           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 10, 2008

                                       No. 07-11027                   Charles R. Fulbruge III
                                                                              Clerk


HERBERT GRUBB

                                           Plaintiff - Appellant

v.

SOUTHWEST AIRLINES

                                           Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CV-1934


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       This case concerns claims brought by Herbert Grubb against his former
employer, Southwest Airlines (“SWA”), under the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 (“ADA”), and the Family and Medical Leave Act
of 1993, 29 U.S.C. § 2601 (“FMLA”). Grubb claims that SWA violated the ADA
by firing him rather than accommodating his sleep apnea—which caused him to



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 07-11027

“nod off” at work—and the FMLA by firing him rather than granting his request
for leave. The district court granted summary judgment to SWA on both claims.
For the reasons provided below, we affirm.
                      I. FACTS AND PROCEEDINGS
      SWA is a passenger airline company headquartered in Dallas, Texas. In
March of 1999, SWA hired Grubb as a flight instructor. In this position, Grubb
was required to train pilots through flight simulator and class instruction (with
related office hours), and, in so doing, maintain a certain level of expertise by his
own training and technique development in instructor meetings and activities.
SWA employed Grubb in this post until his firing on June 21, 2004. According
to his termination letter, SWA fired Grubb for repeated “sleeping on the job.”
Grubb does not deny sleeping, but asserts that it was caused by sleep apnea—a
condition from which he claims to have suffered since a heart surgery in 2001.
Instead of firing him, Grubb claims that SWA should have accommodated him,
by FMLA leave or otherwise.
      Grubb’s work problems first surfaced in December of 2002 when he failed
to report to work for several days. Shortly thereafter, Grubb was counseled by
a supervisor, David Colunga, about his absences and also about sleeping during
instructor meetings, which Colunga had observed. Grubb reported that “he was
on medication and seeking treatment” for the sleep problem. Colunga offered
help, but Grubb declined. The sleep problem recurred in March of 2003 in an
instructor meeting and in training pilots on a simulator. Grubb was counseled
again in a meeting with Colunga, Bob Torti (a training director and supervisor),
and Jim Evans (a union representative), and was offered help again—this time,
in the form of a referral to SWA’s counseling service. SWA requested a diagnosis

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and prognosis from a doctor, but it appears that Grubb never provided anything
more than a conclusory note that “he was being seen for sleep apnea.”
      As described in the district court’s opinion—a description Grubb does not
dispute—a pattern of sleeping, both during Grubb’s instruction of others and his
own training, followed by supervisor meetings and warnings, continued
throughout 2003. Although Colunga suggested, near the end of 2003, that there
may have been some improvement in the sleeping at work, he suspended Grubb
in January of 2004 due to complaints about Grubb’s “performance in the [flight]
simulator” as well as his appearance and hygiene, which Colunga saw as cause
for concern. Despite the warnings, Grubb fell asleep again on February 11, 2004
during a simulated runway approach for his trainees. Grubb was then removed
from the training schedule for the rest of the month but encouraged by Colunga
to pursue treatment in which Grubb professed interest. The problem recurred
on March 4, 2004, when Grubb fell asleep at an instructor meeting. In response
to SWA’s call for a meeting to discuss the problem again, Grubb asked SWA for
a schedule adjustment to undergo a three and a half week “medical treatment
program for [his] sleeping issues.” Colunga granted the request. Unfortunately,
Grubb fell asleep again at a new hire training program in May of 2004. Colunga,
Torti, Evans, and Grubb met again on June 9, 2004 to discuss the ongoing issue.
      SWA terminated Grubb’s employment on June 21, 2004. Colunga stated
in an affidavit: “I terminated Mr. Grubb based on his behavioral problem for the
past year and a half. Mr. Grubb had failed to improve his problems after the
numerous counseling sessions, offers of schedule adjustments, and offers to take
time off.” Affidavits from Torti and a third supervisor, Donald Shull, echoed
Colunga’s concerns and the various grounds for termination. Regarding Grubb’s

