United States Court of Appeals

Fifth Circuit

FILED

March 22, 2010

Charles R. Fulbruge III

Clerk

REVISED April 12, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51175

EDWARD CARMONA

Plaintiff-Appellant

v.

SOUTHWEST AIRLINES COMPANY

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant, Edward Carmona, sued defendant-appellee,

Southwest Airlines Co. (Southwest), claiming that the termination of his

employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and

the Americans with Disabilities Act (ADA). The case was tried before a jury,

which found that Southwest had discriminated against Carmona because of

his disability and awarded him $80,000.00 in lost wages. The jury found no

liability on Carmona’s Title VII claim. The district court accepted the jury’s

verdict on Carmona’s Title VII claim, vacated the jury’s verdict on Carmona’s

ADA claim, and granted judgment as a matter of law to Southwest. Carmona
2

now appeals. For the following reasons, we reverse in part, vacate in part,

and remand.

FACTS AND PROCEEDINGS BELOW

Carmona was diagnosed with psoriasis when he was twelve or thirteen

years old. Psoriasis is a skin disease characterized by thickened patches of

inflamed, red skin, often covered by silvery scales. American Medical

Association, Encyclopedia of Medicine 830 (Charles B. Clayman ed., Random

House 1989). Although individual attacks of psoriasis can be completely

relieved, the disease itself is not usually curable, and it tends to recur in

attacks of varying severity. Id. Carmona began working as a flight attendant

at Southwest in 1991. 

In 1998, Carmona was diagnosed with psoriatic arthritis, which is a

condition that develops in about thirty-five percent of people who have

psoriasis. Psoriatic arthritis causes painful swelling and stiffness in the

joints during attacks of psoriasis on the surface of the skin. During flare-ups

of his psoriatic arthritis, Carmona cannot walk or move around without great

pain. It also makes it harder for him to sleep. Carmona’s psoriatic arthritis

flares up three or four times every month, and each flare-up lasts for three or

four days. In other words, Carmona spends anywhere from about one-third to

about one-half of each month unable to move without a great deal of pain. He

filed for intermittent Family and Medical Leave Act (FMLA) leave so that he

could be excused from work during these flare-ups. Southwest’s third-party

FMLA administrator, Broadspire Administrator Services, Inc. (Broadspire),

granted this leave in 1998. Broadspire renewed the leave periodically until

April 2005, when it found that Carmona had not worked enough hours to be

eligible for renewal. 
3

Southwest’s attendance policy is governed by the “Agreement Between

Southwest Airlines Co. and The Flight Attendants in the Service of

Southwest Airlines Co. As Represented By the Transport Workers Union of

America, AFL-CIO” (Agreement). Under the Agreement, flight attendants

accrue points for various types of attendance lapses, such as calling in sick,

failing to show up for a flight without advance notice, or failing to report to

scheduling. Different types of lapses result in the accrual of different

numbers of points. For example, calling in sick without a doctor’s note results

in the addition of a half-point to the flight attendant’s record, while a failure

to show up without any kind of prior notice to the airline results in the

addition of two-and-a-half points. 

Points do not remain on the flight attendant’s record permanently. All

points that are more than sixteen months old are automatically “rolled off.” If

a flight attendant does not accrue any points during a calendar quarter, his

running total is reduced by two. Both of these reductions are known as

“record improvement.” Points are not assigned for absences that result from

approved FMLA leave. Also, a flight attendant may use a doctor’s note once

every calendar quarter to remove all points associated with the ailment that

is verified by the note. The flight attendants’ records are kept in pencil,

because they are frequently altered by doctors’ notes, FMLA leave, and pretermination reviews. 

When a flight attendant reaches between five and six-and-a-half points,

he is issued a “letter of counsel.” When the flight attendant reaches between

seven and nine points, he is issued a “written warning.” When the flight

attendant reaches between nine-and-a-half and eleven-and-a-half points, he

is issued a “final warning.” Termination occurs when a flight attendant

reaches or exceeds twelve points. However, termination cannot occur under
4

the terms of the Agreement if the flight attendant was not timely served with

the letter of counsel, the written warning, and the final warning. 

Additionally, before termination is finalized, Southwest reviews and

recalculates the points to verify that the flight attendant has reached at least

twelve points. Southwest then issues a termination level notification and

holds a fact-finding meeting to discuss the situation with the flight attendant

and a representative of the flight attendant’s union. After these

precautionary steps, if Southwest remains convinced that the flight attendant

has accrued twelve or more points, then the flight attendant is issued a

termination letter, and his employment is terminated. 

Carmona used a doctor’s note to cover three absences resulting from a

flare-up of his psoriatic arthritis in late April 2005. He contends that he tried

to excuse these absences using his FMLA leave but was not permitted to do so

by Southwest on the ground that he was not eligible for leave. Southwest’s

manager contends that Carmona was eligible to excuse two of the three

absences with his FMLA leave but chose to use a doctor’s note instead.

