                     REVISED AUGUST 14, 2008

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

                                                                        FILED
                                                                       July 16, 2008
                                 No. 07-51071
                                                               Charles R. Fulbruge III
                                                                       Clerk
EDWARD CARMONA

                                           Plaintiff - Appellant
v.

SOUTHWEST AIRLINES COMPANY

                                           Defendant - Appellee



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


Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
      Plaintiff-Appellant Edward Carmona sued his employer of fourteen years,
Defendant-Appellee Southwest Airlines Company (“Southwest”), alleging sex
discrimination, disability discrimination, and failure to accommodate. The
district court dismissed Carmona’s suit for lack of subject matter jurisdiction,
declining to reach the merits of his claims. As we disagree with the district
court’s conclusion that it did not have jurisdiction to hear Carmona’s suit, we
reverse and remand for consideration of the substance of Carmona’s
discrimination allegations.
                                 No. 07-51071

                      I. FACTS AND PROCEEDINGS
      Carmona worked as a flight attendant for Southwest from 1991 to 2005.
The terms and conditions of Carmona’s employment were governed by a
collective bargaining agreement (the “CBA”) between Southwest and the
Transport Workers Union of America, AFL-CIO, Local No. 556 (the “Union”).
The CBA sets forth rules for leaves of absence, medical and sick leave,
attendance, discipline and termination, and grievance procedures. Under the
CBA’s attendance provisions, any employee who exceeds twelve attendance
“points” within a rolling sixteen-month period is subject to termination.
      From the beginning of his tenure with Southwest, Carmona suffered from
psoriasis, a skin condition, and from psoriatic arthritis. These illnesses caused
him to take leave under the Family Medical Leave Act (the “FMLA”) roughly two
or three times each month for three or four days at a time. In 2005, Carmona
took additional absences “for illness,” which Southwest did not excuse under the
FMLA. For these unexcused absences, Carmona accumulated points pursuant
to Southwest’s attendance policy, and was disciplined by Southwest as a result:
When Carmona received his seventh attendance point on May 1, 2005,
Southwest issued him a “letter of counseling”; when Carmona accumulated his
ninth point on May 10, 2005, Southwest issued him a written warning.
      On June 22, 2005, Carmona injured his thumb at home. He called Carolyn
Jernigan, a Houston Inflight Assistant Base Manager with Southwest, to report
that he was going to the hospital and would be unable to fly that day. Carmona
also requested a medical leave of absence. As mandated by the CBA, Jernigan
instructed him to send a written request to Southwest together with supporting
documentation from the hospital.
      As a result of his thumb injury, Carmona missed four work days (June 22,
23, 25, and 26, 2005). These absences moved his absence point total above
twelve points, the maximum allowable under the CBA. After returning to work


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                                  No. 07-51071

on June 27, 2005, Carmona faxed a doctor’s note to Southwest, which indicated
that he was cleared to return to work as of June 25, 2005; but because Carmona
had already used a doctor’s note for an earlier absence that quarter, provisions
of the CBA prevented this note from excusing his absences between June 22 and
June 26, inclusive.
      By June 26, 2005, Carmona had exceeded the maximum of twelve points
permitted under the CBA, making him subject to immediate termination from
employment. As was Southwest’s practice, however, its Houston Inflight Base
Manager, Kevin Clark, held a fact-finding meeting with Carmona, another of
Carmona’s supervisors, and a representative of the Union to review Carmona’s
point total. Clark determined that Carmona had actually accumulated even
more points than the twelve originally calculated.         The following month,
Southwest terminated Carmona’s employment for excessive absenteeism.
      Days later, Carmona followed the grievance procedures in the CBA and
provisions in the Railway Labor Act (the “RLA”) by appealing his termination
as being in violation of the CBA. At the final level of review, Carmona’s
grievance was heard by a four-member panel of the Board of Adjustment, which,
in March 2006, upheld Carmona’s termination.
      In September 2005, Carmona filed a charge of discrimination with the
Equal Employment Opportunity Commission (the “EEOC”), alleging sex and
disability discrimination. The EEOC dismissed Carmona’s claims, finding no
evidence of sex discrimination and concluding that Carmona was not disabled
within the meaning of the Americans with Disabilities Act (the “ADA”).
      The EEOC issued Carmona a “right to sue” letter, after which he filed the
instant action, alleging sex discrimination under Title VII of the Civil Rights Act
(“Title VII”), disability discrimination and failure to accommodate under the