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termination, Shull noted that there was a “well-documented history of Mr.
Grubb’s performance problems . . . [and] [g]iven the fact that [SWA] had given
[him] countless opportunities to improve his problem, I believed [SWA] had no
other option . . . .” Grubb testified that he understood well in advance that “if
the problem continued, . . . it may result in termination.” Although Grubb’s
termination technically violated the collective bargaining agreement by taking
place nine, rather than seven, work days after a counseling meeting, it was later
affirmed by a tribunal established under that agreement.
      Grubb’s chief factual contention on appeal appears to be that he “worked
quite effectively despite having momentary lapses of nodding off.” In support,
he cites positive reviews and his apparent compliance with several Federal
Aviation Administration (“FAA”) regulations. He also argues that he underwent
a series of efforts to treat his “sleep disorder,” although his only record citations
regarding such efforts are a February 4, 2004 doctor’s note authorizing him to
work but indicating “manag[ement] [of] his sleep disorder,”and another doctor’s
note on April 26, 2004 indicating that Grubb “is a patient in our clinic . . . [and]
has been advised to work the [afternoon] shift . . . only.” Although Grubb claims
he requested the afternoon shift, it is unclear what occurred in response. In any
event, Torti (the training director) testified that permitting “Grubb to work a set
shift schedule would require all the other Flight Instructors to work harder and
longer hours than [] Grubb . . . [and] would also require [SWA] to fundamentally
alter its established schedule[,] . . . the office day policy[,] and required hours.”
      Regarding Grubb’s request for FMLA leave, the possibility of such leave
was first raised by Evans (the union representative) in the last group meeting
on June 9, 2004. Colunga asserted in his affidavit, however, that “[d]espite []

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Grubb’s indication that he would inquire as to FMLA, I decided to terminate
[him].” Torti similarly affirmed the absence of any FMLA consideration in the
termination decision. After the meeting—but before his firing—Grubb met with
SWA’s FMLA coordinator, who told him that he would need to submit a medical
certification of eligibility to SWA’s FMLA administrator to qualify for such leave.
Although the process was initiated on June 17, 2004, Grubb never submitted a
certification, and the process was terminated on July 7, 2004. Grubb offered no
evidence that Colunga or Torti were aware of his application for FMLA leave at
the time of his firing.
      On September 29, 2005, Grubb filed this action, alleging violations of the
ADA, FMLA, Employee Retirement Income Security Act of 1974, 29 U.S.C. §
1001 (“ERISA”), and Texas wrongful termination law. SWA moved for summary
judgment on October 27, 2006. The district court granted SWA’s motion in full
on June 11, 2007. Grubb only appeals the ADA and FMLA claims.
      As to the ADA claim, the district court assumed, for the sake of argument,
that Grubb had a “disability” under the statute, but still rejected his claim.
Although it is unclear whether the district court considered Grubb’s claim to be
one for disparate treatment (i.e., he was fired because of a disability) or failure
to accommodate (i.e., he was fired because of performance, but that performance
was caused by a disability that could have been accommodated), its findings
preclude both options. On disparate treatment, the court found that “Grubb has
adduced no facts suggesting that a discriminatory reason likely motivated the
decision to terminate his employment or that [SWA]’s explanation [of poor
productivity and work rule violations] was not credible, i.e., was probably
pretextual.” See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515–18 (1993);

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Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). With regard to
accommodation, the court found that “Grubb could not perform the essential
functions of his job, and [SWA] reasonably accommodated Grubb’s condition,” as
required under the ADA. See Chandler v. City of Dallas, 2 F.3d 1385, 1393–94
(5th Cir. 1993).
      As to Grubb’s FMLA claim, the district court addressed it as a retaliation,
or discrimination, claim rather than a claim for failure to grant leave. As such,
it used the burden-shifting test for indirect evidence discrimination cases that
also involve “mixed motives,” per Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332–33 (5th Cir. 2005)
(applying Desert Palace to FMLA retaliation in indirect evidence, mixed-motive
case). The court found that Grubb failed to offer any evidence of a causal link
between his pursuit of FMLA leave and his firing, and that even if he had, he
also failed to offer any evidence to rebut the legitimate reasons set forth by SWA.
      On appeal, Grubb claims that the district court erred by finding that SWA
both met its affirmative duties under the ADA and FMLA, and did not otherwise
discriminate against him because of his pursuit of FMLA leave. SWA counters
that the district court did not err, and further adds that even if it did, summary
judgment would still be proper because Grubb did not suffer from a “disability”
or “serious health condition” as required by the ADA and FMLA, respectively.
                        II. STANDARD OF REVIEW
      This court reviews grants of summary judgment de novo. Ford Motor Co.
v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment
is proper “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and