On April 30, 2005, Carmona’s FMLA leave expired. He was unable to

renew it, because, according to Southwest and Broadspire, he had not worked

enough hours that year to be eligible to renew it. Accordingly, after May 1,

2005, he was no longer able to excuse absences caused by his psoriatic

arthritis with FMLA leave. At the end of April, Southwest appears to have

believed that he had either six-and-a-half or seven points on his record. 

Southwest sent Carmona three letters of counsel on April 7, April 26,

and May 4, 2005. In early May, a flare-up of his psoriatic arthritis caused

him to miss several days of work. These absences were not excused, because

Carmona had been unable to renew his FMLA leave and had already used his

doctor’s note for the second quarter of 2005 in April. On May 10, 2005,
5

Southwest sent Carmona a written warning. 

On June 21, 2005, Carmona sprained his thumb at home. He did not

report to work the next day as scheduled, but went to the hospital instead to

have his thumb examined. The hospital released him around midnight of

June 23. However, he did not return to work until June 27, because of the

swelling in his hand. At trial, it was disputed whether or not this absence

was in accordance with the hospital’s instructions. Carmona testified that he

faxed two doctors’ notes to Southwest, one of which said that he should return

to work the morning of June 23, and the other of which said that he would

need to stay home for three or four days. Southwest contended that it had

only received the note saying he could return to work the morning of June 23.

On June 23, 2005, Southwest sent Carmona his final warning. It

issued him a termination level notice on June 27, which indicated that he had

accumulated thirteen points as of June 26. Under the Agreement between

the flight attendants’ union and Southwest, a flight attendant must be

terminated within seven days of reaching twelve points. Kevin Clark (Clark),

Southwest’s In-Flight Base Manager for Houston, requested an extension of

this deadline, because he was unable to find a time within seven days of June

26 when he, Carmona, and a representative from Carmona’s union could meet

to hold the fact-finding meeting to which Carmona was entitled. At trial,

Carmona testified that his union representative told him that he had to grant

Southwest the extension or it would terminate him immediately. He decided

to grant the extension. 

Before the fact-finding meeting, Clark reviewed Carmona’s attendance

points and concluded that Carmona’s record was incorrect, because Clark

calculated that it should have reflected sixteen-and-a-half points, instead of

thirteen. At the meeting, Clark asserted this view. Stacy Martin (Martin),
6

Carmona’s union representative, calculated Carmona’s total to be fourteen

points. Because the representative of the union and Southwest’s manager

both agreed that Carmona was in excess of twelve points, he was terminated

for excessive absenteeism without further procedure. Carmona testified at

trial that, after the meeting, when Martin learned more about the

circumstances of Carmona’s absences, Martin stated that he did not believe

that Clark had told the entire truth during the meeting. Carmona attempted

to bring grievance proceedings through his union, but the union determined

that his grievance lacked merit. He then obtained counsel and appealed his

grievance to the Railway Labor Act (RLA) Board of Adjustment (Board), but

the Board upheld his termination. 

After his termination, Carmona worked as a customer service agent for

Jet Blue airlines on a part-time basis, which did not exceed twelve hours per

week. This job required him to stand behind a desk and check in passengers,

meet flights on the jet way, and check baggage. After nine months, he left Jet

Blue and began working at Dillard’s. This job required him to sit behind a

desk all day, which aggravated his condition. However, Carmona admitted at

trial that he did not miss work at either Jet Blue or Dillard’s as a result of his

psoriatic arthritis.

Carmona filed suit against Southwest on August 14, 2006, claiming

that his termination violated the gender discrimination provisions of Title

VII, the disability discrimination provisions of the ADA, and the FMLA. He

dropped his FMLA claim during the course of the proceedings. On May 25,

2007, Southwest filed a motion for summary judgment, arguing, among other

things, that Carmona’s claims were preempted by the RLA. The district court

agreed that Carmona’s claims were preempted by the RLA and granted

Southwest’s motion. Carmona appealed the grant of summary judgment to
7

this court, which reversed and remanded on July 16, 2008. Carmona v.

Southwest Airlines Co., 536 F.3d 344 (5th Cir. 2008). 

On August 7, 2008, the district court set the case for jury trial in

October 2008. On September 3, the district court held a hearing on the

remainder of Southwest’s motion for summary judgment and denied the

motion. At this hearing, Carmona stated that he was ready to proceed to trial

immediately and declined the district court’s invitation to engage in

additional discovery. On September 25, 2008, the court reset the trial to

begin on September 29, 2008. The district court stated that this would be

necessary, because its docket was completely full in October and November. 

On September 28, Carmona filed a motion to compel Southwest to produce

Rita Ilgen (Ilgen), one of its employees, as a witness, or, alternatively, a

motion for a continuance pending Ilgen’s return from her vacation outside of

subpoena range. Carmona stated that Ilgen was important to his gender

discrimination claim, because Clark, the same supervisor who had

terminated Carmona, had not assigned her points when she was arrested for

driving under the influence. The district court denied this motion on

September 29, stating that it had no room on its docket to delay the trial. 

