Edward Carmona began his employment with defendant Southwest Airlines as a flight attendant in 1991. Carmona had been diagnosed with psoriasis since he was a child. Psoriasis is a skin disease “characterized by thickened patches of inflamed, red skin” that will recur in varying levels of severity. In 1998, Carmona was diagnosed with a more advanced stage of psoriasis, known as psoriatic arthritis. This condition is characterized by frequent flare-ups, which lead to “painful swelling and stiffness in the joints [and] psoriasis on the surface of the skin.” In addition, psoriatic arthritis leaves many individuals, including Carmona, unable to walk or otherwise move without experiencing debilitating pain. Carmona experienced these flare-ups three to four times each month, with each flare-up lasting three or four days.
When Carmona experienced flare-ups, he would file for leave under the Family and Medical Leave Act (FMLA). Southwest hired a third-party, Broadspire, to administer its medical leave program. Broadspire granted intermittent periods of leave during Carmona’s flare-ups until 2005 when it found that Carmona did not meet the eligibility requirements of the FMLA having not worked enough hours during the year.
Additionally, Southwest entered into a collective bargaining agreement with the Transport Workers Union of America. The agreement was in effect for the entirety of Carmona’s employment at Southwest. Under the agreement, Southwest flight attendants would accumulate points for failure to follow the attendance policy. Attendants would accumulate points, for example, when they failed to report or called in sick to a scheduled flight, and the amount of points accumulated depended on the gravity of the offense. At various point levels, flight attendants receive notification. The attendant is not terminated until he/she receives twelve or more points.
After Carmona used up his permitted leave for 2005 under the FMLA, Carmona used a doctor’s note to erase three absences from his record in late April 2005. At this point he had seven points on his record. In May Carmona had several unexcused absences due to a psoriatic arthritis flare-up, and received points for these absences. In June Carmona sprained his thumb and missed several days of work. Southwest sent Carmona a warning letter on June 23. After three more consecutive days of absences, Southwest sent him a termination notice on June 27, noting that he had accrued thirteen points as of June 26.
After being terminated from Southwest, Carmona worked for more than one year on a part-time basis with JetBlue and then Dillard’s as a customer service agent. At JetBlue, Carmona was required to stand behind a desk and check in passengers and their baggage. At Dillard’s, Carmona’s position required him to sit behind a desk and talk to customers. At trial, Carmona indicated that he did not miss any time at either position because of his psoriatic arthritis.
Carmona filed a lawsuit against Southwest in August 2006 alleging that his termination violated the ADA and other federal employment laws. At trial, a jury found for Carmona on the ADA claim and awarded him with $8,000 in back wages. However, the court vacated the jury’s verdict holding that no reasonable jury could find that Carmona had a disability or that he was discriminated against on the basis of a disability. Carmona appealed the decision to the United States Court of Appeals for the Fifth Circuit.
1. Did the district court err by reversing the jury’s verdict that Southwest discriminated against Carmona on the basis of his disability when it terminated him?
In order to prove a disability discrimination claim under the ADA, Carmona had the burden of showing that (1) he was a “individual with a disability” as defined under the ADA; (2) he was a “qualified individual” for his job despite having a disability; and (3) he was terminated on the basis of his disability.
Carmona was required to show that he was “substantially limited” in a “major life activity”. First, the Fifth Circuit ruled that it was error for the trial court to give weight to the fact that Carmona’s conditions were eased by medication. The Fifth Circuit noted that while consideration of ameliorative measures was proper under ADA regulations prior to implementation of the ADA Amendments Act, the jury could reasonably have concluded that Carmona was substantially limited in a major life activity despite the use of medications, because he was still unable to walk or move during flare-ups even after taking his medication.
Second, the Fifth Circuit rejected the trial court’s emphasis on the fact that Carmona maintained employment elsewhere after the termination from Southwest without absence. The Court noted that Carmona worked only as a customer service representative with JetBlue and Dillard’s, which involved “minimal amounts of walking.” As such, the jury reasonably concluded that Carmona was substantially limited in the major life activity of walking, while still being able to perform the more limited duties at Jet Blue and Dillard’s.
Finally, the Fifth Circuit rejected Southwest’s argument that intermittent flare-ups cannot constitute a substantial limitation as a matter of law. The Court held Carmona’s flare-ups were not infrequent because he spent between “one-third to one-half of each month unable to walk without excruciating pain.”
The Fifth Circuit rejected Southwest’s argument that no reasonable jury could have found Carmona was qualified for his position, since his psoriatic arthritis precluded regular attendance at his job. The Court noted that the parties never disputed Carmona was able to perform the essential functions of his job as a flight attendant. The issue, therefore, was “whether or not his irregular attendance made him unqualified” for the position. However, Southwest maintained a very lenient attendance policy and Carmona was able to maintain employment for over seven years, despite sporadic attendance.
The Court acknowledged past cases have held “[r]eporting on time and regular attendance is an essential function of any job.” However, the Court concluded it was not unreasonable for a jury to determine that Carmona was qualified for his position because of Southwest’s lenient attendance policy. Thus, the Court held that his disability did not render him unqualified for a position as a flight attendant even though it caused him to miss a substantial amount of work during the term of his employment.
The Fifth Circuit rejected Southwest’s argument that a reasonable jury would have to find that Carmona was terminated because of violations of the attendance policy based on the evidence at trial. The Court rejected this argument because Carmona presented evidence that several flight attendants had exceeded the twelve point record limit and were not terminated.
Based on these legal determinations, the Fifth Circuit concluded that Carmona demonstrated his burden of proving the prima facie elements of a disability discrimination claim under the ADA, and vacated the decision back to the district court to determine whether reinstatement was the proper remedy.
Carmona represents a plaintiff-friendly decision under the ADA in that the Fifth Circuit departed from, or at least distinguished, past precedent that intermittent flare-ups do not constitute disabilities for ADA purposes.
For example, in Waldrip v. General Electric, the Fifth Circuit held that the plaintiff’s occasional chronic pancreatitis flare-ups did not constitute a disability where they caused him to miss only several weeks of work each year. Also in Wynn v. Whitney Holding Company, the U.S. District Court for the Middle District of Louisiana held that the plaintiff’s multiple sclerosis flare-ups did not constitute a disability, where they occurred only two to three times a year, even though they limited her stamina significantly and her ability to walk and lift heavy objects. In both of these cases, a jury and judge agreed that the conditions, though temporarily affecting the plaintiffs’ ability to work, did not rise to the level of creating a substantial limitation on any major activity.
The difference in the Fifth Circuit between occasional flare-ups, in cases like Waldrip and Wynn deemed to not constitute a disability, and frequent flare-ups, in cases like Carmona deemed to constitute a disability, is highly fact-sensitive. Employers and attorneys in the Fifth Circuit should be aware of these distinctions.
The Fifth Circuit in Carmona held that the new ADA Amendments should not be applied retroactively to cases that commenced before January 1, 2009, the effective date of the Amendments. In doing so, the Fifth Circuit was consistently applying precedent from its previous decisions and precedent from other states. For example, in EEOC v. Agro Distribution, the Fifth Circuit noted that the ADA Amendments should not apply retroactively because they did not constitute a Congressional reversal of Supreme Court precedent or interpretation. Similarly, the Sixth Circuit in Milholland v. Sumner County Board of Education determined that the ADA Amendments were not retroactive on claims accruing before the January 1, 2009 effective date.