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that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
This court “may affirm summary judgment on any legal ground raised below,
even if it was not the basis for the district court’s decision.” Performance
Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).
                              III. DISCUSSION
A. The ADA Claim
      The district court granted summary judgment to SWA on the ADA claim
because it found that SWA neither failed in its accommodation duty, because
Grubb could not perform the essential functions of his job with or without
reasonable accommodation, nor discriminated against Grubb because of his
disability. The district court assumed arguendo that Grubb had a covered
“disability,” which the ADA defines in part as “a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual.” 42 U.S.C. § 12102(2). Because we find that the district court did not
err in its dispositive findings, we also assume, without deciding, that Grubb’s
sleep apnea qualified as a disability.
      Under the ADA, a covered employer—and it is undisputed that SWA is
one—must provide “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship . . . .”                42 U.S.C. §
12112(b)(5)(A).   A “qualified individual with a disability” is one with a
“disability,” who, “with or without reasonable accommodation, can [still] perform
the essential functions of the employment position that [he or she] holds or
desires.” Id. at § 12111(8). Grubb’s challenge fails because he was unable to

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perform his job in a manner that SWA could reasonably accommodate. See
Chandler, 2 F.3d at 1393–94.
      Grubb’s alleged disability involved a basic element of the performance of
his job as a flight instructor, namely being conscious and alert. Lack of physical
presence is a commonly-accepted disqualification for ADA protection. See, e.g.,
Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996); Jackson
v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994); Amato v. St. Luke’s
Episcopal Hosp., 987 F. Supp. 523, 530 (S.D. Tex. 1997). More to the point,
courts have repeatedly approved of ADA-challenged discharges for falling asleep
at work, particularly in safety-sensitive positions. See, e.g., Leonberger v. Martin
Marietta Materials, Inc., 231 F.3d 396, 399 (7th Cir. 2000); Cannon v. Monsanto
Co., No. 05-5558, 2008 WL 236922, at *4 (E.D. La. Jan. 28, 2008) (unpublished);
Brown v. Triboro Coach Corp., 153 F. Supp. 2d 172, 185 (E.D. N.Y. 2001). It is
difficult to fathom how Grubb could instruct future pilots with confidence, or
receive training on how to do so, if he was repeatedly “nodding off.”
Furthermore, in this analysis, “consideration shall be given to the employer’s
judgment as to what functions of a job are essential.” 42 U.S.C. § 12111(8).
After eighteen months of counseling and warnings, there could be no reasonable
doubt, either to the casual observer or to Grubb, where SWA stood on the
matter.
      Of course, the inquiry does not stop with Grubb; the court must also look
at whether SWA met its accommodation obligations. “It is the plaintiff’s burden
to request reasonable accommodations.” Jenkins v. Cleco Power, LLC, 487 F.3d
309, 315 (5th Cir. 2007). The only cited accommodation that Grubb requested
that was not granted was the set shift assignment request reflected in the April

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26, 2004 doctor’s note. Leaving aside that the note did not specify any condition,
but only that Grubb “is a patient in our clinic,” SWA’s training director testified,
without any evidence to the contrary, that the request would impose inordinate
burdens on other SWA employees and require SWA to “fundamentally alter” its
schedules. See Foreman v. Babcok & Wilcox Co., 117 F.3d 800, 809–10 (5th Cir.
1997) (holding that accommodation does not require imposing disparate burdens
on others). Furthermore, given that SWA’s repeated offers and provisions of
assistance, including time off for treatment, failed to resolve the matter for over
a year and a half, the likelihood of further reasonable accommodations rendering
Grubb able to do his job is slim. See Rogers, 87 F.3d at 759–60 (“[R]easonable
accommodation is by its terms most logically construed as that which presently,
or in the immediate future, enables the employee to perform the essential
functions of the job . . . .”). Thus, not only is Grubb not a “qualified individual,”
but SWA also provided any accommodation it may have owed him in any event.
      Turning to the discrimination aspect of the district court’s ADA holding,
Grubb has conceded any appeal on this ground by repeatedly asserting that his
claim is limited to accommodation. Thus, it is unnecessary to proceed further
with this aspect of the district court’s opinion.
B. The FMLA Claim
      In his complaint, Grubb claims that his “wrongful termination violated the
[FMLA] in that [he] was an eligible employee for the leave and benefits under
the act and he was seeking to have time to treat a serious medical condition.”
Treating this claim largely as one for FMLA retaliation or discrimination based
on one’s status as an FMLA applicant, the district court granted summary
judgment to SWA because it found that Grubb did not offer enough evidence of