The trial began as scheduled on September 29.

Southwest moved for judgment as a matter of law at the conclusion of

each party’s case, arguing, inter alia, that Carmona had failed to produce

sufficient evidence for a reasonable jury to find that he was an “individual

with a disability” within the meaning of the ADA, that he was “qualified” to

work as a flight attendant within the meaning of the ADA, or that he had

been discriminated against “because of” his disability. See 42 U.S.C.A. §§
1 Section 12102 states in relevant part:

“As used in this chapter:

. . .

(2) Disability

The term ‘disability’ means, with respect to an individual— 

(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.A.

§ 12102 (2005) (emphasis in original).

2 Section 12112 states in relevant part:

“(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.” 42 U.S.C.A. § 12112 (2005) (emphasis in

original).

8

12102,1 121122(2005). The trial court carried Southwest’s motion pending

submission of the case to the jury. On October 2, 2008, the jury returned a

verdict finding for Carmona on his ADA claim and awarding him $80,000 in

lost back wages, but finding against him on his Title VII claim. Following the

verdict, Southwest renewed its motion for judgment as a matter of law, and

Carmona moved for reinstatement. The district court granted Southwest’s

motion on October 20, accepting the jury’s verdict as to Title VII, vacating the

verdict as to the ADA claim, and denying Carmona’s motion for

reinstatement. The district court vacated the verdict on Carmona’s ADA

claim because it found that he had presented insufficient evidence that he

was an “individual with a disability” or that he had been discriminated

against “because of” his disability. The district court rejected Southwest’s

argument that Carmona had failed to produce substantial evidence that he

was “qualified” for his job within the meaning of the ADA. Final judgment
9

that he take nothing by his suit was issued on October 20, 2008. Carmona

timely filed notice of appeal on November 14, 2008.

DISCUSSION

On appeal, Carmona argues that the district court erred in granting

judgment as a matter of law to Southwest on his ADA claim. He argues that,

should we agree that the district court erred in overturning the jury verdict,

we must also find that the district court erred by failing to reinstate him. He

also argues that the district court erred in failing to grant a continuance so

that Ilgen could be compelled to testify. Southwest disputes each of

Carmona’s assignments of error. Furthermore, although Southwest argues

that the district court’s judgment as a matter of law was correct, Southwest

contends that the district court erred in its analysis of this issue by finding

that Carmona had presented sufficient evidence for a reasonable jury to find

that he was “qualified” for his job within the meaning of the ADA.

I. Judgment as a Matter of Law on Carmona’s ADA Claim

In order to hold Southwest liable for discrimination under the ADA,

Carmona needed to establish (1) that he was an “individual with a disability”

within the meaning of the ADA, (2) that he was a “qualified individual” for

his job, despite his disability, and (3) that he was discharged “because of” his

disability. See 42 U.S.C.A. §§ 12102, 12112 (2005). In order to survive a

motion for judgment as a matter of law, he needed to produce enough

evidence in support of each of these elements to allow a reasonable jury to

find in his favor. See, e.g., EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d

724, 730 (5th Cir. 2007). 

A. Standard of Review

We review a district court’s ruling on a motion for judgment as a matter

of law de novo. E.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 622
10

(5th Cir. 2009). We examine all of the evidence in the record as a whole,

including evidence that does not support the non-moving party’s case. 

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir. 1996). 

However, we must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the non-moving

party. Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003);

Farpella-Crosby, 97 F.3d at 805-06. We do not assess the credibility of the

witnesses or weigh the evidence. Palasota, 342 F.3d at 574.

Judgment as a matter of law is appropriate where there is no legally

sufficient evidence upon which the jury could find for a party on its claim. 

E.g., Hagan, 529 F.3d at 622. There is no legally sufficient evidence upon

which a jury could find for a party where the facts and inferences point so

strongly and overwhelmingly in favor of the moving party that reasonable

jurors could not arrive at a contrary verdict. See, e.g., Burch v. Coca-Cola,

119 F.3d 305, 313 (5th Cir. 1997); Boeing Co. v. Shipman, 411 F.2d 365,

374–75 (5th Cir. 1969) (en banc).

B. “Individual with a Disability”

Carmona needed to establish that he was an “individual with a

disability” within the meaning of the ADA in order to qualify for protection

under its provisions. See 42 U.S.C.A. § 12112(a) (2005). In order to establish

that he had a disability, Carmona needed to show that he had:

“(A) a physical or mental impairment that substantially

limit[ed] one or more . . . major life activities . . . ;

(B) a record of such an impairment; or

(C) [was] regarded as having such an impairment.” See 42

U.S.C.A. § 12102(2) (2005) (emphasis in original).

