                        REVISED MAY 11, 2010

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

                                                                 FILED
                                 No. 08-51175                   April 22, 2010

                                                                Lyle W. Cayce
EDWARD CARMONA                                                       Clerk

                                          Plaintiff-Appellant
v.

SOUTHWEST AIRLINES COMPANY

                                          Defendant-Appellee



                Appeal from the United States District Court
                     for the Western District of Texas


Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
GARWOOD, Circuit Judge:
      The motion for rehearing of defendant-appellee Southwest Airlines
Company is overruled, the prior opinion issued herein March 22, 2010 is
hereby withdrawn and the following opinion is hereby substituted for it, viz:
      Plaintiff-appellant, Edward Carmona, sued defendant-appellee,
Southwest Airlines Co. (Southwest), claiming that the termination of his
employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and
the Americans with Disabilities Act (ADA). The case was tried before a jury,
which found that Southwest had discriminated against Carmona because of
his disability and awarded him $80,000.00 in lost wages. The jury found no
liability on Carmona’s Title VII claim. The district court accepted the jury’s
verdict on Carmona’s Title VII claim, vacated the jury’s verdict on Carmona’s
ADA claim, and granted judgment as a matter of law to Southwest. Carmona
now appeals. For the following reasons, we reverse in part, vacate in part,
and remand.
                   FACTS AND PROCEEDINGS BELOW
      Carmona was diagnosed with psoriasis when he was twelve or thirteen
years old. Psoriasis is a skin disease characterized by thickened patches of
inflamed, red skin, often covered by silvery scales. American Medical
Association, Encyclopedia of Medicine 830 (Charles B. Clayman ed., Random
House 1989). Although individual attacks of psoriasis can be completely
relieved, the disease itself is not usually curable, and it tends to recur in
attacks of varying severity. Id. Carmona began working as a flight attendant
at Southwest in 1991.
      In 1998, Carmona was diagnosed with psoriatic arthritis, which is a
condition that develops in about thirty-five percent of people who have
psoriasis. Psoriatic arthritis causes painful swelling and stiffness in the
joints during attacks of psoriasis on the surface of the skin. During flare-ups
of his psoriatic arthritis, Carmona cannot walk or move around without great
pain. It also makes it harder for him to sleep. Carmona’s psoriatic arthritis
flares up three or four times every month, and each flare-up lasts for three or
four days. In other words, Carmona spends anywhere from about one-third to
about one-half of each month unable to move without a great deal of pain. He
filed for intermittent Family and Medical Leave Act (FMLA) leave so that he
could be excused from work during these flare-ups. Southwest’s third-party
FMLA administrator, Broadspire Administrator Services, Inc. (Broadspire),
granted this leave in 1998. Broadspire renewed the leave periodically until

                                         2
April 2005, when it found that Carmona had not worked enough hours to be
eligible for renewal.
      Southwest’s attendance policy is governed by the “Agreement Between
Southwest Airlines Co. and The Flight Attendants in the Service of
Southwest Airlines Co. As Represented By the Transport Workers Union of
America, AFL-CIO” (Agreement). Under the Agreement, flight attendants
accrue points for various types of attendance lapses, such as calling in sick,
failing to show up for a flight without advance notice, or failing to report to
scheduling. Different types of lapses result in the accrual of different
numbers of points. For example, calling in sick without a doctor’s note results
in the addition of a half-point to the flight attendant’s record, while a failure
to show up without any kind of prior notice to the airline results in the
addition of two-and-a-half points.
      Points do not remain on the flight attendant’s record permanently. All
points that are more than sixteen months old are automatically “rolled off.” If
a flight attendant does not accrue any points during a calendar quarter, his
running total is reduced by two. Both of these reductions are known as
“record improvement.” Points are not assigned for absences that result from
approved FMLA leave. Also, a flight attendant may use a doctor’s note once
every calendar quarter to remove all points associated with the ailment that
is verified by the note. The flight attendants’ records are kept in pencil,
because they are frequently altered by doctors’ notes, FMLA leave, and pre-
termination reviews.
      When a flight attendant reaches between five and six-and-a-half points,
he is issued a “letter of counsel.” When the flight attendant reaches between
seven and nine points, he is issued a “written warning.” When the flight
attendant reaches between nine-and-a-half and eleven-and-a-half points, he

                                        3
is issued a “final warning.” Termination occurs when a flight attendant
reaches or exceeds twelve points. However, termination cannot occur under
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

