

a ed

PLAINTIFF'S BRIEF IN SUPPORT OF

PLAINTIFF’S RESPONSE TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

[p.5]

Raroque’s Report 7 April 04, para. Impression(3)). Dr.

Raroque recognized in addition that Plaintiffs CPAP

machine was probably inadequate for the treatment of

Plaintiffs condition of obstructive sleep apnea because

of Plaintiffs weight gain. (Pl. App., p. 82, Raroque’s

Report 7 April 04, para. Impression(3)). Plaintiff

53a

condition of morbid obesity was not medically

addressed until December 29, 2005. (P1. App., p. 136-

137, p. 139, Aff. of Dr. Prieto, para. 2 & 6); (Pl. App., p.

107, Aff. of Grubb, para. 8). Plaintiffs symptoms

associated with the obstructive sleep disorder were not

relieved until Plaintiffs morbid obesity was medically

addressed and Plaintiffs weight significantly reduced.

(Pl. App., p. 139, Aff. of Dr. Prieto, para. 6); (Pl. App.,

p. 102, Aff. of Grubb, para. 8).

Plaintiffs medical chronological of events

associated with his history of obstructive sleep apnea

and morbid obesity starts shortly after being released

by his physicians for the heart surgery in April of

2001. On June 11, 2001, Piaintiff was seen by Dr. Horn

for the followup on the coronary disease and

reassessment of chest pain. (Pl. App., p. 25, Grubb

Dep. Ex. 5). Dr. Horn on June 11, 2001, diagnosed

Plaintiff with sleep apnea and morbid obesity. (PI.

App., p. 25, Grubb Dep. Ex. 5). On June 11, 2001,

Plaintiff had not made an appointment with Dr.

Viroslav for management of Plaintiffs sleep apnea. (PI.

App., p. 25, Grubb Dep. Ex. 5). Plaintiff felt he was

sleeping well and had not experienced or had any

reports up to June 11, 2001, concerning any symptoms

associated with his condition of obstructive sleep

apnea. (Pl. App. p. 100, Aff. Of Herbert Grubb, para.

2). Plaintiff recalls receiving complaints associated

with Plaintiffs falling asleep while talking to a co-

worker or associate after January of 2002. (Pl. App. p.

100, Aff. Of Herbert Grubb, para. 2).

Plaintiffs weight in April of 2001 was only 220

pounds, however by April 1, 2002, Plaintiffs weight

had increased to 339 pounds. (Pl. App., p. 40, Med. Aff.

of Dr. Henderson’s office, Oct. 13, 2005, para. Social

54a

Hist.); (P]. App., p. 101, Aff. of Grubb, para. 3). By

April 1, 2002, Plaintiffs condition of morbid obesity

had significantly worsen and the symptoms associated

with the condition of obstructive sleep apnea had

significantly worsen. Plaintiff was

|p.6]

experiencing symptoms from falling asleep during

inappropriate times. During the period around April of

2002, Plaintiff was being told by friends and

acquaintances that he was falling asleep in the middle

of casual conversations and also it was being reported

to Plaintiff that he was falling asleep at work. The

complaints about falling asleep at work included

during training session with pilots on the simulator.

(Pl. App., p. 101, Aff. of Grubb, para. 3). During most

of the incidences in which Plaintiff had been told by

observers that he had fallen asleep, Plaintiff was not

aware that he was asleep or had fallen asleep.

On April 1, 2002, Plaintiff was advised to call Dr.

Viroslav’s office to set up an appointment with either

Dr. Viroslav or one of his partners for management of

his symptoms associated with obstructive sleep apnea.

(Pl. App., p. 26, Grubb Dep. Ex. 6, para. ); (Pl. App., p.

101, Aff. of Grubb, para. 5). Plaintiff contacted Dr.

Viroslav’s office, Southwest Pulmonary Associates,

LLP, and was assigned Dr. Fernando Torres for

treatment and management of Plaintiffs condition of

vbstructive sleep disorder. In June of 2002, Dr. Torres

had a formal sleep study performed on the Plaintiff. As

a result of the formal sleep, Plaintiff was advised that

he would need to wear a CPAP machine at night to

relieve the symptoms of obstructive sleep disorder. (PI.

