Herbert Grubb, who worked as a flight instructor for Southwest Airlines, was fired after he fell asleep several times at work. Grubb admitted falling asleep at work, but he asserted that the cause was sleep apnea acquired through heart surgery in 2001. Southwest counseled Grubb, who provided a "conclusory note that he was being seen for sleep apnea." Grubb, later fired for falling asleep at work, claimed that Southwest should have accommodated him under the Family and Medical Leave Act.
Grubb sued under the Americans with Disabilities Act, FMLA, the Employee Retirement Income Security Act and Texas’ wrongful termination law in a Texas U.S. District Court.
With respect to his ADA claim, the court found that under a disparate treatment theory, "Grubb has adduced no facts suggesting that a discriminatory reason likely motivated the decision to terminate his employment or that [the airline’s] explanation [of poor productivity and work rule violations] was not credible, i.e., was probably pretextual." Grubb also failed to show a causal link between his pursuit of FMLA leave and his termination from employment. After the district court found in favor of the airline, Grubb appealed as to his ADA and FMLA claims.
The U.S. Court of Appeals for the 5th Circuit, based in Dallas, affirmed the district court’s decision that Grubb failed to show that the airline violated the ADA by firing him. Southwest had offered Grubb reasonable accommodations for more than a year and a half, which included time off. Grubb’s FMLA claim also failed. The court stated "one can be fired for poor performance even if that performance is due to the same root cause as the need for leave." Grubb v. Southwest Airlines, 5th Cir., No. 07-11027, unpublished opinion (10/10/08).
IMPACT: Employers must engage in an interactive process with employees seeking accommodation for a disability or leave under the FMLA.
Workforce Management, November 17, 2008, p. 11 -- Subscribe Now!