                                        4
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,
Southwest sent Carmona a written warning.
      On June 21, 2005, Carmona sprained his thumb at home. He did not
report to work the next day as scheduled, but went to the hospital instead to
have his thumb examined. The hospital released him around midnight of
June 23. However, he did not return to work until June 27, because of the
swelling in his hand. At trial, it was disputed whether or not this absence
was in accordance with the hospital’s instructions. Carmona testified that he
faxed two doctors’ notes to Southwest, one of which said that he should return
to work the morning of June 23, and the other of which said that he would
need to stay home for three or four days. Southwest contended that it had
only received the note saying he could return to work the morning of June 23.
      On June 23, 2005, Southwest sent Carmona his final warning. It
issued him a termination level notice on June 27, which indicated that he had
accumulated thirteen points as of June 26. Under the Agreement between
the flight attendants’ union and Southwest, a flight attendant must be
terminated within seven days of reaching twelve points. Kevin Clark (Clark),
Southwest’s In-Flight Base Manager for Houston, requested an extension of
this deadline, because he was unable to find a time within seven days of June
26 when he, Carmona, and a representative from Carmona’s union could meet
to hold the fact-finding meeting to which Carmona was entitled. At trial,
Carmona testified that his union representative told him that he had to grant
Southwest the extension or it would terminate him immediately. He decided
to grant the extension.
      Before the fact-finding meeting, Clark reviewed Carmona’s attendance
points and concluded that Carmona’s record was incorrect, because Clark

                                      5
calculated that it should have reflected sixteen-and-a-half points, instead of
thirteen. At the meeting, Clark asserted this view. Stacy Martin (Martin),
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

                                        6
agreed that Carmona’s claims were preempted by the RLA and granted
Southwest’s motion. Carmona appealed the grant of summary judgment to
this court, which reversed and remanded on July 16, 2008. Carmona v.
Southwest Airlines Co., 536 F.3d 344 (5th Cir. 2008).
      On August 7, 2008, the district court set the case for jury trial in
October 2008. On September 3, the district court held a hearing on the
remainder of Southwest’s motion for summary judgment and denied the
motion. At this hearing, Carmona stated that he was ready to proceed to trial
immediately and declined the district court’s invitation to engage in
additional discovery. On September 25, 2008, the court reset the trial to
begin on September 29, 2008. The district court stated that this would be
necessary, because its docket was completely full in October and November.
On September 28, Carmona filed a motion to compel Southwest to produce
Rita Ilgen (Ilgen), one of its employees, as a witness, or, alternatively, a
motion for a continuance pending Ilgen’s return from her vacation outside of
subpoena range. Carmona stated that Ilgen was important to his gender
discrimination claim, because Clark, the same supervisor who had
terminated Carmona, had not assigned her points when she was arrested for
driving under the influence. The district court denied this motion on
September 29, stating that it had no room on its docket to delay the trial.
The trial began as scheduled on September 29.
      Southwest moved for judgment as a matter of law at the conclusion of
each party’s case, arguing, inter alia, that Carmona had failed to produce
sufficient evidence for a reasonable jury to find that he was an “individual
with a disability” within the meaning of the ADA, that he was “qualified” to
work as a flight attendant within the meaning of the ADA, or that he had
been discriminated against “because of” his disability. See 42 U.S.C.A. §§

                                        7
12102,1 121122 (2005). The trial court carried Southwest’s motion pending
submission of the case to the jury. On October 2, 2008, the jury returned a
verdict finding for Carmona on his ADA claim and awarding him $80,000 in
lost back wages, but finding against him on his Title VII claim. Following the
verdict, Southwest renewed its motion for judgment as a matter of law, and
Carmona moved for reinstatement. The district court granted Southwest’s
motion on October 20, accepting the jury’s verdict as to Title VII, vacating the
verdict as to the ADA claim, and denying Carmona’s motion for
reinstatement. The district court vacated the verdict on Carmona’s ADA
claim because it found that he had presented insufficient evidence that he
was an “individual with a disability” or that he had been discriminated
against “because of” his disability. The district court rejected Southwest’s
argument that Carmona had failed to produce substantial evidence that he
was “qualified” for his job within the meaning of the ADA. Final judgment




      1
       Section 12102 states in relevant part:
        “As used in this chapter:
           ...
           (2) Disability
             The term ‘disability’ means, with respect to an individual—
                   (A) a physical or mental impairment that substantially limits
               one or more of the major life activities of such individual;
                   (B) a record of such an impairment; or
                   (C) being regarded as having such an impairment.” 42 U.S.C.A.
      § 12102 (2005) (emphasis in original).
      2
        Section 12112 states in relevant part:
      “(a) General Rule
          No covered entity shall discriminate against a qualified individual with a
      disability because of the disability of such individual in regard to job
      application procedures, the hiring, advancement, or discharge of employees,
      employee compensation, job training, and other terms, conditions, and
      privileges of employment.” 42 U.S.C.A. § 12112 (2005) (emphasis in
      original).