App., p. 28, Grubb Dep. Ex. 7); (Pl. App., p. 101 - 102,

55a

Aff. of Grubb, para. 6). Plaintiff wore the CPAP

machine each night as instructed by Dr. Torres.

However, Plaintiff did not receive or experience any

relief from the symptoms of obstructive sleep disorder

such as waking up at night gasping for air. (Pl. App.,

p. 102, Aff. of Grubb, para. 7). Plaintiff continued

receiving complaints from acquaintances that he was

falling asleep during inappropriate times and

associated with the complaints Plaintiff often found

that he was waking up at night gasping for oxygen.

(Pl. App., p. 102, Aff. of Grubb, para. 7). It was

medically confirmed by Dr. Raroque in his April 7,

2004, medical narrative that Plaintiffs CPAP machine

was clinically observed to be ineffective or

inadequately treating Plaintiffs condition of

obstructive sleep disorder. (I'l. App., p. 82, Raroque’s

Report 7 April 04, para. Impression(3)).

Sometime around December of 2002, Mr. David

Colunga, Plaintiffs supervisor,

[p.7]

counseled Plaintiff concerning his sleeping during

instructor’s meeting. (Def. App., p. 15, para. 5).

Plaintiff explained to Mr. Colunga that he was

receiving medical treatment for his problem of sleeping

during inappropriate times. (Pl. App., p. 102-103, Aff.

of Grubb, para. 10). In March of 2003, Mr. Colunga

counseled Plaintiff in the presence of Bob Torti and

Jim Evans concerning Mr. Colunga’s observation of

Plaintiff falling asleep during instructor's meeting and

falling asleep during training pilots in the simulator.

(Def. App., p. 16, para. 6). Plaintiff during the meeting

with Mr. Colunga in March explained that he had been

diagnosed with the condition of sleep apnea and as a

56a

result was receiving medical treatment to address the

problem.

Plaintiff saw Dr. Torres on May 21, 2008,

concerning Plaintiffs obstructive sleep disorder.

Plaintiff followed Dr. Torres’ instructions concerning

the wearing of the prescribed CPAP machine each

night after May 21, 2003. (Pl. App., p. 102, Aff. of

Grubb, para. 9). Despite Plaintiff's compliance with

medical instructions concerning the wearing of the

CPAP machine Plaintiff was not experiencing any

relief from the symptoms of oxygen deprivation at

night during sleep. (Pl. App., p. 102, Aff. of Grubb,

para. 9). Dr. Torres confirms that Plaintiff was still

experiencing symptoms consistent with obstructive

sleep disorder. (P]. App., p. 29, Grubb Dep. Ex. 8, para.

Problems). Simultaneously with the frequency of

events of waking up at night from oxygen deprivation,

Plaintiffs weight had increased from 339 pounds as

reported on April 1, 2002 to over 350 pounds by May

21, 2003. See (Pl. App., p. 26, Grubb Dep. Ex. 6) and

(Pl. App., p. 29, Grubb Dep. Ex. 8, para. Physical

Examination). Mr. Grubb as of May 21, 2003, had not

been placed on any medical program which addressed

his morbid obesity or weight gain. (Pl. App., p. 102,

Aff. of Grubb, paras. 8 & 9). Dr. Torres addressed the

problem associated with Plaintiff increased weight

gain by ordering the CPAP machine to be titrated as

an adjustment for Plaintiffs weight gain. (Pl. App., p.

29, Dep. of Grubb, Ex. 8). On May 21, 2003, Dr. Torres

did not address Plaintiffs weight gain or at any time

thereafter with a medical referral for the weight gain

or present Plaintiff with a medical plan to reduce

Plaintiff's obesity. (Pl. App., p. 102, Aff. of Grubb, para.

9).

57a

[p.8]}

In March of 2004, Plaintiff on the advise of Mr.

Colunga, enrolled in the Clear Skies program and was

admitted into the hospital at Harris Methodist

Hospital for diagnosis under the care of Cathal Grant,

M.D. for treatment of depression and sleep disorder.

(Pl. App., p. 31, Grubb Dep. Ex. 10). While enrolled

under the Clear Skies Program, Plaintiff was given an

appointment to see Dr. Raroque concerning his

episodes of falling asleep at inappropriate times. (PI.

