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,