Brigham v. Frontier Airlines, Inc.

57 F.4th 1194

Rebecca BRIGHAM, Plaintiff - Appellant,

v.FRONTIER AIRLINES, INC., Defendant - Appellee.

No. 21-1335

United States Court of Appeals, Tenth Circuit.

FILED January 24, 2023

John R. Crone, Law Office of John R. Crone, L.L.C., Denver, Colorado, for Plaintiff-Appellant.

David Charles Gartenberg (Danielle L. Kitson and Carolyn Bailey Theis with him on the briefs), Littler Mendelson, L.L.P., Denver, Colorado, for Defendant-Appellee.

Before BACHARACH, MCHUGH, and MORITZ, Circuit Judges.

BACHARACH, Circuit Judge.

This case involves claims brought by Rebecca Brigham, who worked as a flight attendant for Frontier Airlines. Ms. Brigham was a recovering alcoholic who wanted to avoid overnight layovers because they tempted her to drink. To minimize overnight layovers, Ms. Brigham asked Frontier (1) to excuse her from the airline's bidding system for flight schedules or (2) to reassign her to the General Office. Frontier rejected both requests.

Unable to bypass the bidding system or move to the General Office, Ms. Brigham missed too many assigned flights and Frontier fired her. The firing led Ms. Brigham to sue under the Americans with Disabilities Act.

We address two main issues:

1. Relief from Frontier's Bidding System. The first issue involves Ms. Brigham's request to bypass the bidding system for flight schedules. The bidding system was required under Frontier's collective bargaining agreement with the flight attendants’ union. Under the collective bargaining agreement, Frontier assigned initial schedules through a bidding system. After bidding, all active flight attendants had a limited opportunity to swap from a pool of flights that would otherwise go to flight attendants serving in reserve. Ms. Brigham asked Frontier to excuse her from the bidding system, allowing her to pick her flights from the pool without the limitations placed on swaps.

Would this accommodation have been plausibly reasonable even though it would have violated the collective bargaining agreement and freed Ms. Brigham from limitations imposed on every other active flight attendant? We answer no , concluding that this accommodation would not have been plausibly reasonable.

2. Reassignment to the General Office. Ms. Brigham also requested temporary reassignment to the General Office. Reassignment might have been necessary if a vacancy existed. A position would be considered vacant only if it had been reasonably available to similarly situated non-disabled employees. But the General Office was available for reassignment only if an employee had been injured on the job, and Ms. Brigham hadn't suffered an injury on the job.

Was the General Office vacant for Ms. Brigham? We answer no because Ms. Brigham wasn't similarly situated to the employees eligible for reassignment to the General Office.

1. Frontier fired Ms. Brigham after she missed too many days.

As a Frontier flight attendant, Ms. Brigham needed to comply with a collective bargaining agreement and an attendance policy.

Under the collective bargaining agreement, each active flight attendant had to bid on flights. Once flight attendants submitted their bids, Frontier assigned flights based on seniority. After bidding closed, Frontier assigned the initial schedules and allowed flight attendants to swap for unassigned flights through a system called "Open Time."¹ After the swaps, however, each full-time flight attendant had to end up with at least 60 monthly hours.

Active flight attendants also needed to comply with Frontier's attendance policy. Under this policy, Frontier treated a sick call as an "occurrence" and a no-show as two "occurrences." Employees could be fired if they had at least eight occurrences within a twelve-month period.

Ms. Brigham accrued at least eight occurrences within a twelve-month period, and Frontier fired her. She complains that many of the occurrences resulted from her inability to bypass the bidding system or move to the General Office.

2. We conduct de novo review based on the summary-judgment standard.

The district court granted summary judgment to Frontier, and we conduct de novo review based on the same standard that applied in district court. SEC v. GenAudio Inc. , 32 F.4th 902, 920 (10th Cir. 2022). Under this standard, the district court must view the evidence and draw all reasonable inferences favorably to Ms. Brigham. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The district court could grant summary judgment to Frontier only in the absence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a).

3. Ms. Brigham's proposed accommodations weren't plausibly reasonable.

An employer can incur liability under the Americans with Disabilities Act for failing to accommodate an employee's disability. 42 U.S.C. § 12112(b)(5)(A). Under the Act, the employee must request a "plausibly reasonable accommodation." Punt v. Kelly Servs. , 862 F.3d 1040, 1050 (10th Cir. 2017).