App., p. 103, Aff. of Grubb, para. 13). In April of 2004,

Dr. Raroque performed a number of tests but had not

given an explicit diagnosis as to why Plaintiff's current

treatment was not working. Dr. Raroque’s tests

confirmed and documented that the CPAP machine

was not relieving Plaintiff from the symptoms of sleep

apnea. (Pl. App., p. 33, April 7, 2004, Dr. Raroque

Report, para. Impression (3)). Dr. Raroque medical

opinion was the CPAP machine was inadequate for

treatment of Plaintiffs obstructive sleep disorder

because of Plaintiff's weight gain. (Vl. App., p. 33, April

7, 2004, Dr. Raroque Report, para. Impression(3)).

On June 9, 2004, Plaintiff requested family medical

leave. (Pl. App., p. 104, Aff. of Grubb, para. 15).

During the fact finding mecting on June 9, 2004,

concerning Plaintiffs recent episodes with falling

asleep at work while training pilots on the flight

simulator, Plaintiff requested the opportunity to

exercise leave under the Family Medical Leave Act.

(Pl. App., p. 104, Aff. of Grubb, para. 15). Persons

present at the June 9, 2004, fact finding meeting were

Plaintiff's immediate supervisor, Dave Colunga, Dave

Colunga’s immediate supervisor, Bob Torti, and the

union representative, Jim Evans. (Pl. App., p. 104, Aff.

5&a

of Grubb, para. 15). Mr. Colunga testified on August

24, 2004, at the conclusion of the fact finding meeting

he and management concluded the meeting with

telling Plaintiff to look into leave under FMLA. (PI.

App., p. 125, Excerpt of Hearing Board of Adjustments,

p. 53, 1. 14-24). Plaintiff contacted Monica O'Neill,

person in charge of application and approval for leave

with Southwest Airlines Co. On June 17, 2004, Ms.

O'Neill assigned Plaintiff a case number and a

deadline of July 1, 2004, to have the leave request form

filled out by Plaintiff's physician and returned to

Southwest Airlines Co. (Pl. App., p. 104, Aff. of Grubb,

para. 16); (Pl. App., p. 108, Ex. “B” to Aff. of

wa Ke Os

USCA5S 779 - 782

59a

APPENDIX J

Cathal P. Grant, M.D., P.A.

RETURN TO WORK/SCHOOL AUTHORIZATION

USCA5 822

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Cathal Patrick Grant. V4.D.-606)9

1944-9

APPENDIX K

Deposition Exhibit 12

North Texas Neuroscience Center

Henry G. Raroque, Jr., M.D.

Clinical Associate Professor

Department of Neurology

UT Southwestern Medical Center

American Board of Psychiatry & Neurology

American Board of Clinical Neurophysiology

ABPN Special qualifications in Clinical

Neurophysiology

American Board of Sleep Medicine

April 7, 2004

James Kravetz, MD

Re: Herbert Grubb

Dear Dr. Kravetz:

Thank you for the opportunity to evaluate your

patient, Herbert Grubb. As you recall, he is a 47-year-

old right-handed Caucasian male who has a peculiar

history of spells and sleep disturbance.

In essence, the patient dates his history three years

ago when he had a heart attack and underwent bypass

6la

surgery. Since that time, he has had problems with

symptoms.

{In essence, he has spells. He would mention that in

the meaning would drop his head off for a few seconds

or a few minutes and will continue conversations. He

apparently is fully aware of what is going on. The

people have described him as perhaps being sleepy.

He easily doze off in different places.

This is of course seen in the setting of diagnosis of

sleep apnea performed about two to three years ago

after the heart attack. He does not know his pressures

and I do not have the original diagnostic study. He

apparently tries to use the machine, still snores, has

mouth breathing, takes them out in the middle of the

night and actually sleeps better. He denies any leg

jerking of leg discomfort, but at times may have

cramping sensation in the lower extremities. He has

gained about 100 pound since the heart attack.

He also describes other spells including sensation of

awakening perhaps once a week in the morning and

perhaps being half asleep between 5 or 7, standing up

or sitting in chair, feeling like he has been picked up

and thrown to the ground. He actually falls to ground

during that time. It is not passive feeling of being limp.

