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