Ms. Brigham requested accommodations, and we must consider whether a factfinder could view them as plausibly reasonable. That inquiry entails a mixed question of law and fact. Id. at 1050–51.

A. Ms. Brigham's request to bypass the bidding system wasn't plausibly reasonable.

Ms. Brigham asked Frontier if she could bypass the bidding system and build her schedule from scratch through Open Time. This request wasn't plausibly reasonable because it would have

• required Frontier to violate the collective bargaining agreement and

• interfered with the rights of other employees.

See Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 79, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (concluding that "the duty to accommodate" doesn't require an employer to "take steps inconsistent with" a collective bargaining agreement); see also Aldrich v. Boeing Co. , 146 F.3d 1265, 1271 n.5 (10th Cir. 1998) (concluding that an employee's request for a transfer was not reasonable because "it would have violated the seniority provisions of the collective bargaining agreement," which was "not required by the [Americans with Disabilities Act]").

Though Ms. Brigham's request would have violated the collective bargaining agreement, Ms. Brigham argues that she would only be taking flights that no one else wanted.² She bases this argument on the availability of unbid flights in Open Time. Those unbid flights opened up only after active flight attendants had obtained their initial schedules through the bidding system. After bidding closed, flight attendants could adjust their schedules by swapping for other flights available in Open Time.

Given the opportunity to swap through Open Time, the union representative urged Frontier to accommodate Ms. Brigham's request through the scheduling system mandated in the collective bargaining agreement. But the union representative opposed any violation of the collective bargaining agreement itself.³

The union representative appeared to propose the same thing that Frontier was already providing: Ms. Brigham could bid on flights, receive an initial schedule, and swap flights through Open Time. But Ms. Brigham wanted to bypass the entire bidding system.⁴

Frontier argues that if Ms. Brigham were to bypass the bidding system, she'd be taking options from flight attendants with greater seniority. Ms. Brigham responds that she'd be taking only the options that no one had picked during the bidding process. But this response suggests that Ms. Brigham could already select those flights in the bidding process. Given the alleged availability of these flights under the status quo, Ms. Brigham couldn't explain at oral argument how her requested accommodation would provide a benefit over the status quo. See Burch v. Coca-Cola Co. , 119 F.3d 305, 314 (5th Cir. 1997) ("In all cases a reasonable accommodation will involve a change in the status quo, for it is the status quo that presents the very obstacle that [the Americans with Disability Act's] reasonable recommendation provision attempts to address.").

In fact, exemption from the bidding process would have benefited Ms. Brigham by freeing her from Frontier's limitations on the use of Open Time. For example, Frontier pointed out at oral argument that every full-time flight attendant had to bid at least 60 hours and keep at least 45 hours during the Open Time period. So Ms. Brigham's participation in the bidding system limited her ability to swap flights. An exemption from the bidding process would free Ms. Brigham from these limitations and allow her to grab 60 hours of flights out of Open Time. This expansion of Ms. Brigham's options could have diminished the options available to other flight attendants.

Exemption from the bidding process would also have freed Ms. Brigham from Frontier's limitations on the swaps themselves. These limitations didn't exist when Frontier had enough flight attendants available on reserve. When Frontier had enough reserve flight attendants, anyone could trade an assigned multi-day trip for multiple one-day trips posted in Open Time. But when there weren't enough reserve flight attendants, Frontier limited swaps so that flight attendants could only swap for trips of the same duration. For instance, a flight attendant could swap a three-day trip only for another trip that lasted three days; the flight attendant couldn't replace a three-day trip with three single-day trips.

This restriction existed throughout the pertinent time-period because Frontier didn't have enough flight attendants on reserve. This restriction prevented Ms. Brigham and many other active flight attendants from trading in Open Time for single-day trips.

Ms. Brigham's requested accommodation would have freed her from the restriction on swaps that applied to every other active flight attendant. Frontier did not need to give Ms. Brigham this singular advantage over every other active flight attendant.

Ms. Brigham argues that even though the accommodation would have violated the collective bargaining agreement, she would not be...