UNITED STATES COURT OF APPEALS January 24, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________

REBECCA BRIGHAM,

Plaintiff - Appellant,

v. No. 21-1335

FRONTIER AIRLINES, INC.,

Defendant - Appellee.

___________________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-03417-WJM-STV) ___________________________________________

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 Appellate Case: 21-1335 Document: 010110802261 Date Filed: 01/24/2023 Page: 2

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.

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