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
Albeit through a third-party administrator.