The United States Supreme Court adopted a strict interpretation of this

definition in the cases of Sutton v. United Airlines, Inc. and Toyota Motor
11

Manufacturing, Kentucky , Inc. v. Williams. Sutton, 119 S.Ct. 2139 (1999),

superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553; Williams, 122 S.Ct. 681 (2002), superseded by statute, ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. In Sutton, the

Court held that the mitigating effects of medications had to be taken into

account in determining whether or not a person was “substantially limited” in

performing a major life activity. Sutton, 119 S.Ct. at 2146. In Williams, the

Court held that the phrase “substantially limited” precluded impairments

that interfered with major life activities in only minor ways from qualifying

as “disabilities” under the ADA. Williams, 122 S.Ct. at 691. Williams also

noted that major life activities are those activities which are of central

importance to daily life, such as walking, seeing, and hearing. Id. 

The district court found that, although Carmona had presented

sufficient evidence that he had an impairment that affected his major life

activities of sleeping, standing, and walking, he had not presented sufficient

evidence that this impairment was substantially limiting. The district court

reached its conclusion in part because it found that our holding in Waldrip v.

General Electric Co., 325 F.3d 652 (5th Cir. 2003), controlled Carmona’s case. 

The district court interpreted Waldrip as standing for the proposition that

impairments that cause temporary, intermittent limitations of major life

activities are not substantially limiting as a matter of law.

Shortly before Carmona’s case went to trial, Congress amended the

ADA in order to correct what it viewed as an overly restrictive interpretation

of the statute’s terms that had been adopted by the Supreme Court in Sutton

and Williams. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553. These amendments would be very favorable to Carmona’s case if
12

they are applicable, because they make it easier for a plaintiff with an

episodic condition like Carmona’s to establish that he is an “individual with a

disability.” See id. Carmona argued unsuccessfully in the district court that

the district court needed to interpret the ADA’s definition of “disability” in

light of the meaning adopted by these amendments. 

On appeal, Carmona again contends that we must interpret the terms

of the ADA in light of the meaning adopted by the ADA Amendments Act of

2008 (ADAAA). He also argues that, even if we decline to interpret the ADA

in light of these amendments, he presented sufficient evidence for a

reasonable jury to find that he was an “individual with a disability” under the

old standards established by Sutton and Williams. 

We begin our analysis by addressing Carmona’s argument that we

should interpret the ADA’s definition of “disability” in light of the recent

amendments. We have already addressed this issue generally. In EEOC v.

Agro Distribution, LLC, we stated that the ADAAA did not apply

retroactively. 555 F.3d 462, 469 n.8 (5th Cir. 2009). Carmona contends in his

brief that he is not arguing for retroactive application of the amendments. 

Instead, he argues that Supreme Court precedent establishes that

“[s]ubsequent legislation declaring the intent of an earlier law is entitled to

great weight when it comes to statutory construction,” citing NLRB v. Bell

Aerospace Co., Red Lion Broadcasting Co. v. FCC, and Glidden v. Zdanok for

support. Bell Aerospace Co., 94 S.Ct. 1757 (1974), overruled on other grounds

by NLRB v. Hendricks County Rural Elec. Membership Corp., 102 S.Ct. 216

(1981); Red Lion Broadcasting Co., 89 S.Ct. 1794 (1969); Glidden, 82 S.Ct.

1459 (1962). These cases are not on point. In Bell Aerospace and Red Lion

Broadcasting, the meaning of the statutes at issue before the Supreme Court
13

had not been definitively established by the Court in any of its prior opinions. 

See Bell Aerospace Co., 94 S.Ct. at 1768; Red Lion Broadcasting Co., 89 S.Ct.

at 1802. Thus, the “subsequent legislation” at issue in these cases did not

involve a Congressional overturning of settled Supreme Court precedent. 

Each case involved a situation in which the Court examined a statute and

established its definitive interpretation for the first time. 

In Glidden, the Eighty-third and Eighty-fifth Congresses had passed

legislation that disagreed with a line of Supreme Court cases that had held

that earlier Congresses had not established the United States Court of

Customs and Patent Appeals or the United States Court of Claims as Article

III courts. Glidden, 82 S.Ct. at 1463. In reviewing the Eighty-third and

Eighty-fifth Congresses’ legislation, the Supreme Court stated that, in

judging for itself whether or not the precedent in question had been correctly

decided, it was proper to give some weight to the later Congresses’

interpretation of the earlier Congresses’ intent in establishing the courts. Id.

at 1468. Ultimately, however, the Supreme Court stated that it was not

bound by the Eighty-third and the Eighty-fifth Congresses’ interpretation,

because the case involved a constitutional question. Id. The presence of a

constitutional question gave the Court the power to invalidate the later

Congresses’ desired interpretation. Therefore, as in Bell Aerospace and Red

Lion Broadcasting, the Court had yet to render a definitive interpretation of

the statute at issue in Glidden when it decided to give some weight to the

later Congresses’ interpretation.