                                        3
                                       No. 07-51071
ADA, and retaliation in violation of the FMLA.1 Specifically, Carmona asserted
that Southwest: (1) assessed him attendance points and denied him medical
leave in situations under which similarly situated female flight attendants were
not assessed points or were granted medical leave, and that similarly situated
female employees have not been terminated for excessive absenteeism even after
accumulating twelve points; and (2) discriminated against him because of his
psoriasis and psoriatic arthritis and refused him medical accommodation when
it assessed him points for his illness-related absences prior to his thumb injury.
       In September 2006, Southwest filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) and (b)(6), contending that the court
lacked subject matter jurisdiction because Carmona’s claims were precluded by
the RLA.2 In November 2006, the district court denied the motion without
prejudice to filing a motion for summary judgment. In May 2007, Southwest
filed a motion for summary judgment, reasserting its contention that Carmona’s
claims were precluded by the RLA and further asserting that, if they were not
precluded, Carmona’s claims were substantively without merit. The district
court granted Southwest’s motion for summary judgment after concluding that
Carmona’s claims were precluded by the RLA and dismissed Carmona’s action
for lack of subject matter jurisdiction. Consequently, the court did not reach the
merits of Carmona’s claims. Carmona timely filed a notice of appeal.




       1
           On appeal, Carmona has abandoned his FMLA retaliation claim.
       2
         As Carmona’s claims are based on federal statutes, the district court correctly
characterized Southwest’s challenge to the court’s jurisdiction as questioning whether the RLA
precludes, rather than preempts, Carmona’s suit. See Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246, 259 n.6 (1994) (citing Atchison, Topeka & Sante Fe Ry. Co. v. Buell, 480 U.S. 557,
559 (1987)).

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                                          No. 07-51071
                              II. STANDARD OF REVIEW
       We review a district court’s preclusion-based grant of summary judgment
de novo.3 “Because the district court dismissed the complaint before reaching
the merits, we confine our independent review to the jurisdictional issue.”4
                                         III. ANALYSIS
       Carmona has waived his right to appeal the district court’s dismissal of his
ADA claim of failure to accommodate.5 As discussed below, however, because
Carmona’s claims alleging (1) Title VII gender discrimination and (2) ADA
disability discrimination cannot be resolved through an “interpretation” of the
CBA, these claims are not precluded by the RLA.
A. Applicable Law
       The RLA classifies CBA-related disputes as either “major” or “minor.”6 In
1972, the Supreme Court held that minor disputes are exclusively within the
jurisdiction of RLA adjustment boards.7                  Six years later, the Court re-
emphasized that “Congress considered it essential to keep these so-called ‘minor’



       3
           See Taggart v. Trans World Airlines, Inc., 40 F.3d 269, 272 (8th Cir. 1994).
       4
       Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999) (citing Vestron, Inc.
v. Home Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir. 1988)).
       5
          Carmona’s arguments against RLA preclusion are largely confined to his sex and
disability discrimination claims. Carmona did not discuss failure to accommodate in any of his
filings in the district court or in the first of his two briefs filed on appeal. He only raises the
argument that his claim of failure to accommodate is not precluded by the RLA in his reply
brief, after Southwest argued in its brief that Carmona had waived this argument. As we do
not generally consider issues raised for the first time in a reply brief, we hold that Carmona
has waived his right to appeal the district court’s dismissal of his failure-to-accommodate
claim. See, e.g., United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
       6
           Norris, 512 U.S. at 252-53.
       7
        Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322 (1972) (“Thus, the
notion that the grievance and arbitration procedures provided for minor disputes in the
Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was
never good history and is no longer good law.”).

                                                5
                                         No. 07-51071
disputes within the Adjustment Board and out of the courts.”8 The Court
defined minor disputes as disputes growing “‘out of grievances or out of the
interpretation or application of agreements covering rates of pay, rules, or
working conditions.’”9 The “distinguishing feature” of a minor dispute “is that
the dispute may be conclusively resolved by interpreting the existing [collective
bargaining] agreement.”10 To state that a claim can be “‘conclusively resolved’”
by interpreting a CBA “is another way of saying that the dispute does not
involve rights that exist independent of the CBA.”11
       Minor disputes “resist a rigid definition.”12 If Carmona’s claims can be
resolved through an interpretation of the CBA, i.e., if the rights at issue do not
exist independent of the CBA, his suit would qualify as a minor dispute under
the RLA, and would be precluded from judicial review.
B. Merits
       The district court concluded that Carmona’s allegations that Southwest
did not assess negative attendance points under similar circumstances when
flight attendants (1) were female, (2) were not disabled, or (3) had not requested
intermittent FMLA leave, required interpretation of the CBA. As such, ruled
the court, it qualified as a minor dispute and was precluded by the RLA.
       On appeal, Southwest echoes the district court’s logic, insisting that
Carmona’s claims are “inextricably intertwined” with the CBA. According to
Southwest, interpretation of the CBA’s attendance policy, procedures for



       8
           Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978).
       9
           Norris, 512 U.S. at 252-53 (quoting 45 U.S.C. § 151a) (emphasis added).
       10
        Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305 (1989); see also
Anderson v. Am. Airlines, Inc., 2 F.3d 590, 595 (5th Cir. 1993) (citing id.).
       11
            Norris, 512 U.S. at 265.
       12
            Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999).