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a causal link between any leave and his termination, and he could not rebut the
legitimate reasons set forth by SWA for its decision. Grubb focuses his appeal
on the argument that the district court used the wrong framework by analyzing
his claim as a retaliation rather than entitlement claim. Nevertheless, he
appeals the denial of his claim on both retaliation and entitlement grounds. As
described below, we find that (1) although the district court may have erred in
finding that Grubb did not make out a prima facie case on retaliation, it did not
err in rejecting his claim because he could not rebut the legitimate reasons for
his termination, and (2) any claim to entitlement is also subject to dismissal on
summary judgment, whether or not the district court so ruled.
      In assessing Grubb’s FMLA claim as a claim for leave-based retaliation or
discrimination, the district court used a “mixed motive” analysis. That analysis,
which permits a finding of discrimination despite the co-existence of legitimate
motives, was developed by the Supreme Court in evaluating indirect evidence
cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Desert
Palace, 539 U.S. at 98–102. It has since been extended by this court to FMLA
retaliation cases. See Richardson, 434 F.3d at 332–33. It is not clear if Grubb
argues for a “mixed motive” analysis or the more restrictive sole motive test of
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Richardson, 434
F.3d at 332–33 (using Desert Palace for “mixed motive” and McDonnell-Douglas
for “sole” reason cases). Nevertheless, his claim fails on either theory because
although he may be able to show a prima facie case, which is required under
both tests, he cannot show that leave was a reason for his firing—which is
required even under the less restrictive “mixed motive” test. See id. at 333.



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      Under the FMLA, a covered employer—and it is undisputed that SWA is
one—may not “interfere with, restrain, or deny the exercise of or the attempt to
exercise, any [FMLA leave] right,” or otherwise “discriminate against any
individual for opposing any [FMLA-prohibited] practice.” 29 U.S.C. § 2615(a).
To survive summary judgment in the pursuit of violations of the foregoing in an
indirect evidence case, a plaintiff must first establish a prima facie case. As
such, he must show: “1) he was protected under the FMLA; 2) he suffered an
adverse employment action; and 3) he was treated less favorably than an
employee who had not requested leave . . . or the adverse decision was made
because he sought protection under the FMLA.” Mauder v. Metro. Transit Auth.
of Harris County, Tex., 446 F.3d 574, 583 (5th Cir. 2006).
      As to the first element of the prima facie case, there may be enough of an
issue of fact as to whether Grubb had a “serious health condition” for purposes
of FMLA “protection” in seeking leave to survive summary judgment. See
Hurlbert v. St. Mary’s Health Care Sys., 439 F.3d 1286, 1298 (11th Cir. 2006).
The regulations provide that a “serious health condition” exists where one has
an illness and is under the care of a health care provider after a “period of
incapacity” of “more than three days.” 29 C.F.R. § 825.114. Although it does not
appear that Grubb’s condition was particularly acute when he sought leave or
that his FMLA application reached the point of showing how he would use the
leave, his apparent three and a half week treatment in March of 2004 (which he
claims was a “hospitaliz[ation]”) followed by continued physician care may raise
an issue of fact. See Hurlbert, 439 F.3d at 1298.
      Obviously, Grubb suffered an adverse employment action by virtue of his
termination. Thus, the only remaining prima facie issue is whether his firing