Fortunately, he has not injured himself during those

times. He also describes since that time cognitive

impairment which are mainly word finding difficulty.

He denies any deterioration in terms of short-term

memory and the like. He works as an instructor for

pilots and also works on the computer. In the

computer, he sleeps a lot more.

62a

He was thoroughly evaluated and has had conflicting

diagnosis of depression or no depression. In any case,

he even ended up going to an inpatient setting. He has

been given in the last two weeks, Zoloft 100 mg a day

and Wellbutrin 200 mg a day. In the last month, he

has also been given Provigil and the last week, Ambien

10 mg a day.. He claims that the later two drugs may

have helped him, particularly with his cognition.

When queried, he denies any head or neck injuries,

new medication uses, intercurrent illnesses,

nutritional supplementations, and the like.

PMI: High blood pressure and high cholesterol. He is

on atenolol in the last year and Lipitor.

SR: Aside from the above, it is negative for chest pains,

palpitations or dyspnea, bladder or bowel disturbance,

gait difficulty, and focal motor sensory deficits

involving the extremities.

FH: Negative neuromuscular or neurologic conditions.

PSH: He is married, but his wife is not available to

help us out. He has two children. He smokes but he

did not note how much. Does not drink alcoholic

beverages or abuse recreational drugs. He is a flight

instructor.

3DH/MOH: Noncontributory.

PE: Reveals very pleasant cooperative gentlemen who

appears his stated age. Not in any acute

cardiopulmonary stress, BP 130/100, PR 88, and RR

20. Ife was severely overweight for his height of 6'3".

No craniocervical bruits, normal temporal artery

63a

pulsations, palpation of the head and neck without any

significant tenderness. He has crowed oropharynx.

NE: Details of his complete neurological examinaticn

are available and in summary, that were nonfocal. His

mental status, cranial nerve, motor, reflex, sensory,

gait Romberg, meningeal, and cerebellar testing were

nonrevealing.

Impression:

Spells,

s A

Possible automatic behavior.

Less likely, but cannot rule out cataplexy

like attacks.

Less likely seizures, but cannot be sure. It is

not clear whether they are spells or part of

the same process or different entities

altogether. He gives various descriptions at

this time. He certainly needs a workup in

that regard. Whether there is psychological

issues or not is not clear, but he is not

striking he is having depression at this time.

Cognitive impairment, which is not obvious in

this visit.

Cc.

I doubt that this represents a degenerative

condition.

This may be remnants of his previous

cardiac surgery.

This still may indeed represent seizures.

This may be an after effect of the sleep

disturbance.

. Sleep disturbance,

Documented OSA. He certainly has an

inadequate treatment with noted snoring

even with a CPAP and him having mouth

breathing. Either way, I believe that this

64a

may be inadequate particularly seen in the

setting of weight gain.

b. Possible primary hyersomnolent state, but I

still doubt at this time. He is already on

Provigil of course. As a workup, he needs a

CPAP retitration procedure. I would like to

do an MSLT, but first we have to treat his

sleep apnea adequately. He was advised

regarding weight loss and sleep hygiene.

4. He said to have history of depression, but this

did not strike as such. He has already been on

medications for the last week. We will observe

how he does. It is interesting that the Provigil

and Ambien has helped him more. Of course,

there may be~ psychological and

psychophysiologic mechanisms for his sleep

disruption and daytime function also. We wiil

look at this from different prospectus.

I had a very, very long discussion with Mr. Grubb. He

deserves full workup with the symptoms that he is

giving us. We need to do an MRI of the head, carotid

Doppler, and an EEG. We will also do CPAP

retitration procedure. Depending on the results, we

may need to a formal neurocognitive testing. I am

giving her a sleep calendar and a spell calendar. He

will call us for any untoward events. | spoke about

safety and driving on a somnolent condition. I spoke

about social recreational drug restrictions accord to the

Texas Law.

Again, thank you very much for allowing me to

participate in his care. I will keep you apprised of his

progress.

65a

Best personal regards,

Henry G. Raroque, Jr., M.D.

