Exclusively Employment Law

Budwig v. Allegiant Air, LLC

by | Oct 25, 2020 | Discrimination, Interactive Process

Originally Published on October 25, 2020; Revised in April 2021

In Budwig v. Allegiant Air, LLC, 2020 WL 5235671 (E.D. Cal. September 2, 2020), Plaintiff Michelle Budwig (“Plaintiff”) sued Allegiant Air, LLC (“Allegiant Air”) for failure to engage in the interactive process and disability discrimination, among other things. The salient facts of Budwig are set forth below:

Relevant Facts

In 1999, Allegiant Air hired Plaintiff as a flight attendant. In 2000 or 2001, Plaintiff became an Airport Transportation Supervisor.

In August 2013, Plaintiff began suffering from a disability. More specifically, when Plaintiff touched parts of the airplane that had been cleaned with a new cleaning product, her hands broke out with blisters. Plaintiff “‘also suffered permanent nerve damage in her hands.’” (Budwig v. Allegiant Air, LLC, 2020 WL 5235671, *1 (E.D. Cal. September 2, 2020).) However, when Plaintiff wore gloves, the gloves protected her hands from the cleaning product.

In response, Allegiant Air offered to Plaintiff a temporary light-duty position, which Allegiant Air created specifically for Plaintiff during the pendency of her workers’ compensation claim. The position expired around September 30, 2014.

During Plaintiff’s assignment to this temporary position, Allegiant Air announced that it was redesigning the Airport Transportation Supervisor program. Pursuant to this redesign, all Airport Transportation Supervisors would be required to reapply for their positions. Plaintiff missed the deadline to reapply for the Airport Transportation Supervisor position and stopped serving as Airport Transportation Supervisor at that point.

Subsequently, Allegiant Air offered Plaintiff a workers’ compensation leave of absence, which lasted until at least November 30, 2014.

On December 4, 2014, Allegiant Air’s third party administrator “notified Allegiant that [Plaintiff] could return to work, so long as she ‘wear[s] cotton[-]line[d], Nitrile gloves whenever she goes back to work on the plane, just to keep away the cleaning agents directly.’” (Id. at *2.)

On December 16, 2014, Plaintiff spoke with Allegiant Air employees Michael Bonner (“Bonner”) and Adriana Ramirez (“Ramirez”), who said that Allegiant Air was putting Plaintiff on unpaid leave because she needed to wear gloves while working. They further told Plaintiff that she could look for other positions at Allegiant Air for which she was qualified.

According to Plaintiff, Allegiant Air “‘could have had [her] work as a flight attendant while wearing gloves in December of 2014, but refused to do so.’” (Id.)

Plaintiff asserted that Bonner told her that Allegiant Air would not assist her in getting another job at Allegiant Air. Plaintiff further asserted that Bonner never told her that Allegiant Air “‘planned to investigate the type of gloves [Plaintiff] needed to wear or that [Allegiant Air] was going to engage in the interactive process to get [her] back to working as a Flight Attendant.’” (Id.)

According to Plaintiff, Bonner also never indicated that Allegiant Air would engage in the interactive process or “research” reasonable accommodations. (Id.)

On December 26, 2014, Plaintiff sent an email to Bonner, stating that she wanted an Advertising Administrator position at Allegiant Air. After interviewing for the position, however, Plaintiff was not offered the position.

On January 29, 2015, Ramirez ordered three pairs of gloves. According to Allegiant Air, Ramirez then asked Allegiant Air’s in-flight team to test the gloves “as part of ‘the interactive process for [Plaintiff].’” (Id. at *3.) On February 17, 2015, Allegiant Air’s counsel requested additional information from Michael Borok (the Panel-Qualified Medical Evaluator) about the gloves that Plaintiff required.

The parties do not dispute that between December 16, 2014 and June 1, 2015, Allegiant Air never asked Plaintiff to try on the gloves and never asked to observe Plaintiff performing any type of job functions wearing gloves. (See id.)

On May 8, 2015, Plaintiff filed a discrimination complaint with the California Department of Fair Employment and Housing (the “DFEH”).

On May 27, 2015, Allegiant Air received Dr. Borok’s response. He clarified that Plaintiff “‘should wear any nitrile powderless glove that does not contain parabens, lanolin, fragrance or nickel and underneath these gloves, she can wear some fine plain white thin cotton gloves.’” (Id.)

On June 10, 2015, Allegiant Air offered Plaintiff a modified-duty flight attendant position. In this modified-duty position, Plaintiff would be allowed to wear nitrile powderless gloves, and underneath, wear thin white cotton gloves. That same day, Plaintiff accepted the job offer and continues to work in that position.

Failure to Engage in the Interactive Process

In response to Plaintiff’s failure to engage in the interactive process claim under California law, Allegiant Air argued that it engaged in the interactive process. First, it argued that it “participated in the interactive process because it offered [Plaintiff] a reasonable accommodation by returning her to work as a flight attendant in June 2015.” (Id. at *8.)

However, the Court disagreed with Allegiant Air and held that a reasonable juror could find that Allegiant Air “failed to act in a timely manner during the [interactive] process.” (Id. at *9 (emphasis added).) Specifically, Allegiant Air learned about Plaintiff’s disability in August 2013 but did not begin testing a pair of gloves until February 2015. “Moreover, Allegiant offered [Plaintiff] the flight attendant position only after she filed a discrimination complaint with [the DFEH].” (Id.)

Disability Discrimination

Allegiant Air also argued that it was not liable for disability discrimination. First, it argued that when Allegiant Air placed her on leave, Plaintiff could not perform the essential duties of her job with or without reasonable accommodation.

The Court disagreed with Allegiant Air, finding, among other things, that a reasonable jury could find that Plaintiff could have returned to her duties as a flight attendant by wearing gloves. Click here to read the full court opinion.

If you have questions about the interactive process and/or disability discrimination under California law, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. Finley Employment Law serves clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.

The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.