                                            8
that he take nothing by his suit was issued on October 20, 2008. Carmona
timely filed notice of appeal on November 14, 2008.
                                 DISCUSSION
      On appeal, Carmona argues that the district court erred in granting
judgment as a matter of law to Southwest on his ADA claim. He argues that,
should we agree that the district court erred in overturning the jury verdict,
we must also find that the district court erred by failing to reinstate him. He
also argues that the district court erred in failing to grant a continuance so
that Ilgen could be compelled to testify. Southwest disputes each of
Carmona’s assignments of error. Furthermore, although Southwest argues
that the district court’s judgment as a matter of law was correct, Southwest
contends that the district court erred in its analysis of this issue by finding
that Carmona had presented sufficient evidence for a reasonable jury to find
that he was “qualified” for his job within the meaning of the ADA.
I. Judgment as a Matter of Law on Carmona’s ADA Claim
      In order to hold Southwest liable for discrimination under the ADA,
Carmona needed to establish (1) that he was an “individual with a disability”
within the meaning of the ADA, (2) that he was a “qualified individual” for
his job, despite his disability, and (3) that he was discharged “because of” his
disability. See 42 U.S.C.A. §§ 12102, 12112 (2005). In order to survive a
motion for judgment as a matter of law, he needed to produce enough
evidence in support of each of these elements to allow a reasonable jury to
find in his favor. See, e.g., EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d
724, 730 (5th Cir. 2007).
      A. Standard of Review
      We review a district court’s ruling on a motion for judgment as a matter
of law de novo. E.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 622

                                        9
(5th Cir. 2009). We examine all of the evidence in the record as a whole,
including evidence that does not support the non-moving party’s case.
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir. 1996).
However, we must view the evidence in the light most favorable to the non-
moving party and draw all reasonable inferences in favor of the non-moving
party. Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003);
Farpella-Crosby, 97 F.3d at 805-06. We do not assess the credibility of the
witnesses or weigh the evidence. Palasota, 342 F.3d at 574.
      Judgment as a matter of law is appropriate where there is no legally
sufficient evidence upon which the jury could find for a party on its claim.
E.g., Hagan, 529 F.3d at 622. There is no legally sufficient evidence upon
which a jury could find for a party where the facts and inferences point so
strongly and overwhelmingly in favor of the moving party that reasonable
jurors could not arrive at a contrary verdict. See, e.g., Burch v. Coca-Cola,
119 F.3d 305, 313 (5th Cir. 1997); Boeing Co. v. Shipman, 411 F.2d 365,
374–75 (5th Cir. 1969) (en banc).
      B. “Individual with a Disability”
      Carmona needed to establish that he was an “individual with a
disability” within the meaning of the ADA in order to qualify for protection
under its provisions. See 42 U.S.C.A. § 12112(a) (2005). In order to establish
that he had a disability, Carmona needed to show that he had:
         “(A) a physical or mental impairment that substantially
      limit[ed] one or more . . . major life activities . . . ;
         (B) a record of such an impairment; or
         (C) [was] regarded as having such an impairment.” See 42
      U.S.C.A. § 12102(2) (2005) (emphasis in original).
The United States Supreme Court adopted a strict interpretation of this
definition in the cases of Sutton v. United Airlines, Inc. and Toyota Motor

                                       10
Manufacturing, Kentucky , Inc. v. Williams. Sutton, 119 S.Ct. 2139 (1999),
superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325,
122 Stat. 3553; Williams, 122 S.Ct. 681 (2002), superseded by statute, ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. In Sutton, the
Court held that the mitigating effects of medications had to be taken into
account in determining whether or not a person was “substantially limited” in
performing a major life activity. Sutton, 119 S.Ct. at 2146. In Williams, the
Court held that the phrase “substantially limited” precluded impairments
that interfered with major life activities in only minor ways from qualifying
as “disabilities” under the ADA. Williams, 122 S.Ct. at 691. Williams also
noted that major life activities are those activities which are of central
importance to daily life, such as walking, seeing, and hearing. Id.
      The district court found that, although Carmona had presented
sufficient evidence that he had an impairment that affected his major life
activities of sleeping, standing, and walking, he had not presented sufficient
evidence that this impairment was substantially limiting. The district court
reached its conclusion in part because it found that our holding in Waldrip v.
General Electric Co., 325 F.3d 652 (5th Cir. 2003), controlled Carmona’s case.
The district court interpreted Waldrip as standing for the proposition that
impairments that cause temporary, intermittent limitations of major life
activities are not substantially limiting as a matter of law.
      Shortly before Carmona’s case went to trial, Congress amended the
ADA in order to correct what it viewed as an overly restrictive interpretation
of the statute’s terms that had been adopted by the Supreme Court in Sutton
and Williams. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553. These amendments would be very favorable to Carmona’s case if


                                       11
they are applicable, because they make it easier for a plaintiff with an
episodic condition like Carmona’s to establish that he is an “individual with a
disability.” See id. Carmona argued unsuccessfully in the district court that
the district court needed to interpret the ADA’s definition of “disability” in
light of the meaning adopted by these amendments.
      On appeal, Carmona again contends that we must interpret the terms
of the ADA in light of the meaning adopted by the ADA Amendments Act of
2008 (ADAAA). He also argues that, even if we decline to interpret the ADA
in light of these amendments, he presented sufficient evidence for a
reasonable jury to find that he was an “individual with a disability” under the
old standards established by Sutton and Williams.
      We begin our analysis by addressing Carmona’s argument that we
should interpret the ADA’s definition of “disability” in light of the recent
amendments. We have already addressed this issue generally. In EEOC v.
Agro Distribution, LLC, we stated that the ADAAA did not apply
retroactively. 555 F.3d 462, 469 n.8 (5th Cir. 2009). Carmona contends in his
brief that he is not arguing for retroactive application of the amendments.
Instead, he argues that Supreme Court precedent establishes that
“[s]ubsequent legislation declaring the intent of an earlier law is entitled to
great weight when it comes to statutory construction,” citing NLRB v. Bell
Aerospace Co., Red Lion Broadcasting Co. v. FCC, and Glidden v. Zdanok for
support. Bell Aerospace Co., 94 S.Ct. 1757 (1974), overruled on other grounds
by NLRB v. Hendricks County Rural Elec. Membership Corp., 102 S.Ct. 216
(1981); Red Lion Broadcasting Co., 89 S.Ct. 1794 (1969); Glidden, 82 S.Ct.
1459 (1962). These cases are not on point. In Bell Aerospace and Red Lion
Broadcasting, the meaning of the statutes at issue before the Supreme Court