DICTATED BUT NOT READ

BAYLOR MEDICAL CENTER AT IRVING

2001 N. MACARTHUR BLVD. SUITE 700A

IRVING TEXAS 75061

BAYLOR HEALTH CENTER AT IRVING-COPPELL

440 W. INTERSTATE 635, SUITE 234

IRVING TEXAS 75063

BAYLOR GRAPEVINE CAMPUS

1010 W. INTERSTATE 114, SUITE 310

GRAPEVINE, TEXAS 76051

METRO (972) 869-3448 FAX (972) 869-9913

PRODUCED BY PLAINTIFF

(SWA/GRUBB) 000115-000116

USCAS5S 823 - USCA5 824

66a

APPENDIX L

North Texas Neuroscience Center

Henry G. Raroque, Jr., M.D.

Clinical Associate Professor

Department of Neurology

UT Southwestern Medical Center

American Board of Psychiatry & Neurology

American Board of Clinical Neurophysiology

ABPN Special qualifications in Clinical

Neurophysiology

American Board of Sleep Medicine

April 26, 2004

James Kravetz, MD

Re: Herbert Grubb

Dear Dr. Kravetz:

I saw Mr. Grubb today. Since last seen, he had an

EEG, which is normal. His Carotid Dopplers were

been negative. Unfortunately, he could not stand the

MRI lying down and as such, it has not been used.

Since last seen, he was given Ambien, which he claims

has helped him to some degree in the daytime. He still

has the unusual behavior.

We again went through his sleep pattern and he

mentions that he does shift work. He is usually at

67a

night going to bed around 2 or 3 and waking up at

around 9. However, his work schedule has been

disruptive enough that he cannot get a rhythm to

some degree, but his best time is working around

5:30 in the afternoon up to 11, which is one of the

shifts that he works in. We wonder if that is

contributory.

In any case, his symptomatology is otherwise identical.

His examination today does not reveal any new

lateralizing findings of consequence. His BP is

140/100. The rest were unchanged.

Impression:

1. Spells, which may be of different etiology, but I

cannot rule out a sleep-related phenomenon.

We will first focus on that and if it does not help

(including automatic behavior or cataplexia-like

attacks), we may need to do a prolonged EEG.

2. Cognitive impairment, same plan as above.

3. Sleep disturbance,

a. OSA. He is scheduled for a CPAP retitration

in the next week.

b. Possible circadian rhythm disorder including

shift work disorder with insufficient sleep

and a delayed sleep phase syndrome.

c. I cannot rule out a primary hypersomnolent

state at this time as yet. We may consider

an MSLT depending on his course.

4. History of depression, which he claims is stable.

5. Polypharmacy, which he claims is helpful.

| had a vey, very long discussion with Mr. Grubb. He

will maintain a spell calendar and a sleep calendar. I

wrote a letter for his employer to give him a more

regular shift to see if a better scheduling time will help

68a

him in the long term. He will call us for any untoward

events.

Again, thank you very much for allowing me to

participate in his care. I will keep you apprised of his

progress.

Best personal regards,

Henry G. Raroque, Jr., M.D.

DICTATED BUT NOT READ

BAYLOR MEDICAL CENTER AT IRVING

2001 N. MACARTHUR BLVD., SUITE 700A

IRVING, TEXAS 75061

BAYLOR HEALTH CENTER AT IRVING-COPPELL

440 W. INTERSTATE 635, SUITE 225

IRVING, TEXAS 75063

BAYLOR GRAPEVINE CAMPUS

2020 W. INTERSTATE 114, SUITE 310

GRAPEVINE, TEXAS 76051

METRO (972) 869-3448 FAX(972) 869-9913

USCA5 870

69a

APPENDIX M

Excerpt Transcript of David Colunga

8/24/2004

ok ok

[p.53]

operations and I talked to him about that and he let

me know what had gone on during his simulater

period.

Q. Okay. And John Cushman again is who?

A. He’s a new hire pilot with Southwest Airlines.

Q. Okay. And you say you observed him falling

asleep as well?

A. Not in the simulator.

Q. Oh.

A. John Cushman saw him falling asleep in the

simulator and Sean MeGehee saw him in the

simulator.

Q. Okay. Did you do --

A. Rod Jones saw him falling asleep in the

simulator.

70a

@. Did you hold any type of meeting with Herb?

