Hodgkins v. Frontier Airlines, Inc.
| Decision Date | 14 July 2021 |
| Docket Number | Civil Action No. 1:19-cv-03469-RM-MEH |
| Parties | MELISSA HODGKINS, et al., Plaintiffs, v. FRONTIER AIRLINES, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the Court on Defendant Frontier Airlines, Inc.'s ("Frontier") motion to dismiss the complaint (ECF No. 49). Plaintiffs Melissa Hodgkins, Stacy Rewitzer, Renee Schwartzkopf, and Heather Crowe (collectively, "Plaintiffs") have filed a response to the motion (ECF No. 54) and Frontier has filed a reply (ECF No. 57). Upon consideration of the motion and related briefing, applicable law, and being otherwise fully advised, the Court finds and orders as follows.
Frontier moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
A motion to dismiss under Rule 12(b)(1) tests whether the court has subject matter jurisdiction to properly hear the case before it. The party invoking the court's jurisdiction bears the burden to establish that federal jurisdiction exists, and "since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) motions generally take two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). The first form is a facial attack that challenges the sufficiency of the complaint's allegations as to subject matter jurisdiction. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). The court accepts the allegations in the complaint as true when reviewing a facial attack. Id.
The second form is a factual attack that goes beyond the allegations in the complaint and challenges the facts on which subject matter jurisdiction is based. Id. at 1003. Unlike a facial attack, the court does not presume the truthfulness of the complaint's factual allegations when reviewing a factual attack. Id. "A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. (citation omitted). And "a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion[,]" unless the jurisdictional issue is intertwined with the merits of a plaintiff's case. Id. "The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Id.
Here, Defendant is making a facial attack to the sufficiency of the allegations contained in the complaint. Thus, the Court will accept the allegations in the complaint as true and view all factual disputes in a light most favorable to Plaintiffs.
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-movant, and draw all reasonable inferences in that party's favor. Brokers'Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a "plausible" right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also id. at 555 (). Conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and courts "are not bound to accept as true a legal conclusion couched as a factual allegation," Twombly, 550 U.S. at 555 (quotation omitted).
Plaintiffs in this matter are female flight attendants who had children and breastfed their children during their employment with Frontier. (ECF No. 1 at ¶ 1.)
Pregnancy and Breastfeeding. The average length of human gestation is forty weeks. (Id. at ¶ 21.) During this time, an expectant mother would be medically permitted to fly. (Id. at ¶ 22.) In some instances, however, pregnancy may cause physical changes and conditions which could lead a doctor to limit a pregnant woman's ability to fly or, in this case, a pregnant flight attendant from performing specific activities, ultimately grounding her. (Id. at ¶¶ 22, 24.)
After giving birth, it is common for a mother to breastfeed her baby. Studies indicate that breastfeeding infants for up to a year has developmental and psychological benefits. (Id. at ¶¶ 26, 37.) A mother who wishes to breastfeed her child, but is physically separated from her, must express breast milk using a pumping device to extract milk every two to three hours. (Id. at ¶¶ 29-30.) This process of pumping breast milk takes on average twenty minutes but can be terminated on a moment's notice. (Id. at ¶¶ 31-32.) Failure to remove milk from the breast on a regular schedule can have adverse effects such as pain and swelling and can lead to medical complications as well as cessation of lactation altogether. (Id. at ¶ 33.)
Frontier has an employee policy which requires a pregnant employee to notify Frontier as soon as she becomes pregnant. (Id. at ¶ 38.) It also has a policy regulating work attendance, but Frontier has no written policy for flight attendants who are breastfeeding. (Id. at ¶ 56.)
Dependability Policy. Under Frontier's "Dependability Policy," flight attendants are assigned points for an attendance infraction such as an unexcused absence or tardiness. (Id. at ¶ 39.) Flight attendants receive 1.5 points per infraction, and after accruing three to four points, they become subject to disciplinary action. (Id. at ¶ 40.) After accruing eight points, a flight attendant can be terminated. (Id.) These points will "roll off" a flight attendant's personal record after twelve months of perfect attendance; however, the clock pauses during a period of approved medical leave of absence. (Id.) As one might expect, not all absences accrue points. Leave under the Family and Medical Leave Act ("FMLA"), medical leave, military leave, and other approved absences do not require a point to be etched in a flight attendant's record. (Id. at ¶ 41.) What Frontier's policy does not exempt from accruing points are absences related to pregnancy or breastfeeding outside of those which occur during FMLA leave. (Id. at ¶¶ 43-44).
The Dependability Policy also honors stretches of perfect attendance. Flight attendants can earn credit points toward additional days off and bonus pay over the course of a year after going six months without an absence. (Id. at ¶ 42.)
Employee Leave. Frontier does not offer paid leave to flight attendants who take time off because of pregnancy or a pregnancy-related condition. (Id. at ¶ 46.) In the past, Frontier has denied requests to provide accommodations, including those for temporary alternative job assignments which would allow pregnant flight attendants to continue working during portions of their pregnancy, to flight attendants who were unable to fly. (Id. at ¶ 47.) At the same time,Frontier's policy provides accommodations for flight attendants with medical conditions unrelated to pregnancy and childbirth. (Id. at ¶ 49.) These medical accommodations have been provided to flight attendants who suffered on-the-job injuries as well as developed certain medical conditions outside of work. (Id. at ¶¶ 51-52.)
Frontier's employee policy references "maternity leave" but does not provide for a specified period of paid or unpaid leave for flight attendants after giving birth outside what is available under the FMLA. (Id. at ¶ 53.) Flight attendants who take time off after giving birth are placed on FMLA leave or medical leave, both of which are unpaid. (Id. at ¶ 54.)
Breastfeeding Policy. For those employees returning to work while still breastfeeding, Frontier did and does not provide designated break time to pump or express breast milk. (Id. at ¶ 58.) Meanwhile, Frontier has and continues to provide break time for other physiological needs such as using the restroom. (Id.) Additionally, Frontier did and does not provide any non-bathroom sites located near work areas for flight attendants who are breastfeeding to pump breast milk. (Id. at ¶ 59.) Consequently, Plaintiffs resorted to pumping breast milk in aircraft lavatories. (Id. at ¶ 60.) This practice is generally not considered sanitary as it presents the potential for harmful bacteria to contaminate the breast milk. (Id. at ¶ 36.)
A flight attendant's work schedule is varied. Based on the distance traveled per flight, the number of turns or flights flown in a given shift, and the time between flights, flight attendants may work up to twelve hours a day. (Id. at ¶ 64.) Frontier creates flight attendant schedules based on seniority, which leaves more junior attendants with less control to build their schedules with sufficient breaks between flights and shorter duration flights to permit adequate time to pump breast milk during the workday. (Id. at ¶¶ 66-67.)
While a plane is airborne, flight attendants are required to perform specific duties toensure the safety and comfort of passengers. (Id. at ¶ 71.) Once those duties are complete, flight attendants are permitted to chat, eat, read, or visit the restroom to take care of personal needs. (Id. at ¶¶ 72-73.) While flight attendants are permitted to use their breaks basically as they wish, those who have disclosed to Frontier that they are breastfeeding are prohibited from using this time to pump breast milk. (Id. at ¶ 75.)
The complaint identifies four flight attendants who allege that they have been and continue to be harmed by Frontier's policies.
Stacy Rewitzer. Ms. Rewitzer has been employed as a flight attendant with Frontier since 2006 and became pregnant with her son in August 2015. (Id. at ¶ 76.) In January 2016, Ms. Rewitzer missed ten days of work due to a...
To continue reading
Request your trial