                                       12
had not been definitively established by the Court in any of its prior opinions.
See Bell Aerospace Co., 94 S.Ct. at 1768; Red Lion Broadcasting Co., 89 S.Ct.
at 1802. Thus, the “subsequent legislation” at issue in these cases did not
involve a Congressional overturning of settled Supreme Court precedent.
Each case involved a situation in which the Court examined a statute and
established its definitive interpretation for the first time.
      In Glidden, the Eighty-third and Eighty-fifth Congresses had passed
legislation that disagreed with a line of Supreme Court cases that had held
that earlier Congresses had not established the United States Court of
Customs and Patent Appeals or the United States Court of Claims as Article
III courts. Glidden, 82 S.Ct. at 1463. In reviewing the Eighty-third and
Eighty-fifth Congresses’ legislation, the Supreme Court stated that, in
judging for itself whether or not the precedent in question had been correctly
decided, it was proper to give some weight to the later Congresses’
interpretation of the earlier Congresses’ intent in establishing the courts. Id.
at 1468. Ultimately, however, the Supreme Court stated that it was not
bound by the Eighty-third and the Eighty-fifth Congresses’ interpretation,
because the case involved a constitutional question. Id. The presence of a
constitutional question gave the Court the power to invalidate the later
Congresses’ desired interpretation. Therefore, as in Bell Aerospace and Red
Lion Broadcasting, the Court had yet to render a definitive interpretation of
the statute at issue in Glidden when it decided to give some weight to the
later Congresses’ interpretation.
      Carmona’s case is different, because the Supreme Court established the
definitive interpretation of the ADA’s definition of “disability” in Sutton and
Williams. This interpretation was later partially overruled by the ADAAA,


                                        13
but until the ADAAA went into effect, all lower courts remained bound by the
Supreme Court’s settled interpretation. The effective date of the ADAAA was
January 1, 2009. This case was filed, tried, and decided before then.
Therefore, in order for us to depart from the Supreme Court’s settled
interpretation, we would need to find that Congress intended the ADAAA to
apply retroactively. We have already declined to do that. See Agro
Distribution, LLC, 555 F.3d at 469 n.8. Accordingly, we must apply the
Supreme Court’s pre-ADAAA definition of “disability.”
      Carmona only claims to have established that he was an “individual
with a disability” under Prong (A) of the ADA’s definition of “disability.” See
42 U.S.C.A. §§ 12102(2). Specifically, he asserts that he submitted sufficient
evidence for a reasonable jury to find that his psoriasis and his psoriatic
arthritis substantially limited his major life activities of sleeping, walking,
and standing. We do not address Carmona’s arguments that he presented
sufficient evidence that he was substantially limited in the major life
activities of sleeping and standing, because we find that he presented
sufficient evidence that he was substantially limited in the major life activity
of walking.
      Carmona testified that his psoriatic arthritis made him unable to walk
when it flared-up. He stated that, “when that happens I just stay immobile
. . . wherever I am. Or if I do move, I crawl around . . . it’s quite painful.” He
testified that these flare-ups could occur as often as twice in the same week.
This testimony was corroborated by documents entered into evidence by both
Carmona and Southwest that contained medical evaluations of Carmona’s
condition that were made and signed by Carmona’s physician, Dr. Tom Roark
(Roark). In these documents, Roark stated that Carmona needed to be
granted intermittent FMLA leave, because he would be “incapacitated” three

                                        14
to four times every month for three to four days at a time.
      The district court found that this evidence was insufficient to establish
that Carmona was substantially limited in the major life activity of walking
for both factual and legal reasons. Southwest echoes these arguments on
appeal. We will examine the factual reasons first.
      The district court reasoned that Carmona had undermined his own
factual evidence of disability by testifying that (1) he had not declared himself
disabled when he applied to work for Southwest in 1991, (2) his symptoms
were mostly on his skin, (3) his symptoms were eased by medication, (4) he
was able to ride his bike, shop, cook, walk, stand, and perform other tasks,
and (5) after his termination, he went to work for Jet Blue and Dillard’s
without missing any scheduled work. We must view the evidence in the light
most favorable to Carmona while evaluating these arguments. See Palasota,
342 F.3d at 574.
      Arguments (1) and (2) are flawed, because they fail to distinguish
between Carmona’s psoriasis and his psoriatic arthritis. Carmona never
alleged that his psoriasis impaired his ability to walk. Carmona had psoriasis
when he went to work for Southwest in 1991, but he did not develop psoriatic
arthritis until 1998. Therefore, there was no reason for him to disclose that
he was disabled when he applied for his job with Southwest in 1991.
Similarly, when Carmona testified that his symptoms of psoriasis were
“mostly on the skin,” he was describing the symptoms of his psoriasis, not his
psoriatic arthritis.
      As to Argument (3), it does not necessarily follow from the fact that
Carmona’s symptoms were “eased” by taking medication that he was no
longer substantially limited in his ability to walk. The jury rationally could
have concluded that, even with his medication, Carmona was still

