• Court Finds that Airline did not Discriminate against Sleeping Instructor
  • December 19, 2008
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • The Fifth Circuit Court of Appeals recently affirmed the decision of a federal trial court granting summary judgment to Southwest Airlines on a former employee's claims that the airline violated the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). See Grubb v. Southwest Airlines (5th Cir. October 10, 2008). In this case, the plaintiff, a 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.

    In his position as a flight instructor, Grubb was required to train pilots through flight simulator and class instruction and maintain a certain level of expertise by his own training and technique development in instructor meetings and activities. Beginning in 2002 and continuing until his termination in 2004, Grubb was counseled repeatedly for falling asleep during instructor meetings and while training pilots on simulators. Grubb 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, Grubb submitted only a conclusory note that "he was being seen for sleep apnea."

    Although Southwest counseled Grubb about his sleeping issues several times and offered schedule adjustments as well as time off, his performance did not improve and, ultimately, he was discharged.

    Assuming, without deciding, that Grubb's sleep apnea qualified as a disability under the ADA, the Fifth Circuit affirmed summary judgment in favor of Southwest, finding that Grubb was unable to perform his job in a manner that Southwest could reasonably accommodate. The court noted, "courts have repeatedly approved of ADA-challenged discharges for falling asleep at work, particularly in safety-sensitive positions." In this case, the court found it "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.'"

    Additionally, the court held that Southwest provided any accommodation it may have owed Grubb. The airline granted all of Grubb's requested accommodations other than a set shift assignment, which Southwest established would impose inordinate burdens on other Southwest employees and require the airline to fundamentally alter its schedules.

    The court also affirmed summary judgment on Grubb'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 Grubb's discharge – his performance. Southwest's failure to follow its internal procedures in discharging him and speculation based on the timing of his FMLA application and his discharge were not sufficient to create a genuine issue of fact as to discriminatory motives.

    The court also held that Grubb's termination did not violate the FMLA by denying him leave to which he would have been entitled. An 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. Thus, under the FMLA, an employee "can be fired for poor performance even if that performance is due to the same root cause as the need for leave." Accordingly, since Southwest's termination of Grubb was otherwise appropriate, "any right to leave would have been extinguished by SWA's exercise of that prerogative."