                                                6
                                        No. 07-51071
obtaining medical and sick leave, and discipline and termination procedures is
required to evaluate whether (1) Carmona has established a prima facie case, (2)
Southwest proffered a non-discriminatory reason for firing Carmona, and (3)
Southwest’s stated rationale for terminating his employment was a pretext for
discrimination. Southwest asserts that Carmona’s suit is a minor dispute
because it can be resolved only through interpretation of the CBA.
      Carmona, in contrast, insists that the district court erred in ruling that his
claims require interpretation of the CBA and thus should be classified as a
minor dispute under the RLA. Carmona acknowledges that it is necessary to
refer to the CBA, particularly Southwest’s attendance rules, method for
calculating attendance points, and procedures for obtaining medical and sick
leave, to resolve his claims; but he asserts that his claims create no dispute over
the meaning of any provision of the CBA. Stated differently, he insists that no
interpretation of the CBA is required, only adjudication of the factual question
whether Southwest was motivated by sex or his alleged disability (or both) in
terminating his employment. According to Carmona, Southwest is attempting
to “hide behind” RLA preclusion by equating his “straightforward” references to
the CBA’s terms with CBA interpretation.
      As a preliminary matter before addressing whether Carmona’s claims
require CBA interpretation, we note that a CBA is not merely a simple, written
contract. Although Carmona attempts to narrow the scope of how a CBA is
defined to bolster his argument that his suit does not require CBA
interpretation, a CBA encompasses more than its explicit, written provisions.
The Supreme Court has held that a CBA includes not only written terms, but a
broad range of implied, unwritten terms “arising from ‘practice, usage and
custom.’”13 A CBA may encompass, for example,“a norm that the parties have



      13
           Norris, 512 U.S. at 264 n.10 (quoting Conrail, 491 U.S. at 311-12).

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                                         No. 07-51071
created but have omitted from the CBA’s explicit language”14 or a working
“‘condition [that] is satisfactorily tolerable to both sides’” and so “‘is often omitted
from the agreement . . . .’”15 According to the Court, a CBA is “more than a
contract; it is a generalized code to govern a myriad of cases which the draftsmen
cannot wholly anticipate.”16             The CBA “covers the whole employment
relationship.”17 Inasmuch as a CBA incorporates by reference more than just the
content of its black-letter terminology, both disputes over explicit written
provisions and disputes over implicit, non-written provisions of the agreement
may qualify as minor and be precluded by the RLA.18
      Even so, for the federal courts to have subject matter jurisdiction over
claims like Carmona’s “do[es] not require that the CBA be irrelevant to the
dispute; either party may still use the CBA to support the credibility of its
claims.”19     Southwest’s contention that Carmona’s claims necessitate CBA
interpretation fails to recognize the distinction between reference to the CBA
and reliance on it. As noted, the “distinguishing feature” of a minor dispute
under the RLA is that “the dispute may be conclusively resolved by interpreting”
the CBA.20
      As provisions of the CBA are relevant to, but not dispositive of, the
resolution of Carmona’s claims, his claims do not constitute a minor dispute

      14
           Id. at 264.
      15
         Id. at 264 n.10 (quoting Detroit & Toledo Shore Line R.R. Co. v. United Transp.
Union, 396 U.S. 142, 154-55 (1969)).
      16
           United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960).
      17
           Id. at 579.
      18
           Norris, 512 U.S. at 264-65.
      19
           Jones v. Roadway Express, Inc., 931 F.2d 1086, 1090 (5th Cir. 1991).
      20
           Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305 (1989) (emphasis
added).

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                                         No. 07-51071
under the RLA. Even though a court would have to refer to the CBA to consider
fully each of the alleged acts of disparate treatment, there is no disagreement
about how to interpret these provisions of the CBA that detail Southwest’s
procedures for assessing attendance, leave, discipline, and termination.
Carmona’s factual allegations that unexcused absences by female flight
attendants went unpunished, that remarks of his supervisors regarding male
employees were discriminatory, and that his chronic illnesses were the real
reason he was fired, do not bring the meaning of any CBA provisions into
dispute. He alleges that CBA procedures were applied in a discriminatory
manner, not that CBA procedures were fundamentally discriminatory. Thus,
consideration of the CBA as applied to Title VII and the ADA — not
interpretation of the CBA itself — is what is required to resolve Carmona’s
claims.21
       Southwest cites Reece v. Houston Lighting & Power Co., in which we held
that a state claim of race discrimination was preempted by § 301 of the Labor
Management Relations Act, as support for the proposition that Carmona’s
references to the CBA necessitate CBA interpretation.22 In reaching the decision
in Reece, however, we noted that the plaintiff’s claim “turn[ed] on questions of
promotion, seniority, and assignment to training programs, all of which are
provided for in the CBA,” and that the plaintiff directly challenged his

