Supreme Court will not Review ADA Claim of Sleeping Pilot

The U.S. Supreme Court has refused to review a federal appeals court decision holding that Southwest Airlines did not violate the Americans with Disabilities Act (ADA) when it discharged an airline instructor pilot with sleep apnea who repeatedly fell asleep while on duty. See Grubb v. Southwest Airlines, cert. denied 4/20/09. As discussed in the November 2008 edition of Airline Management Letter, the plaintiff flight instructor claimed Southwest 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 plaintiff was counseled repeatedly for falling asleep at work, including while training pilots on simulators. The plaintiff told Southwest he was being treated for a sleep problem; however, he failed to submit a diagnosis and prognosis from a doctor as requested by Southwest. Instead, the plaintiff submitted only a conclusory note that "he was being seen for sleep apnea."

After the plaintiff was discharged, he sued Southwest claiming his discharge violated the ADA and the FMLA. The Fifth Circuit affirmed the trial court's decision granting summary judgment in favor of the airline, holding that the plaintiff was unable to perform his job in a manner that Southwest could reasonably accommodate. The court also affirmed summary judgment on the plaintiff's FMLA claims because he could not show that leave was the reason he was discharged. The court found that Southwest articulated a legitimate, nondiscriminatory reason for the plaintiff's discharge – his performance.

In seeking review of the Fifth Circuit's decision, the plaintiff urged the Supreme Court to resolve a conflict among the federal appeals courts regarding whether the McDonnell Douglas burden-shifting scheme is appropriate for FMLA and ADA cases. The plaintiff argued that the Fifth Circuit wrongly allowed the airline to defeat his FMLA claim by merely stating – not proving – that he would have been fired even if he had not taken the leave. The plaintiff argued that the airline should have been required to prove – not just articulate – that he would have been discharged regardless of requesting or taking FMLA leave.

Southwest argued that the case was inappropriate for resolving the appeals court split on burden allocation in FMLA cases because the plaintiff never proved he was entitled to the leave or that company decision-makers knew he had applied for the leave. In addition, Southwest argued that granting the plaintiff's petition would not resolve an appeals court split because the Fifth Circuit applied the law most favorable to the plaintiff by placing the burden on Southwest to prove that the plaintiff would have been terminated regardless of his leave request. The airline also disagreed with the plaintiff's claim that the federal appeals courts are split on the issue of whether McDonnell Douglas burden shifting applies to ADA reasonable accommodation claims.

Because the Supreme Court refused to review the case, the Fifth Circuit's decision remains in place.