Carmona’s case is different, because the Supreme Court established the

definitive interpretation of the ADA’s definition of “disability” in Sutton and

Williams. This interpretation was later partially overruled by the ADAAA,
14

but until the ADAAA went into effect, all lower courts remained bound by the

Supreme Court’s settled interpretation. The effective date of the ADAAA was

January 1, 2009. This case was filed, tried, and decided before then. 

Therefore, in order for us to depart from the Supreme Court’s settled

interpretation, we would need to find that Congress intended the ADAAA to

apply retroactively. We have already declined to do that. See Agro

Distribution, LLC, 555 F.3d at 469 n.8. Accordingly, we must apply the

Supreme Court’s pre-ADAA definition of “disability.”

Carmona only claims to have established that he was an “individual

with a disability” under Prong (A) of the ADA’s definition of “disability.” See

42 U.S.C.A. §§ 12102(2). Specifically, he asserts that he submitted sufficient

evidence for a reasonable jury to find that his psoriasis and his psoriatic

arthritis substantially limited his major life activities of sleeping, walking,

and standing. We do not address Carmona’s arguments that he presented

sufficient evidence that he was substantially limited in the major life

activities of sleeping and standing, because we find that he presented

sufficient evidence that he was substantially limited in the major life activity

of walking. 

Carmona testified that his psoriatic arthritis made him unable to walk

when it flared-up. He stated that, “when that happens I just stay immobile

. . . wherever I am. Or if I do move, I crawl around . . . it’s quite painful.” He

testified that these flare-ups could occur as often as twice in the same week. 

This testimony was corroborated by documents entered into evidence by both

Carmona and Southwest that contained medical evaluations of Carmona’s

condition that were made and signed by Carmona’s physician, Dr. Tom Roark

(Roark). In these documents, Roark stated that Carmona needed to be

granted intermittent FMLA leave, because he would be “incapacitated” three
15

to four times every month for three to four days at a time.

The district court found that this evidence was insufficient to establish

that Carmona was substantially limited in the major life activity of walking

for both factual and legal reasons. Southwest echoes these arguments on

appeal. We will examine the factual reasons first.

The district court reasoned that Carmona had undermined his own

factual evidence of disability by testifying that (1) he had not declared himself

disabled when he applied to work for Southwest in 1991, (2) his symptoms

were mostly on his skin, (3) his symptoms were eased by medication, (4) he

was able to ride his bike, shop, cook, walk, stand, and perform other tasks,

and (5) after his termination, he went to work for Jet Blue and Dillard’s

without missing any scheduled work. We must view the evidence in the light

most favorable to Carmona while evaluating these arguments. See Palasota,

342 F.3d at 574. 

Arguments (1) and (2) are flawed, because they fail to distinguish

between Carmona’s psoriasis and his psoriatic arthritis. Carmona never

alleged that his psoriasis impaired his ability to walk. Carmona had psoriasis

when he went to work for Southwest in 1991, but he did not develop psoriatic

arthritis until 1998. Therefore, there was no reason for him to disclose that

he was disabled when he applied for his job with Southwest in 1991. 

Similarly, when Carmona testified that his symptoms of psoriasis were

“mostly on the skin,” he was describing the symptoms of his psoriasis, not his

psoriatic arthritis. 

As to Argument (3), it does not necessarily follow from the fact that

Carmona’s symptoms were “eased” by taking medication that he was no

longer substantially limited in his ability to walk. The jury rationally could

have concluded that, even with his medication, Carmona was still
16

substantially limited in his ability to walk during the flare-ups of his psoriatic

arthritis. See EEOC v. Phillips Chem. Co., 570 F.3d 606, 620 (5th Cir. 2009)

(“Individuals who take medication or use corrective devices to lessen an

impairment but still remain substantially limited as to one or more major life

activities are still disabled under the ADA.”)

Argument (4) is the product of selective quotation. In its opinion, the

district court stated that “Mr. Carmona testified he was able to live by

himself without assistance, take care of himself, read, drive, ride his bike,

shop, cook, walk, and stand, most of the time.” Southwest took this a step

further in its brief, omitting “most of the time” and stating that “[Carmona] is

able to drive, read, ride his bike, go shopping, and cook, and lives by himself

and is able to care for himself.” Carmona’s actual testimony was that:

“ Q. [By Counsel for Southwest] Do you still live by yourself?

A. [By Carmona] Yes, I do.

Q. And you were able to take care of yourself, correct?

A. For the most part, yes.

Q. You were able to read, to drive, to ride your bike, and shop

and cook?

A. On good days, yes, ma’am.

Q. And most of the time, you’re able to walk and stand, correct?

A. On good days, yes, ma’am.” (Emphasis added.)

Every one of Carmona’s responses was qualified in a manner that was

consistent with the rest of his testimony. Nothing in this testimony refuted

his claim that his periodic flare-ups of psoriatic arthritis substantially limited

his ability to walk.