A. Yes, I called for a fact finding and we sat down,

had a fact finding in the conference room with --

present with Herb, Jim Evans, Bob Torti and myself.

@. Do you recall what was discussed at the fact

finding meeting?

A. Yeah. I mean, we kind of let Herb know we’re

kind of at the end of the road here. We’re being put in

a corner. That was when Jim Evans suggested the

FMLA. And, you know, we kind of left the meeting

with saying look into that.

Q. Okay. What was the result of the fact finding

[p.54}

meeting, what did you decide?

A. Eventually I decided to terminate Herb.

Q. What did you base your decision on?

A. Well, just looking back into the past year and a

half or so in working with this problem and dealing

with counseling sessions and suspensions and offers of

help and offers of schedule adjustments and offers to

go see medical people and having him call Clear Skies

and, | mean, you know, short of myself going to

medical school, I don’t know what clse I could have

done.

Q. Okay. Now, you mention that Jim Evans

suggested FMLA?

Tila

A. Right.

q. Why not just let Herb do the FMLA”

A. I don’t know. Jim took the ball and ran with it.

You know, and started doing all the leg work for Herb.

He got a hold of people in flight ops, he got a hold of

people at the training center. Whoever, needed -- he

gave us a report late that evening on what he had done

so far as far as trying to get this done for Herb.

Q@. Okay. My question is though: Why discharge

him if --

A. Well, that’s not part of it. It’s -- it’s just going

back over everything, just back, back, back, back.

* ok of

USCA5 917-918

72a

APPENDIX N

Excerpt Transcript of David Colunga

8/24/2004

* A *K

[p.108]

resign, correct?

> Oo FP

I did, yes.

And he refused to resign, correct?

He did.

And the you terminated him?

That’s correct.

And you gave -- I believe the back page of this

exhibit is on June 21st, Herb’s termination letter?

That’s correct.

Okay. And at the time that you terminated him

on June 21st, were you aware that he had begun the --

he had filled our the FMLA paperwork, he had been

assigned a case number by Southwest, and he was

essentially under -- or in the process of getting his

FMLA leave approved?

73a

A. No, I was not. I knew he was chasing down the

paperwork, but as far as -- as far as what was going

on, where they were in the process, no.

Q. Okay. In the meantime, between the June 8th

meeting and the June 21st meeting, did you ever talk

to Jim Evans about what the status was of Herb’s

FMLA paperwork?

A. I may have asked him once, I don’t recall.

Q. Okay. Will you agree with me that by firing

Herb you prevented him from taking his FMLA leave?

[p.109]

A. Yeah.

Q. Do you believe that Herb’s medical condition

that caused him to nod off prevents him from

performing his job in a simulator and certifying the

pilots?

A. We don’t certify, we train.

@. Okay.

A. So yes.

MR. CARR: I’m going to -- I’m sorry, I’m

going to object to the characterization that this is a

medical issue. He’s already testified he’s not a doctor

and he just knows from what Herb told him it was

sleep apnea. He’s defining it as a medical issue, but

this is not a doctor here who is testifying.

T4a

BOARD MEMBER RYAN: I understand.

BOARD MEMBER EVANS: Both of us.

MR. STANTON: Can you read -- I’m

sorry, can you read back the last question and answer.

(Requested portion read back.)

Q. (By Mr. Noble) Explain to me why it is pilots

comes in for this training. Are they required to do it

under FAA guidelines or the FAA rules?

A. They are required to do it by our -- our training

program.

Q. Okay.

A. Yes.

USCA5 923 - 924

APPENDIX O

Excerpt Transcript of David Colunga

8/24/2004

A. Yes. Herb came into my office, became very

emotional. I came out from behind my desk, sat

next to him, [ put my arm around his shoulder.

I said, Herb, whatever you need from us, let us

know. If you need your sci 2dule adjusted,

whatever you need to get this taken care of, just

tell us. . . . (Excerpt of System Board of

Adjustment Hearing, p. 34.1. 2 - 1.9, appended

hereto)

Respectfully Submitted,

/s/ Konrad Kuczak

KONRAD KUCZAK

Ohio State Bar No. 0011186

130 West Second Street

Suite 1010

Dayton, Ohio 45402-1588

Tel. 937-228-8363

Fax. 937-228-0520

Attorney for Plaintiff

HERBERT GRUBB

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the

foregoing document was served on the Defendant,

76a

Southwest Airlines, by and through its attorney of

record by using the electronic filing system of the

court. The electronic filing system sends a notice to

Defendant’s attorney of record, Ramona Martinez, who

has consented to accept this notice as service of this

document by electronic means.