                                       15
substantially limited in his ability to walk during the flare-ups of his psoriatic
arthritis. See EEOC v. Phillips Chem. Co., 570 F.3d 606, 620 (5th Cir. 2009)
(“Individuals who take medication or use corrective devices to lessen an
impairment but still remain substantially limited as to one or more major life
activities are still disabled under the ADA.”)
      Argument (4) is the product of selective quotation. In its opinion, the
district court stated that “Mr. Carmona testified he was able to live by
himself without assistance, take care of himself, read, drive, ride his bike,
shop, cook, walk, and stand, most of the time.” Southwest took this a step
further in its brief, omitting “most of the time” and stating that “[Carmona] is
able to drive, read, ride his bike, go shopping, and cook, and lives by himself
and is able to care for himself.” Carmona’s actual testimony was that:
      “ Q. [By Counsel for Southwest] Do you still live by yourself?
      A. [By Carmona] Yes, I do.
      Q. And you were able to take care of yourself, correct?
      A. For the most part, yes.
      Q. You were able to read, to drive, to ride your bike, and shop
      and cook?
      A. On good days, yes, ma’am.
      Q. And most of the time, you’re able to walk and stand, correct?
      A. On good days, yes, ma’am.” (Emphasis added.)
Every one of Carmona’s responses was qualified in a manner that was
consistent with the rest of his testimony. Nothing in this testimony refuted
his claim that his periodic flare-ups of psoriatic arthritis substantially limited
his ability to walk.
      Argument (5), that Carmona’s evidence of disability was undermined by
his admission that he had not missed any work because of his condition while
he was employed by Jet Blue or Dillard’s, has more merit. It seems strange
that an employee who was medically excused from work for up to fifteen days


                                        16
a month at one job would have a perfect attendance record at his next job.
However, Carmona’s jobs at Jet Blue and Dillard’s could reasonably be found
materially different in presently relevant respects from his job at Southwest.
At Dillard’s, Carmona’s job was performed entirely while seated at a desk.
Although Carmona testified that sitting aggravated his condition, he never
contended that his psoriatic arthritis substantially limited his ability to sit.
Thus, the jury reasonably could have concluded that he was able to work this
job during his flare-ups, even if getting to and from the job was extremely
painful. At Jet Blue, Carmona worked part-time as a customer service agent,
which required him to stand behind a desk, meet flights on the jet way, and
check baggage. Although this job required him to stand, it involved minimal
amounts of walking. Jet Blue did not allow him to work this job for more
than twelve hours a week. Under these facts, and mindful of the rule that we
must view them in the light most favorable to Carmona, we find that the jury
rationally could have concluded that Carmona was able to work for Jet Blue
despite being substantially limited in his ability to walk, because he could
tolerate the pain long enough to make it through a part-time day as a
customer service agent.
      The district court and Southwest also argue that Carmona failed to
produce sufficient evidence to establish that he was disabled as a matter of
law, because our case law holds that intermittent flare-ups cannot be
considered substantially limiting. The case cited for this proposition by both
Southwest and the district court is Waldrip. 325 F.3d at 652. However,
Waldrip involved a situation in which the plaintiff’s doctor testified that, “at
most, he occasionally must miss a few days of work when his chronic
pancreatitis flares up.” Id. at 657 (emphasis added). The occasional flare-ups
in Waldrip and the frequent, recurrent flare-ups that Carmona experiences

                                        17
are substantially different situations, though both could be described as
“intermittent.” In Waldrip, the plaintiff’s occasional flare-ups did not
substantially limit any of his major life activities, because they were so few
and far between. See id. Carmona spends anywhere from about one-third to
about one-half of each month unable to walk without excruciating pain. It
would be difficult to argue that this does not substantially limit his ability to
walk.
        The combination of Carmona’s testimony and the medical records
(including Dr. Roark’s opinion as to Carmona’s impaired ability to walk)
submitted with his application for FMLA certification provided sufficient
evidence for a reasonable jury to find that Carmona was an “individual with a
disability” within the meaning of the ADA, because it allowed a reasonable
jury to conclude that he had an impairment, psoriatic arthritis, that
substantially limited his major life activity of walking. The district court
erred in holding otherwise.
        C. “Qualified Individual”
        In addition to establishing that he was an “individual with a disability,”
Carmona needed to establish that he was “qualified” for his job within the
meaning of the ADA. See 42 U.S.C.A. § 12112(a) (2005). The ADA defines a
“Qualified individual with a disability” as:
        “an individual with a disability who, with or without reasonable
        accommodation, can perform the essential functions of the
        employment position that such individual holds or desires. For
        the purposes of this subchapter, consideration shall be given to
        the employer’s judgment as to what functions of a job are
        essential, and if an employer has prepared a written description
        before advertising or interviewing applicants for the job, this
        description shall be considered evidence of the essential functions
        of the job.” 42 U.S.C.A. § 12111(8) (2005).