Argument (5), that Carmona’s evidence of disability was undermined by

his admission that he had not missed any work because of his condition while

he was employed by Jet Blue or Dillard’s, has more merit. It seems strange

that an employee who was medically excused from work for up to fifteen days
17

a month at one job would have a perfect attendance record at his next job. 

However, Carmona’s jobs at Jet Blue and Dillard’s could reasonably be found

materially different in presently relevant respects from his job at Southwest. 

At Dillard’s, Carmona’s job was performed entirely while seated at a desk. 

Although Carmona testified that sitting aggravated his condition, he never

contended that his psoriatic arthritis substantially limited his ability to sit. 

Thus, the jury reasonably could have concluded that he was able to work this

job during his flare-ups, even if getting to and from the job was extremely

painful. At Jet Blue, Carmona worked part-time as a customer service agent,

which required him to stand behind a desk, meet flights on the jet way, and

check baggage. Although this job required him to stand, it involved minimal

amounts of walking. Jet Blue did not allow him to work this job for more

than twelve hours a week. Under these facts, and mindful of the rule that we

must view them in the light most favorable to Carmona, we find that the jury

rationally could have concluded that Carmona was able to work for Jet Blue

despite being substantially limited in his ability to walk, because he could

tolerate the pain long enough to make it through a part-time day as a

customer service agent.

The district court and Southwest also argue that Carmona failed to

produce sufficient evidence to establish that he was disabled as a matter of

law, because our case law holds that intermittent flare-ups cannot be

considered substantially limiting. The case cited for this proposition by both

Southwest and the district court is Waldrip. 325 F.3d at 652. However,

Waldrip involved a situation in which the plaintiff’s doctor testified that, “at

most, he occasionally must miss a few days of work when his chronic

pancreatitis flares up.” Id. at 657 (emphasis added). The occasional flare-ups

in Waldrip and the frequent, recurrent flare-ups that Carmona experiences
18

are substantially different situations, though both could be described as

“intermittent.” In Waldrip, the plaintiff’s occasional flare-ups did not

substantially limit any of his major life activities, because they were so few

and far between. See id. Carmona spends anywhere from about one-third to

about one-half of each month unable to walk without excruciating pain. It

would be difficult to argue that this does not substantially limit his ability to

walk. 

There was sufficient evidence for a reasonable jury to find that

Carmona was an “individual with a disability” within the meaning of the

ADA, because there was sufficient evidence for a reasonable jury to conclude

that he had an impairment, psoriatic arthritis, that substantially limited his

major life activity of walking. The district court erred in holding otherwise. 

C. “Qualified Individual”

In addition to establishing that he was an “individual with a disability,”

Carmona needed to establish that he was “qualified” for his job within the

meaning of the ADA. See 42 U.S.C.A. § 12112(a) (2005). The ADA defines a

“Qualified individual with a disability” as:

“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 employer’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.” 42 U.S.C.A. § 12111(8) (2005). 

Southwest argues that Carmona could not have established that he was

qualified for his job because precedent from our Circuit holds that regular

attendance is a necessary qualification for most jobs, and Carmona’s
19

disability prevented him from attending his job regularly. See generally

Smith v. Lattimore Materials Co., 287 F. Supp. 2d 667, 672 (E.D. Tex.), aff’d,

77 F. App’x 729 (5th Cir. 2003) (“Reporting on time and regular attendance is

an essential function of any job.”).

The district court disagreed with Southwest, finding that the evidence

introduced at trial was sufficient to allow a reasonable jury to conclude that

flight attendants’ schedules at Southwest were extremely flexible. Therefore,

the district court reasoned that, while regular attendance might be a

requirement of most jobs, it was not a requirement of Carmona’s position at

Southwest.

We are sympathetic to the argument that Carmona was not qualified to

be a flight attendant at Southwest because his disability prevented him from

showing up for work on scheduled days. Although the evidence showed that

Southwest’s flight attendants have nearly unlimited discretion in

determining when and how often they want to work, it did not show that they

may skip the days they have scheduled at will. The attendance policy itself

was evidence that, once a flight attendant scheduled himself to work on a

particular day, he had to go to work on that day or find a substitute. 

Carmona introduced evidence that there were “reserve” flight

attendants available at Southwest’s base stations, but the evidence also

overwhelmingly indicated that these reserve flight attendants were

emergency measures only. There were limited numbers of reserve flight

attendants, they were only available at certain airports, known as “base

cities,” and Southwest often ran out of them by noon. Therefore, while a

regular attendance schedule was not an essential requirement of Carmona’s
3 Albeit through a third-party administrator.

20

position, Southwest could have argued that attendance on scheduled days

was required.

But under the facts of this case, Southwest could not have prevailed on

this argument, either, because there was sufficient evidence that its own

actions reflected that attendance on scheduled days was not required. 