       21
          See Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 668 (7th Cir. 2001) (“A claim brought
under an independent federal statute is precluded by the RLA only if it can be dispositively
resolved through an interpretation of a CBA. This occurs only when a provision of the
collective bargaining agreement is the subject of the dispute or the dispute is substantially
dependent upon an analysis of the terms of a collective bargaining agreement. Therefore, an
employer cannot ensure the preclusion of a plaintiff’s claim merely by asserting certain
CBA-based defenses to what is essentially a non-CBA-based claim, or by arguing that the
action challenged by the plaintiff is arguably justified by the terms of a CBA. Nor will a claim
be precluded merely because certain provisions of the CBA must be examined and weighed as
a relevant but non-dispositive factor in deciding a claim or a defense.” (internal quotations and
citations omitted)).
       22
            79 F.3d 485, 487-88 (5th Cir. 1996).

                                                   9
                                       No. 07-51071
employer’s rights under the CBA, all of which required interpretation of the
CBA.23 Southwest has not identified any CBA provision in dispute or in need of
interpretation to adjudicate Carmona’s claims, and neither have we. Carmona’s
claims do not turn on the CBA, so Reece is inapposite to Southwest’s contention
that the instant matter requires CBA interpretation.
       In addition, the realization that Carmona is seeking to enforce his federal
statutory rights under Title VII and the ADA, not his contractual rights
embodied in the CBA, bolsters the contention that Carmona’s claims do not
require CBA interpretation. Other circuits have held that claims grounded in
federal statutory rights are generally not precluded by the RLA. The Ninth
Circuit, for example, has held that anti-discrimination claims brought under
Title VII and the ADA are independent of the CBA, so they do not qualify as
minor disputes.24 Similarly, the First and Eighth circuits have held that ADA
rights are independent of the RLA and are therefore outside the ambit of
disputes classified as minor.25 Even though Carmona’s action involves statutory
rights that exist independent of the CBA, we do not cite these decisions of other


       23
            Id. at 487.
       24
          Saridakis v. United Airlines, 166 F.3d 1272, 1277 (9th Cir. 1999) (holding that ADA
claim is independent of CBA and thus minor dispute); Felt v. Atchison, Topeka & Sante Fe Ry.
Co., 60 F.3d 1416, 1419-20 (9th Cir. 1995) (holding that Title VII claim is independent of CBA
and thus minor dispute).
       25
           Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171 (1st Cir. 1998) (holding that “the
present controversy concerns the plaintiff’s rights under state and federal statutes which exist
independently of the collective bargaining agreement and do not require interpretation of that
agreement”); Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1115 (8th Cir. 1995) (holding that
plaintiff’s ADA claim is not preempted by RLA because plaintiff “seeks to enforce a federal
statutory right, not a contractual right embodied by the collective bargaining agreement”); cf.
Brown, 254 F.3d at 667-68 (“It remains true as a general rule that the RLA will not bar a
plaintiff from bringing a claim under an independent federal statute in court (because such
claims are generally independent of the CBA and will be adjudicated under non-CBA
standards). However, this rule no longer applies if the federal claim asserted by the plaintiff
depends for its resolution on the interpretation of a CBA. Such claims are not ‘independent’
of the CBA regardless of their source, and are therefore precluded by the RLA.”).

                                              10
                                      No. 07-51071
circuits to suggest that the source of the rights asserted in a union member’s
claims determines absolutely whether his action is precluded by the RLA. We
are persuaded, however, that the fact that Carmona’s claims allege Title VII and
ADA violations, as opposed to violations of the CBA itself, further evidences that
the instant suit does not require CBA interpretation.
       We recognize that compelling federal policies encourage the arbitration,
not the litigation, of CBA-related disputes between employers and their
employees. “Congress’ purpose in passing the RLA was to promote stability in
labor-management relations by providing a comprehensive framework for
resolving labor disputes.”26 Notwithstanding this preference for arbitration, we
are convinced that Carmona’s claims do not require interpretation of the CBA,
only reference to it. As Carmona’s suit does not advance claims that constitute
a minor dispute, it is not precluded from judicial review by the RLA.
                                 IV. CONCLUSION
       We hold that because Carmona’s allegations of Title VII sex discrimination
and ADA disability discrimination do not require interpretation of the CBA, they
do not constitute a minor dispute precluded by the RLA. Consequently, the
district court erred in holding that it did not have subject matter jurisdiction to
hear Carmona’s claims. We REVERSE and REMAND to the district court for
consideration of the merits of Carmona’s claims.




       26
        Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (citing Atchison, Topeka
& Sante Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987)).

                                            11