                                        18
Southwest argues that Carmona could not have established that he was
qualified for his job because precedent from our Circuit holds that regular
attendance is a necessary qualification for most jobs, and Carmona’s
disability prevented him from attending his job regularly. See generally
Smith v. Lattimore Materials Co., 287 F. Supp. 2d 667, 672 (E.D. Tex.), aff’d,
77 F. App’x 729 (5th Cir. 2003) (“Reporting on time and regular attendance is
an essential function of any job.”).
      The district court disagreed with Southwest, finding that the evidence
introduced at trial was sufficient to allow a reasonable jury to conclude that
flight attendants’ schedules at Southwest were extremely flexible. Therefore,
the district court reasoned that, while regular attendance might be a
requirement of most jobs, it was not a requirement of Carmona’s position at
Southwest.
      We are sympathetic to the argument that Carmona was not qualified to
be a flight attendant at Southwest because his disability prevented him from
showing up for work on scheduled days. Although the evidence showed that
Southwest’s flight attendants have nearly unlimited discretion in
determining when and how often they want to work, it did not show that they
may skip the days they have scheduled at will.
      However, we do not think that Southwest can establish that it was
unreasonable for the jury to find that Carmona was qualified for his job.
There is no dispute that Carmona was able to perform the essential functions
of his job as a flight attendant when he showed up to work. The dispute is
over whether or not his irregular attendance made him unqualified. Even if
we assume that attendance was an essential function of Carmona’s job,3

      3
       We note that there is some basis on this record to contest this assumption.
Southwest’s decision to grant Carmona intermittent FMLA leave, despite the fact that he

                                           19
Southwest’s own measure of whether or not a flight attendant’s attendance
was adequate was its attendance policy, which was extremely lenient.



was frequently unable to give Southwest notice of his absences in advance, and without
transferring him to a different position in the company, suggests that attendance was not
in fact an essential requirement of his job. Leave under the FMLA can either be
intermittent or continuous. See 29 U.S.C.A. § 2612 (West 2009). Employees generally
become entitled to FMLA leave when they are no longer able to perform the essential
functions of their jobs. See id. at § 2612(a)(1). However, an employee is not entitled to
intermittent leave if he cannot perform the essential functions of his job when he is present.
Hatchett v. Philander Smith College, 251 F.3d 670, 676 (8th Cir. 2001). Because the FMLA
is designed to excuse employees from work, an awkward situation arises, legally speaking,
when an employee seeks intermittent leave from a job where attendance is essential. On
the one hand, the FMLA is designed to excuse attendance requirements. On the other
hand, if the employee cannot attend a job where his attendance is vital, he cannot perform
one of the essential functions of his job, and a heavy burden is placed on his employer if it
must grant him intermittent leave.
        This tension led Congress to soften the FMLA’s impact where employees seek
intermittent leave. The language of the statute and the regulations promulgated by the
Secretary of Labor provide that an employer may transfer an employee who seeks
intermittent leave from a job where attendance is vital to an equivalent position where the
employee’s periodic absences will be less burdensome. 29 U.S.C.A. § 2612(b)(2); 29 C.F.R. §
825.204 (1997). This tension has also caused courts to interpret the FMLA narrowly where
an employee requests the ability to take intermittent leave without notice. The Seventh
and Eighth Circuits have stated that “the FMLA does not provide an employee . . . with a
right to ‘unscheduled and unpredictable, but cumulatively substantial, absences’ or a right
to ‘take unscheduled leave at a moment’s notice for the rest of her career.’” Spangler v. Fed.
Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002) (quoting Collins v. NTN-
Bower Corp., 272 F.3d 1006, 1007–08 (7th Cir. 2001). See also S. Elizabeth Wilborn
Malloy, The Interaction of the ADA, the FMLA, and Workers’ Compensation: Why Can’t We
Be Friends?, 41 Brandeis L.J. 821, 837 (2003). At least one district court in this circuit has
also applied this rule. Henson v. Bell Helicopter Textron, Inc., No. Civ.A.4:01-CV-1024-Y,
2004 WL 238063, at *11 (N.D. Tex. Feb. 6, 2004).
        Therefore, while the FMLA can excuse an employee from his employer’s ordinary
attendance requirements, it does not do so where the employee requests the right to take
intermittent leave without notice indefinitely. The FMLA also does not prevent the
employee from being transferred to a different job with equivalent pay and benefits where
his periodic absences will do less damage to the business. Carmona requested the ability to
take intermittent leave without notice indefinitely. Southwest not only granted him this
leave for seven years, it also decided not to transfer him to another position. Accordingly, it
arguably would have been reasonable for the jury to conclude from Southwest’s lack of
resistance that attendance was not in fact an essential requirement of his job. However,
we need not go this far in our analysis, as Southwest cannot prevail even if we assume that
attendance was an essential requirement of Carmona’s job.