Southwest approved Carmona’s intermittent FMLA leave,3 which permitted

Carmona to miss over half of each working month without notice. 

Southwest’s attendance policy then prevented these absences from being

counted against him. If Southwest had denied Carmona’s request for

intermittent FMLA leave, it might have had a strong argument that as a

matter of law Carmona was not qualified to work as a flight attendant. 

However, under the facts of this case, it could reasonably be found that

Southwest essentially conceded that Carmona was qualified by granting him

intermittent FMLA leave and then tolerating his FMLA-approved absences

for seven years. Furthermore, Southwest did not assert at trial that it had

terminated Carmona because his disability prevented him from showing up to

work consistently on his scheduled days. And it does not do so now. Instead,

Southwest argues that it terminated him because it believed that he had

violated its attendance policy. 

The jury could reasonably find that Carmona was a “qualified person

with a disability” within the meaning of the ADA.

D. Discriminated Against “Because of” His Disability

The final element Carmona needed to establish in order to prevail on

his ADA claim was that Southwest discriminated against him “because of” his

disability when it terminated him. See 42 U.S.C.A. § 12112(a) (2005). Once
21

an employer has produced sufficient evidence to support a nondiscriminatory

explanation for its decision to terminate an employee, the employee may

“establish that he was the victim of intentional discrimination ‘by showing

that the employer’s proffered explanation is unworthy of credence.’” Reeves v.

Sanderson Plumbing Prod., Inc., 120 S.Ct. 2097, 2106 (2000) (quoting Texas

Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089, 1095 (1981)). “[I]t is

permissible for the trier of fact to infer the ultimate fact of discrimination

from the falsity of the employer’s explanation.” Reeves, 120 S.Ct. at 2108

(emphasis in original). 

Southwest asserted at trial that it had fired Carmona for violating its

attendance policy. Carmona introduced evidence in the form of documents

and testimony that five other flight attendants had reached or exceeded

twelve attendance points without being terminated. Southwest admitted that

all five of these flight attendants were female, but their identities were not

disclosed. The district court admitted portions of their attendance records in

Plaintiff’s Exhibits 4 through 9. Plaintiff’s Exhibits 7 and 8 were taken from

the same employee’s record. Because the names of these employees were

withheld, we will refer to each by the number of the exhibit that contained

her employment records. 

Southwest argues on appeal, as it argued at trial, that none of these

employees’ situations were similar to Carmona’s. Clark testified that

Employees 4, 5, and 9 were not terminated, even though they reached or

exceeded twelve attendance points, because they were not timely issued one

or more of the warning letters that had to be issued before termination could

occur under the Agreement between Southwest and its flight attendants. 

However, as Carmona’s attorney noted at trial, and as Carmona argues now,

the memoranda found in Plaintiff’s Exhibits 4, 5, and 9 all state that these
22

employees “were issued all letters of discipline timely.” (Emphasis added.) 

Clark attempted to resolve this apparent discrepancy by testifying that these

statements indicated that the employees in question had been issued timely

all letters of discipline up to, but not including, their termination letters. 

While this explanation may be plausible, the jury was not required to believe

it. The explicit, unqualified statement contained in each memorandum that

all letters of discipline had been issued timely provided grounds for a

reasonable jury to reject Clark’s testimony that the statements were

implicitly qualified. In conducting a review for the sufficiency of the evidence,

we accept all credibility choices made by the jury. Goodman v. Harris

County, 571 F.3d 388, 398 (5th Cir. 2009), pet. denied, ___ S.Ct. ___, 2010 WL

154980, ___ S.Ct. ___, 2010 WL 154983 (2010). Accordingly, although the

issue is indeed a close one, we ultimately conclude that Carmona’s jury

reasonably could have found that Southwest had allowed other flight

attendants to exceed twelve points without being terminated. 

Southwest also argues that the female employees whose records were

introduced in Plaintiff’s Exhibits 4 through 9 were not proper comparators for

the purpose of establishing discrimination, because Carmona did not offer any

proof that these women were individuals without disabilities. The logic

behind this argument is that if these women were also disabled, but allowed

to keep their jobs, then no reasonable jury could have inferred that Carmona’s

disability was a motivating factor in his discharge. Carmona argues that the

jury was entitled to assume Employees 4 through 9 were not disabled,

because no evidence suggested that they were disabled, and most individuals

are not disabled.

We agree that Southwest’s argument on this issue is without merit. It

is generally recognized that a party has the burden of proof on an issue when
23

the facts with regard to the issue lie peculiarly within the knowledge of that

party. McCormick on Evidence 950 (3d ed., Edward W. Cleary ed.,1984). 

Another relevant principle is that the risk of failure of proof may properly fall

upon the party who contends that the more unusual event has occurred. Id. 