/s/ Konrad Kuczak

KONRAD KUCZAK

USCA5 1036

77a

APPENDIX P

Excerpt Transcript of David Colunga

8/24/2004

[p.110]

Q. Do you —

A. Depending on what kind of training they’re

dong.

Q. Okay. To be in compliance with Southwest

training program, periodically pilots have to come in

and go through this procedure?

A. Uh-huh.

Q. Is that a “yes”?

A. Yes.

Q. Okay. And do they get any type of -- well, you’re

saying they’re not certified, but within the company,

do they have — [I mean, they have — they have a

schedule they have to keep every ~— how often do they

have to came in for training?

A. Captains every six months. Actually, captains

once a year for proficiency training, first officers, once

every two years for proficiency training.

78a

Q. Okay. And if the captains and the first officers

don’t do that, they can’t fly for Southwest?

A. That’s correct.

Q. Okay. I guess, just for the ease of the

questioning, I’m going te refer to the pilots getting

their certification, but what I’m actually making

reference to is being in compliance with the company

guidelines, okay?

[p.111]

A. Okay.

@. Just so we have that understanding?

A. Okay.

Q. Do you think that Herb’s condition causing him

to nod off prohibits him from properly certifying these

pilots under the Southwest requirements?

A. Yes.

Q. Okay. And you testified earlier that numerous of

the pilot — numerous pilots or several pilots came in

and told you hey, I saw Herb nodding off?

A. Uh-huh.

Q. Is that a “yes”?

A. That’s a yes.

79a

Q. Did you ever make them get recertified by a

different instructor?

A. Actually, | had paperwork from Herb that Herb

himself had signed and affirmed that all the required

items in that training session had been performed

satisfactorily.

Q. Okay. So the answer is no, I didn’t make them

get recertified; is that correct?

A. No, because I had paperwork signed by Herb

that said he had affirmed -- he is affirming that they

had all been trained.

Q. Okay. And that was done in all instances?

[p.112]

A. What was done in all instances?

Q. When the pilots came in and complained hey, my

instructor was nodding off and made the complaints to

you, in all instances, they had the paperwork --

A No, they don’t get the paper -- unless they

request a copy of it, they typically don’t get the

paperwork.

Q. But there was paperwork certifying that they

had met all of --

A. Yeah, every instructor, every check pilot fills out

that paperwork after they get out of the simulator,

after they debrief the pilots, they fill out that

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paperwork and they turn it in downstairs to training

and scheduling before they leave the building.

Q. Okay. But the fact that Herb was nodding off

and the fact that you think the -- his condition causing

him to nodding off prevents him from doing his job and

certifying these pilots, you didn’t bother doing

anything to get them recertified under the program,

did you?

A. Actually, what they do with us is they go

through training. Then they have to take a proficiency

check administered by a Southwest check pilot who is

a FAA designee. Okay. It’s that proficiency check that

the guy -- with us you can never fail a proficiency

[p.113]

training period. There is no -- I mean, you can’t fail

one. You can be asked to come back for more training,

but you can’t fail it. A proficiency check yes, can be

failed, but that is only administered by a check pilot.

All we do is the training portion of it.

MR. NOBLE: Okay. Again, I'm going to

object as nonresponsive. I’m not concerned about check

pilots after the fact.

Q. (By Mr. Noble) You’ve testified that Herb’s

medical condition keeps him from doing his job of

performing these certifications under the Southwest

policy, correct?

A. To the level that we want, yes. It --

Q. Okay.

Sla

A. -- keeps him from doing his job to the level

professionalism that we’re asking for.

q. But every pilot that was certified by Herb and

then came back and complained to you that he was

nodding off, got to maintain their certification and

move on down the road, didn’t they?

A. They finished their training, their training was

complete.

Q. Okay.

A. And Herb signed a form affirming that.

@. And even though you thought that that was

ok OK

USCA5 1374

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.