Frontier Airlines did not violate the Americans with Disabilities Act when it denied a flight attendant’s request to build her schedule without layovers to avoid exacerbating her alcoholism, the federal appeals court based in Denver concluded this week.

The airline refused to allow Rebecca Brigham to pick up “leftover” shifts that other flight attendants had not claimed through the seniority-based bidding process, insisting it would give her an unfair scheduling advantage over her coworkers. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed Frontier was not required to exempt a single disabled employee from the rules.

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“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,” wrote Judge Robert E. Bacharach in the panel’s Jan. 24 opinion.

The biggest challenge for the appellate judges was not the law, but rather wrapping their heads around what exactly Brigham was asking for and why Frontier was vehemently opposed to it.

“I can’t understand why you care,” Judge Carolyn B. McHugh told the company’s attorney during oral arguments last year.

Brigham was a flight attendant from 2007 to 2015. In late 2014, she notified her employer that she entered a rehabilitation program for alcoholism, which allegedly stemmed in large part from the death of her infant daughter. She requested the ability to build a schedule that avoided overnight trips and layovers, believing those would tempt her to drink. Frontier denied the proposal and fired her in November 2015 after she accumulated too many absences.

Brigham then sued Frontier for violating the ADA, which requires employers to provide reasonable accommodations to a disabled employee. She also believed Frontier dismissed her because of her disability, as she reportedly had called out of work to avoid overnight trips in an attempt to comply with her treatment plan.

To decide whether Frontier failed to provide a reasonable accommodation, the 10th Circuit panel focused on how the airline’s scheduling process worked, along with Brigham’s proposed deviation from it.

Under the flight attendants’ collective bargaining agreement, employees bid on shifts, then are assigned trips in order of seniority. After Frontier sets the schedules, with around 60 “credit hours” per flight attendant, employees may add, drop or swap shifts in the “open time” period, without regard to seniority. The alterations are done piecemeal, and flight attendants must maintain at least 45 credit hours in their schedules.

Brigham proposed bypassing the first step, seniority-based bidding, and building a schedule solely from open time, seeking trips without layovers. During oral arguments, the arrangement seemed plausible to some 10th Circuit judges.

“If she gives up her seniority position in the first bidding round, then she actually has no negative impact on the people above her in the line and she actually benefits the people below her in the line,” McHugh said.

David Charles Gartenberg, the attorney for Frontier, responded that Brigham would, in fact, receive a benefit not available to other employees — building a schedule through open time.

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“Let’s say we’ve got a card game. Everybody is dealt seven cards at the beginning. That’s the bidding process. And then the rules are that you can discard one card and pick up one card. That’s the open time process,” he said. “What she’s saying, and I tried this on my 5-year-old last night who agreed this is unfair, is you can’t just start in the middle of the game and pick up a whole set of seven cards.”

Except, countered Bacharach, Brigham was letting her coworkers pick their preferred cards first, agreeing to take the “dregs of the deck” herself.

“Although she is bypassing the collective bargaining agreement, it seems to me Judge McHugh is right. She’s not interfering with those with greater seniority and she’s benefiting those with lesser seniority,” said Bacharach.

In 2021, U.S. District Court Judge William J. Martínez sided with Frontier. Even if Brigham did not negatively affect more senior employees, her proposed accommodation was “inconsistent” with the union contract, he reasoned. Martínez added that Frontier could never guarantee Brigham would avoid all layovers in her job, so it did not have to adopt her plan.

Ultimately, the 10th Circuit decided Frontier did not commit an ADA violation by choosing to adhere to the collective bargaining agreement and requiring Brigham to bid on shifts like everyone else. The panel concluded her proposal was, as the airline claimed, unfair to other flight attendants.

“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,” Bacharach wrote. “This expansion of Ms. Brigham’s options could have diminished the options available to other flight attendants.”

The panel also disagreed that Frontier should have transferred Brigham to the General Office, where flight attendants with on-the-job injuries are permitted to perform light duty. Although the U.S. Equal Employment Opportunity Commission, which investigates complaints of job discrimination, interprets the ADA to require accommodations for disabled workers through such light duty programs, the 10th Circuit refused to go along with the EEOC’s guidance.

Under the court’s own precedent, Bacharach explained, Frontier technically had no vacant positions in the General Office because such assignments were “available only for employees injured on-the-job.”

Frontier and the flight attendants’ union did not respond to email requests for comment. John Crone, the lawyer for Brigham, said the decision was disappointing, as Brigham wanted to keep working for the airline.

“I think the court was hesitant to approve any accommodation that could violate a collective bargaining agreement. I understand that’s a difficult balancing act,” he said. “Now all of these programs where there’s light duty positions set up for injured workers, those are off the table for disabled employees seeking accommodations. And that is not true elsewhere.”

The case is Brigham v. Frontier Airlines, Inc.

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