                                              20
Carmona managed to stay within the bounds of this policy for seven years,
despite his irregular attendance, and despite his disability. Therefore, we do
not think that his disability made him unqualified for his job, even though it
often caused him to miss work.
       Southwest also contends that Carmona’s violation of the attendance
policy in June 2005 made him unqualified for his job. We disagree with this
contention as well. The fact that Carmona’s supervisors determined that he
had exceeded twelve points was evidence that his attendance was inadequate
and thus that he was unqualified for his job. But, as we discuss in detail
below, Carmona introduced evidence that other flight attendants who had
also exceeded twelve points were not discharged. Based on this evidence, the
jury reasonably could have concluded that Carmona’s attendance, although
inadequate under Southwest’s written policy, would have been deemed
adequate under the unwritten policy that was actually in effect, had he not
been discriminated against for being disabled. Therefore, even if the jury
concluded that Carmona had violated Southwest’s written attendance policy,
it could have reasonably found that he was nevertheless qualified for his job
under the unwritten policy that was actually in effect.
       Accordingly, we hold that the jury reasonably could have found 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
an employer has produced sufficient evidence to support a nondiscriminatory
explanation for its decision to terminate an employee, the employee may

                                      21
“establish that he was the victim of intentional discrimination ‘by showing
that the employer’s proffered explanation is unworthy of credence.’” Reeves v.
Sanderson Plumbing Prod., Inc., 120 S.Ct. 2097, 2106 (2000) (quoting Texas
Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089, 1095 (1981)). “[I]t is
permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer’s explanation.” Reeves, 120 S.Ct. at 2108
(emphasis in original).
      Southwest asserted at trial that it had fired Carmona for violating its
attendance policy. Carmona introduced evidence in the form of documents
and testimony that five other flight attendants had reached or exceeded
twelve attendance points without being terminated. Southwest admitted that
all five of these flight attendants were female, but their identities were not
disclosed. The district court admitted portions of their attendance records in
Plaintiff’s Exhibits 4 through 9. Plaintiff’s Exhibits 7 and 8 were taken from
the same employee’s record. Because the names of these employees were
withheld, we will refer to each by the number of the exhibit that contained
her employment records.
      Southwest argues on appeal, as it argued at trial, that none of these
employees’ situations were similar to Carmona’s. Clark testified that
Employees 4, 5, and 9 were not terminated, even though they reached or
exceeded twelve attendance points, because they were not timely issued one
or more of the warning letters that had to be issued before termination could
occur under the Agreement between Southwest and its flight attendants.
However, as Carmona’s attorney noted at trial, and as Carmona argues now,
the memoranda found in Plaintiff’s Exhibits 4, 5, and 9 all state that these
employees “were issued all letters of discipline timely.” (Emphasis added.)
Clark attempted to resolve this apparent discrepancy by testifying that these

                                        22
statements indicated that the employees in question had been issued timely
all letters of discipline up to, but not including, their termination letters.
While this explanation may be plausible, the jury was not required to believe
it. The explicit, unqualified statement contained in each memorandum that
all letters of discipline had been issued timely provided grounds for a
reasonable jury to reject Clark’s testimony that the statements were
implicitly qualified. In conducting a review for the sufficiency of the evidence,
we accept all credibility choices made by the jury. Goodman v. Harris
County, 571 F.3d 388, 398 (5th Cir. 2009), pet. denied, ___ S.Ct. ___, 2010 WL
154980, ___ S.Ct. ___, 2010 WL 154983 (2010). Accordingly, although the
issue is indeed a close one, we ultimately conclude that Carmona’s jury
reasonably could have found that Southwest had allowed other flight
attendants to exceed twelve points without being terminated.
      Southwest also argues that the female employees whose records were
introduced in Plaintiff’s Exhibits 4 through 9 were not proper comparators for
the purpose of establishing discrimination, because Carmona did not offer any
proof that these women were individuals without disabilities. The logic
behind this argument is that if these women were also disabled, but allowed
to keep their jobs, then no reasonable jury could have inferred that Carmona’s
disability was a motivating factor in his discharge. Carmona argues that the
jury was entitled to assume Employees 4 through 9 were not disabled,
because no evidence suggested that they were disabled, and most individuals
are not disabled.
      We agree that Southwest’s argument on this issue is without merit. It
is generally recognized that a party has the burden of proof on an issue when
the facts with regard to the issue lie peculiarly within the knowledge of that
party. McCormick on Evidence 950 (3d ed., Edward W. Cleary ed.,1984).

