Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—E.D.N.Y.: Delta flight attendant who requested uniform accommodations advances ADA claims, (Jan 27, 2025)

By Kathleen Kapusta, J.D.

The flight attendant claimed she suffered adverse reactions to the airline’s “Passport Plum” and “Graphite Grey” uniforms, which the airline failed to accommodate.

Delta Airlines must defend at trial a former flight attendant’s allegations that it discriminated against her in violation of the ADA and New York state and city law when it failed to timely accommodate her request to wear an alternative to its “Passport Plum” uniform, which caused her to experience adverse reactions, and when it failed to approve her request to not wear the replacement grey uniform, which caused even more reactions. Nor was Delta entitled to summary judgment on the flight attendant’s discriminatory discharge and retaliation claims, said a federal court in New York, largely denying the airline’s summary judgment motion (Owens v. Delta Airlines, Inc., No. 1:23-CV-02114-FB-PK (E.D.N.Y. Jan. 23, 2025)).

Five months after she began working as a flight attendant, the employee received a Corrective Action Notice (CAN) for calling “in sick after report time during her probationary period.” She received a Final Corrective Action Notice (FCAN) a year later for being absent on five occasions since the first CAN and a second FCAN several weeks after that for being found unresponsive in her hotel room.

First accommodation request. Around that same time, she submitted an accommodation request to wear an alternative to the airline’s required “Passport Plum” uniform, which caused adverse reactions in some flight attendants. According to the employee, the uniform caused her to experience rashes and blisters across her body, anxiety, fatigue, fevers, headaches, and swelling. She continued to wear the uniform until she learned her request had been approved six months later. At that point, she began wearing a black and white uniform.

Second accommodation request. About a year after that, Delta announced that it would be rolling out a Graphite Grey uniform and that all flight attendants would have to wear either the grey or the plum uniform. Flight attendants were also told that they would not receive a flying schedule for the May 2022 bid period unless they wore an approved uniform and that those with pending accommodations requests would be placed on unpaid leave.

Although the employee began wearing the grey uniform, she experienced more complications than with the plum uniform, so she resumed wearing the black and white one. She requested another accommodation in March 2022 but ultimately withdrew it because she did not want to be transferred out of flying.

Termination. The employee continued to accumulate accountability events and in May 2022, she was suspended and ultimately terminated for attendance and reliability issues.

Failure to accommodate. Suing Delta under the ADA, the NYSHRL, and the NYCHRL, the employee argued that the airline failed to accommodate her when it delayed notifying her for six months that it had granted her request to not wear the plum uniform and during the second accommodation process, which did not result in approved accommodations. Delta, pointing out that the employee received reliability infractions even while wearing the black and white uniform, argued that she was not qualified because reliability is an essential function of the flight attendant job.

In response, the employee asserted that she had fewer accountable occurrences while wearing the black and white uniform and that Delta tolerated reliability infractions to varying degrees for individual flight attendants without any specific policy. She pointed to the “8+ list” that tracks the discipline and performance development of flight attendants with eight or more reliability infractions, and Delta’s differential treatment of flight attendants on that list.

A reasonable jury, said the court, could find the employee’s accommodations rendered her qualified if issues with the uniform caused her reliability infractions. That she incurred infractions while wearing the black and white uniform was not dispositive because she could experience lingering issues from previously wearing the plum or grey uniforms. In addition, Delta could have inconsistently applied its reliability policy to individuals on the 8+ list, suggesting that such infractions did not automatically render a flight attendant unqualified. And even if it consistently applied its policy, the court found a fact question as to whether those on the 8+ list were proper comparators. Thus, said the court, a reasonable jury could disagree as to whether the employee’s reliability infractions while approved to wear the black and white uniform rendered her unqualified.

Refusal. As to whether Delta’s six-month delay in issuing the approval letter for her first accommodation request was a refusal, as the employee argued, the court, citing conflicting evidence from both parties, found a credibility determination on this issue precluded summary judgment. Further, the court found a fact issue as to whether any delay by Delta was in bad faith. The employee argued that she did not follow up on her accommodation request because she was afraid of losing her job for wearing the black and white uniform and another flight attendant stated in a deposition that she experienced hazing for wearing the black and white uniform.

Regarding her second accommodation request, while Delta argued that the employee caused a breakdown in the interactive process by withdrawing her request, she contended that she did so because Delta threatened flight attendants with unpaid leave or with removing them from the flying schedule if they did not wear the plum or grey uniforms. Here, the court found a fact dispute as to who caused the breakdown and whether the employee “could have been reasonably accommodated but for the employer’s lack of good faith.” Accordingly, the court denied summary judgment on her failure-to-accommodate claim.

Discriminatory discharge. The employee also argued that Delta unlawfully suspended and terminated her in May and June 2022 because she had requested accommodation in March. In response to Delta’s claim that it terminated her because she failed to meet attendance and absence notification requirements, the employee pointed to Delta’s alleged varying tolerance of reliability infractions of flight attendants on the 8+ list, including 16 attendants based out of the same airport as the employee. She argued that because Delta treated flight attendants on the list differently, a reasonable jury could infer that some other consideration motivated her termination.

For its part, Delta argued that the flight attendants on the list were not proper comparators because there was no evidence establishing their individual circumstances and disciplinary history. Noting that the evidence “broadly details the individual histories of and discipline given to those on the list,” the court found a fact issue as to whether all flight attendants on the 8+ list were proper comparators similarly situated to the employee.

Temporality. The employee also pointed to the closeness in time between her March 2022 request and her May 2022 suspension, which led to her June termination. She argued that this showed discriminatory intent, especially given Delta’s requirement that all flight attendants wear either the plum or grey uniform. Though Delta argued that her suspension and termination resulted from the ongoing reliability infractions she received throughout her employment, it knew that she had requested accommodations for her disability and that she had filed an on-the-job injury claim regarding her disability.

It then suspended her, purportedly because of her accountable reliability infractions, which, observed the court, could have stemmed from her disability. Accordingly, the court found a fact dispute as to whether Delta relied on reliability infractions caused by the employee’s disability to suspend and terminate her.

The employee also sufficiently established that Delta’s proffered reason for the adverse actions—her reliability issues—was pretextual. Specifically, the evidence of temporality and differential treatment of other flight attendants on the 8+ list created a fact issue as to pretext and as to whether disability discrimination was a but-for reason for her termination, said the court, denying summary judgment against this claim as well.

Retaliation. Regarding the employee’s retaliation claim, the court first found that, based on the same arguments made for her discriminatory discharge claim, there was sufficient evidence from which a reasonable jury could infer that she established her prima facie burden. While Delta disputed her assertion of pretext, arguing that temporal proximity alone was not enough to defeat summary judgment, she again pointed to comparator evidence the court already found sufficient to create a reasonable dispute regarding pretext under the employee’s discrimination claim. Accordingly, this claim also advanced.

The case is No. 1:23-CV-02114-FB-PK.

Judge: Block, F.

Attorneys: Natasha A. Moskvina (Moskvina Law) for Regal Summer Owens. Brendan Thomas Killeen (Morgan Lewis and Bockius) for Delta Airlines, Inc., Yudelka Jones, and Juan J. Diaz. Daniel Ryan Axelrod (Lewis Brisbois Bisgaard & Smith) for Sedgwick Claims Management Services, Inc.

Companies: Delta Airlines, Inc.; Sedgwick Claims Management Services, Inc.

Cases: DisabilityDiscrimination Discrimination Discharge StateLawClaims NewYorkNews