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“was made because he sought protection under the FMLA.” Mauder, 446 F.3d
at 583. As a prima facie element, this third prong is not an ultimate showing of
liability, but merely determines whether there is enough evidence to require an
employer to respond. See Burdine, 450 U.S. at 253–54 (observing that the
burden is “not onerous” and only creates a “presumption”). All that is required
is “a causal connection between the protected activity and the discharge.”
Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999). The timing of
Grubb’s June 21 termination shortly after the raising of his possible pursuit of
leave in the June 9 meeting with supervisors is likely sufficient. See Mauder,
446 F.3d at 583 (emphasizing “temporal proximity” in the prima facie context).
      Based on the foregoing, the district court likely erred when it found that
Grubb did not have a prima facie case. Yet, even if Grubb can show a prima
facie case, SWA has the opportunity to articulate—though not necessarily prove,
see Burdine, 450 U.S. at 250—a legitimate non-discriminatory reason for its
action. Grubb must then rebut this articulation by providing enough evidence
to create a genuine issue of material fact that discrimination was nevertheless
present. See Richardson, 434 F.3d at 333. It is on these post-prima facie
elements where Grubb’s claim for FMLA retaliation ultimately fails.
      First, there is no doubt that SWA met its burden of simply articulating a
legitimate non-discriminatory reason for its decision—i.e., performance. See
Hicks, 509 U.S. at 509 (noting that the defendant’s burden is production, not
proof, and “involve[s] no credibility assessment”). Second, the only arguments
that Grubb sets forth to assert that SWA acted because of FMLA leave—i.e., a
two-day firing delay under the labor agreement and the intervening timing of his
application—are insufficient. Failure to follow internal procedures is generally

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not enough to create a genuine issue of fact as to discriminatory motives. See
Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993). Further, speculation
from the timing of Grubb’s FMLA application and his firing is also not enough,
particularly in light of an eighteen month record of warnings and performance
problems that were understood by Grubb as possibly leading to his termination
and the uncontested testimony that SWA’s decision to terminate arose
independently of FMLA leave. See Jarjoura v. Ericsson, Inc., 266 F. Supp. 2d
519, 531 (S.D. Tex. 2003), aff’d, 82 F. App’x 998 (5th Cir. 2003) (unpublished)
(“[T]iming alone is not enough to support retaliation . . . .”); see also Price v.
Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997) (“[One] cannot merely
rely on his subjective belief that discrimination occurred . . . .”). In short, even
if Grubb can show that his efforts to seek FMLA leave are protected, he lacks
evidence to demonstrate that such efforts led to SWA’s decision to fire him.
      The final argument on appeal is one that the district court did not address,
namely whether Grubb’s termination violated the FMLA by effectively denying
him leave to which he would have been entitled. Given its finding in support of
the firing in general, the district court did not go on to deal directly with any
claim to entitlement. Nevertheless, “the FMLA contains two distinct provisions.”
Mauder, 446 F.3d at 580. One—which was explored by the district court and
discussed above—is a “proscriptive” provision that “protects employees from
retaliation or discrimination for exercising their rights under the FMLA.” Id.
The other is a “prescriptive” provision that “creates a series of entitlements or
substantive rights.” Id. Among these FMLA entitlements is the leave that
Grubb sought for his sleep apnea before being terminated. See 29 U.S.C. §
2612(a)(1)(D) (providing up to twelve weeks of annual leave for a “serious health

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condition”). Although there may be an issue of fact as to whether Grubb suffered
from a “serious health condition” for the reasons noted above, SWA’s otherwise
proper termination precludes entitlement to leave.
      As a general proposition, “[a]n employee who requests or takes protected
leave under the FMLA is not entitled to any greater rights or benefits than he
would be entitled to had he not requested or taken leave.” Serio v. Jojo’s Bakery
Rest., 102 F. Supp. 2d 1044, 1051 (S.D. Ind. 2000). This principle is not only
reflected in FMLA regulations on reinstatement, see 29 C.F.R. § 825.216(a), but
is also a matter of common sense. See Throneberry v. McGehee Desha County
Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (describing as “uncluttered logic” its
holding that “an employer who interferes with an employee’s FMLA rights will
not be liable if the employer can prove it would have made the same decision had
the employee not exercised the employee’s FMLA rights”). Moreover, at least for
purposes of the FMLA—if not the ADA—one can be fired for poor performance
even if that performance is due to the same root cause as the need for leave. See
McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir. 2002)
(observing that “the FMLA does not protect an employee from performance
problems caused by the condition for which FMLA leave is taken”). Therefore,
given that SWA’s termination of Grubb was otherwise appropriate, any right to
leave would have been extinguished by SWA’s exercise of that prerogative.
                             IV. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s grant of
summary judgment to SWA on both the ADA and FMLA claims filed by Grubb.




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