Amy DeVoss v. Southwest Airlines Company, 903 F.3d 487

Background

Amy DeVoss, a Southwest flight attendant, took sick leave June 7–11, 2015; on June 8 Southwest notified her she was FMLA-eligible and that an FMLA application was due within 15 days per company policy.
DeVoss did not submit an FMLA application by the June 23 deadline and made no inquiries about applying thereafter.
On June 24 DeVoss called to invoke a commuter policy because she would be late; when told it did not apply she said she was sick and later missed a three-day assignment (June 24–26).
Southwest investigated the June 24 call, concluded DeVoss had been dishonest, and notified her of termination effective July 7; her union grievance was denied and she sued under the FMLA for interference and retaliation.
The district court granted summary judgment to Southwest, finding DeVoss failed to show she gave the required notice of intent to take FMLA leave and, alternatively, failed to raise a genuine issue that Southwest’s nondiscriminatory reason (dishonesty) was pretext.
DeVoss appealed; the Fifth Circuit affirms, agreeing she did not raise a genuine issue on notice and that, even assuming notice, she failed to show pretext. A concurring judge would have affirmed on the notice ground alone.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DeVoss gave proper notice of intent to take FMLA leave	DeVoss argues her June 24 statements and surrounding circumstances suffice or that any deficiency should be excused because Southwest failed to reissue FMLA eligibility notice	Southwest argues DeVoss never submitted the required FMLA application or otherwise gave notice as required by its policies and the FMLA regulations	Court: No genuine dispute — DeVoss did not provide the required notice; June 8 notice covered same illness, so no new notice was required on June 24
Whether employer’s stated reason (dishonesty) was pretext for FMLA discrimination	DeVoss points to procedural irregularities and asserted deviations from policy to show pretext	Southwest points to the June 24 call transcript and an internal investigation showing a good-faith belief in dishonesty	Court: Even assuming prima facie case, DeVoss failed to raise a genuine issue that Southwest’s nondiscriminatory reason was pretextual; employer’s honest belief standard applies
Whether the claim should be treated as FMLA interference (no intent required) or retaliation (intent required)	DeVoss labels both interference and retaliation claims but does not distinguish them on appeal	Southwest treats it as interference/retaliation under §2615(a) requiring discriminatory intent for this pre-leave firing context	Court: DeVoss’s claim arises under §2615(a) and requires a showing of discriminatory motive; she forfeited any distinct retaliation argument by not briefing it
Whether denial of discovery compels reversal	DeVoss challenges a magistrate’s denial to compel discovery	Southwest contends summary judgment was proper regardless; discovery issue is moot if judgment affirmed	Court: Issue is moot because summary judgment affirmed; court does not address discovery denial

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (pretext and burden-shifting in discrimination cases)
Waggoner v. City of Garland, 987 F.2d 1160 (employer's good-faith belief governs termination inquiry)
Caldwell v. KHOU-TV, 850 F.3d 237 (FMLA interference prima facie elements)
Acker v. [Unnamed], 853 F.3d 789 (employers may condition FMLA leave on compliance with notice rules)
Hagen v. Aetna Ins. Co., 808 F.3d 1022 (standard of review for summary judgment)
Chaffin v. John H. Carter Co., Inc., 179 F.3d 316 (distinguishing FMLA entitlement and retaliatory claims)
Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342 (discussion on entitlement vs. retaliation under FMLA)
Russell v. McKinney Hosp. Venture, 235 F.3d 219 (procedural irregularities can support pretext when employer departs from rules)
Price v. Marathon Cheese Corp., 119 F.3d 330 (employee's subjective belief insufficient to show pretext)
Norris v. Causey, 869 F.3d 360 (failure to brief an argument forfeits it)