?Takeaway: While the requirements of a collective bargaining agreement (CBA) were conclusive in this case, any unilaterally adopted system of employee rights and benefits might arguably relieve an employer of the obligation to grant a particular disability accommodation if doing so would negatively impact the expectations of other employees. Despite the ruling that failure to engage in the interactive process is not independently actionable, however, an employer acts at its peril if it bypasses that step.
?A flight attendant’s requests to excuse her from the collectively bargained schedule bidding system or to reassign her to general office work were not plausibly reasonable accommodations under the Americans with Disabilities Act (ADA), according to the 10th U.S. Circuit Court of Appeals.
The flight attendant, a person recovering from alcoholism, wanted to avoid overnight layovers because they tempted her to drink. To minimize overnights, the flight attendant asked the airline either to excuse her from the bidding system for flight schedules—so she could have first dibs on single-day trips—or to reassign her to the general office. The airline rejected both requests.
Ultimately, the flight attendant was fired for missing too many assigned flights under the airline’s attendance program. She, in turn, sued the airline for unlawful termination and retaliation under the ADA. The district court granted summary judgment to the airline in the absence of genuine issues of material fact; the appeals court upheld that decision.
Under the collective bargaining agreement (CBA), the airline 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, if unfilled, would go to reserve flight attendants. After swaps, each full-time flight attendant had to end up with at least 60 monthly hours.
Active flight attendants also needed to comply with the airline’s attendance policy, which 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 12-month period. The plaintiff reached that threshold, and the airline terminated her employment.
No Bidding System Bypass
An employer can be liable under the ADA for failing to accommodate an employee’s disability. The appeals court considered whether a factfinder could view the flight attendant’s requested accommodations as plausibly reasonable. It concluded that the request to bypass the bidding system wasn’t plausibly reasonable because it would have required the airline to violate the CBA and because it interfered with the rights of other employees.
Specifically, an exemption from the bidding process would have allowed the plaintiff to skim 60 hours of open flights before any other flight attendants had a chance to choose. It also would have freed the flight attendant from the limitations on swaps. The airline did not need to give the plaintiff this singular advantage over every other active flight attendant.
Although the plaintiff would have been entitled to a reasonable accommodation, the airline was not obligated to violate the CBA by allowing her to take options away from others with greater seniority.
No Injury, No Vacancy
As to the flight attendant’s request for temporary reassignment to the general office, reassignment might be a reasonable accommodation, but only if a vacancy existed. “A position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly situated nondisabled employee to apply for and obtain,” the court said.
Under the CBA, general office reassignment was available only if an employee had been injured on the job, which the plaintiff had not. Accordingly, there was no vacancy because the flight attendant was not similarly situated to employees eligible for reassignment to the general office.
No Viable Claims
When an employee requests an accommodation for a qualifying disability, the ADA requires employers to participate in an interactive process with the employee to determine a mutually suitable accommodation. In this case, the flight attendant claimed the airline violated the act by failing to engage in an interactive process. But the failure to engage in the interactive process is not independently actionable under the act, the court held.
The flight attendant’s claims of retaliation and discrimination also failed. The ADA also prohibits both discrimination against employees with disabilities and retaliation for opposing discrimination. In both cases, the plaintiff needed to make a threshold showing of causation: on the discrimination claim, discrimination “because of her disability,” and on the retaliation claim, a causal link between the firing and her engagement in a protected activity.
The undisputed evidence showed that the plaintiff incurred too many occurrences, which subjected her to firing. She lacked any evidence that the airline had used these occurrences as a pretext to discriminate or retaliate.
Brigham v. Frontier Airlines Inc., 10th Cir., No. 21-1335 (Jan. 24, 2023).
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.