In this case, Southwest withheld all information about Employees 4 through

9 except for their sex. There is no doubt that most people are not individuals

with disabilities. Therefore, if Southwest knew that one or more of

Employees 4 through 9 was disabled, it bore the burden of coming forward

with that information at trial. Indeed, it seems strange that Southwest

would not have introduced evidence that one or more of these employees was

disabled, if it were true, given the detrimental effect this information would

have had on Carmona’s case. Therefore, we find that the jury was entitled to 

assume, based on the absence of proof to the contrary and the probabilities of

the situation, that the employees represented by Exhibits 4 through 9 were

not disabled. 

Moreover, some of Carmona’s trial evidence supported an inference that

his disability-related absences irritated his supervisors. Clark characterized

Carmona’s attendance record between 2003 and 2005 as “one of the worst

ones that we had,” noting that “roughly 40 percent of the time that’s

represented on the calendar is sick time.” However, Clark admitted that the

vast majority of these absences could not be counted against Carmona

because of his intermittent FMLA leave and his doctors’ notes. Michael

Mankin, Clark’s superior, testified that Carmona’s attendance was

“extremely poor.” All things considered, a reasonable jury could properly

infer that, when Carmona’s record eventually indicated that he had exceeded

twelve points, his supervisors jumped at the chance to terminate him and did

everything they could to ensure that his points would still exceed twelve after
24

his pre-termination review, even though leniency had been granted to

similarly-situated employees who were not disabled. Though, as stated, the

issue is a close one, we ultimately conclude that a reasonable jury could have

found Southwest’s proffered explanation for Carmona’s discharge was false

and that the true reason was his disability. 

E. Conclusion

A reasonable jury could have concluded, based on the evidence in this

case, that Carmona was an “individual with a disability” within the meaning

of the ADA, that he was “qualified” for his position within the meaning of the

ADA, and that he was terminated “because of” his disability. See 42 U.S.C.A.

§§ 12102, 12111, 12112 (2005). Therefore, we hold that the district court

erred in granting judgment as a matter of law to Southwest. 

II. Reinstatement

Carmona argues that if the district court erred in granting judgment as

a matter of law to Southwest, then it also erred in denying his motion for

reinstatement. We review a district court’s determination of whether or not

to grant reinstatement for abuse of discretion. Brunneman v. Terra Int’l, Inc.,

975 F.2d 175, 180 (5th Cir. 1992).

The ADA adopts the remedies set forth in Title VII. See 42 U.S.C. §

12117 (2005) (“The powers, remedies, and procedures set forth in sections

2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9 of this title shall be the

powers, remedies and procedures this subchapter provides to . . . any person

alleging discrimination on the basis of disability in violation of any provision

of this chapter . . . .”). Title VII states in part that, “If the court finds that the

respondent has intentionally engaged in . . . an unlawful employment practice

charged in the complaint, the court may . . . order such affirmative action as

may be appropriate, which may include, but is not limited to,
25

reinstatement . . . .” 42 U.S.C. § 2000e–5(g)(1) (2003). We have held that the

decision of whether or not to grant reinstatement is within the discretion of

the district court and that a court may properly consider factors such as the

availability of positions, the plaintiff’s current employment status, and the

impact reinstatement would have on employee relations in making its

decision. Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254-55

(5th Cir. 1995). 

Southwest argues that the district court did not make the decision to

deny Carmona’s motion for reinstatement independently of its decision to

grant judgment as a matter of law to Southwest. Southwest notes that it did

not even have time to respond to Carmona’s motion for reinstatement before

the district court ruled on it. Therefore, Southwest argues that we should

remand the issue of reinstatement to the district court if we determine that

the district court erred in granting judgment as a matter of law to Southwest,

so that the district court may fully examine the issue and the relevant factors.

The district court addressed the issue of reinstatement in a single

sentence: “After consideration of the Defendant’s motion and renewed motion

for judgment as a matter of law and in light of the evidence adduced at trial,

the Court declines to exercise its equitable jurisdiction to reinstate Mr.

Carmona.” The district court made no factual findings regarding the

feasibility of reinstating Carmona that could support its order denying

reinstatement independently of its decision to grant judgment as a matter of

law to Southwest. We agree with Southwest that the district court’s order

denying reinstatement should be vacated and this issue should be remanded

to the district court for reconsideration in light of our holding that it was
4Carmona’s final assignment of error is that the district court erred in refusing to

grant him a continuance so that he could obtain the testimony of Ilgen. We decline to reach

this issue, because we hold that the district court erred in granting Southwest’s motion for

judgment as a matter of law. 

26

error to grant Southwest’s motion for judgment as a matter of law.4

CONCLUSION

For the foregoing reasons, we reverse the portion of the district court’s

order granting Southwest’s motion for judgment as a matter of law, vacate

the portion of the district court’s order denying Carmona’s motion for

reinstatement, and remand the case with instructions that judgment be

entered for Carmona in accordance with the jury’s verdict and that Carmona’s

motion for reinstatement be reconsidered in light of our holding. 

REVERSED in part, VACATED in part, and REMANDED.