                                        23
Another relevant principle is that the risk of failure of proof may properly fall
upon the party who contends that the more unusual event has occurred. Id.
In this case, Southwest withheld all information about Employees 4 through
9 except for their sex. There is no doubt that most people are not individuals
with disabilities. Therefore, if Southwest knew that one or more of
Employees 4 through 9 was disabled, it bore the burden of coming forward
with that information at trial. Indeed, it seems strange that Southwest
would not have introduced evidence that one or more of these employees was
disabled, if it were true, given the detrimental effect this information would
have had on Carmona’s case. Therefore, we find that the jury was entitled to
assume, based on the absence of proof to the contrary and the probabilities of
the situation, that the employees represented by Exhibits 4 through 9 were
not disabled.
      Moreover, some of Carmona’s trial evidence supported an inference that
his disability-related absences irritated his supervisors. Clark characterized
Carmona’s attendance record between 2003 and 2005 as “one of the worst
ones that we had,” noting that “roughly 40 percent of the time that’s
represented on the calendar is sick time.” However, Clark admitted that the
vast majority of these absences could not be counted against Carmona
because of his intermittent FMLA leave and his doctors’ notes. Michael
Mankin, Clark’s superior, testified that Carmona’s attendance was
“extremely poor.” All things considered, a reasonable jury could properly
infer that, when Carmona’s record eventually indicated that he had exceeded
twelve points, his supervisors jumped at the chance to terminate him and did
everything they could to ensure that his points would still exceed twelve after
his pre-termination review, even though leniency had been granted to
similarly-situated employees who were not disabled. Though, as stated, the

                                       24
issue is a close one, we ultimately conclude that a reasonable jury could have
found Southwest’s proffered explanation for Carmona’s discharge was false
and that the true reason was his disability.
      E. Conclusion
      A reasonable jury could have concluded, based on the evidence in this
case, that Carmona was an “individual with a disability” within the meaning
of the ADA, that he was “qualified” for his position within the meaning of the
ADA, and that he was terminated “because of” his disability. See 42 U.S.C.A.
§§ 12102, 12111, 12112 (2005). Therefore, we hold that the district court
erred in granting judgment as a matter of law to Southwest.
II. Reinstatement
      Carmona argues that if the district court erred in granting judgment as
a matter of law to Southwest, then it also erred in denying his motion for
reinstatement. We review a district court’s determination of whether or not
to grant reinstatement for abuse of discretion. Brunneman v. Terra Int’l, Inc.,
975 F.2d 175, 180 (5th Cir. 1992).
      The ADA adopts the remedies set forth in Title VII. See 42 U.S.C. §
12117 (2005) (“The powers, remedies, and procedures set forth in sections
2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9 of this title shall be the
powers, remedies and procedures this subchapter provides to . . . any person
alleging discrimination on the basis of disability in violation of any provision
of this chapter . . . .”). Title VII states in part that, “[i]f the court finds that
the respondent has intentionally engaged in . . . an unlawful employment
practice charged in the complaint, the court may . . . order such affirmative
action as may be appropriate, which may include, but is not limited to,
reinstatement . . . .” 42 U.S.C. § 2000e–5(g)(1) (2003). We have held that the
decision of whether or not to grant reinstatement is within the discretion of

                                          25
the district court and that a court may properly consider factors such as the
availability of positions, the plaintiff’s current employment status, and the
impact reinstatement would have on employee relations in making its
decision. Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254-55
(5th Cir. 1995).
       Southwest argues that the district court did not make the decision to
deny Carmona’s motion for reinstatement independently of its decision to
grant judgment as a matter of law to Southwest. Southwest notes that it did
not even have time to respond to Carmona’s motion for reinstatement before
the district court ruled on it. Therefore, Southwest argues that we should
remand the issue of reinstatement to the district court if we determine that
the district court erred in granting judgment as a matter of law to Southwest,
so that the district court may fully examine the issue and the relevant factors.
       The district court addressed the issue of reinstatement in a single
sentence: “After consideration of the Defendant’s motion and renewed motion
for judgment as a matter of law and in light of the evidence adduced at trial,
the Court declines to exercise its equitable jurisdiction to reinstate Mr.
Carmona.” The district court made no factual findings regarding the
feasibility of reinstating Carmona that could support its order denying
reinstatement independently of its decision to grant judgment as a matter of
law to Southwest. We agree with Southwest that the district court’s order
denying reinstatement should be vacated and this issue should be remanded
to the district court for reconsideration in light of our holding that it was
error to grant Southwest’s motion for judgment as a matter of law.4


       4
         Carmona’s final assignment of error is that the district court erred in refusing to
grant him a continuance so that he could obtain the testimony of Ilgen. We decline to reach
this issue, because we hold that the district court erred in granting Southwest’s motion for

                                            26
                               CONCLUSION
      For the foregoing reasons, we reverse the portion of the district court’s
order granting Southwest’s motion for judgment as a matter of law, vacate
the portion of the district court’s order denying Carmona’s motion for
reinstatement, and remand the case with instructions that judgment be
entered for Carmona in accordance with the jury’s verdict and that Carmona’s
motion for reinstatement be reconsidered in light of our holding.
          REVERSED in part, VACATED in part, and REMANDED.




judgment as a matter of law.

                                       27
