Hodgkins et al v. Frontier Airlines, Inc.
ORDER Denying 49 Frontier's Motion to Dismiss by Judge Raymond P. Moore on July 14, 2021.(rvill, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:19-cv-03469-RM-MEH
MELISSA HODGKINS, et al.,
FRONTIER AIRLINES, INC.,
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
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 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”). 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’s Employee Policies
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 nonbathroom 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 to
ensure 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 pregnancy-related condition, and, as a result, she
accrued three points under the Dependability Policy. (Id. at ¶ 85.) Frontier declined to remove
the points from Ms. Rewitzer’s file after repeated requests to recategorize the absences as
approved FMLA leave. (Id. at ¶ 86.) The next month, Frontier denied Ms. Rewitzer’s request
for time off for pregnancy-related health complications because the requested days coincided
with Super Bowl weekend. (Id. at ¶ 87.)
Because of pregnancy-related complications, Ms. Rewitzer exhausted all her FMLA
leave early in her pregnancy which required her to go on unpaid non-FMLA medical leave when
her doctor determined she was unable to fly. (Id. at ¶ 77.)
On August 9, 2016, almost three months after giving birth to her child, Ms. Rewitzer was
cleared by her doctor to return to work with various physical limitations. (Id. at ¶ 78.) Ms.
Rewitzer met with the Workers Compensation & Leaves of Absences manager to discuss
possible breastfeeding accommodations. (Id. at ¶ 79.) The manager explained that Ms. Rewitzer
should bid for trips with adequate break times between flights to pump but stated that Frontier
“cannot offer any accommodations to nursing flight attendants.” (Id. at ¶ 83.) Ms. Rewitzer was
subsequently placed on unpaid medical leave until she was cleared to fly without physical
limitations or requiring accommodations to pump breast milk. (Id. at ¶ 84.)
As a result of Frontier’s policies relating to pregnancy, Ms. Rewitzer suffered economic
as well as non-economic harm. (Id. at ¶ 89.) Ms. Rewitzer remains employed with Frontier and
continues to be subject to Frontier’s policies and practices on an ongoing basis. (Id. at ¶ 90.)
These policies have impacted and continue to impact her plans with respect to her family and her
personal reproductive decisions. (Id.)
Melissa Hodgkins. Ms. Hodgkins has worked for Frontier as a flight attendant since
2007 and during that time, has had two children. (Id. at ¶¶ 91-92.) When returning to work after
having her first child, Ms. Hodgkins learned from her colleagues that most flight attendants who
nursed their babies pumped breast milk in the aircraft lavatories during flights. (Id. at ¶ 94.) Not
wanting to engage in that practice for sanitation concerns, Ms. Hodgkins decided to cease
breastfeeding prior to returning to work, despite her desire to continue breastfeeding her baby.
In April 2017, while pregnant with her second child, Ms. Hodgkins accrued 1.5 points
under the Dependability Policy for an unexcused pregnancy-related absence. (Id. at ¶ 95.) In
October 2017, Frontier denied Ms. Hodgkins’ request for a ground assignment based on
pregnancy-related physical limitations imposed by her doctor. (Id. at ¶ 97.) On November 8,
2017, Frontier placed Ms. Hodgkins on unpaid medical leave which continued until sometime
after she gave birth. (Id.) Again, Ms. Hodgkins weaned her baby from breastfeeding earlier than
desired so that she could return to work for fear of being reassigned. (Id. at ¶ 100.)
Based on Frontier’s policies relating to pregnancy, Ms. Hodgkins suffered economic as
well as non-economic harm. (Id. at ¶ 101.) Further, Frontier’s Dependability Policy harmed Ms.
Hodgkins by causing her to accrue points for pregnancy-related absences. (Id. at ¶ 102.) Ms.
Hodgkins remains employed with Frontier and continues to be subject to Frontier’s policies and
practices on an ongoing basis. (Id. at ¶ 103.) These policies have impacted and continue to
impact her plans with respect to her family and her personal reproductive decisions. (Id.)
Renee Schwartzkopf. Ms. Schwartzkopf has worked for Frontier as a flight attendant
since 2006 and became pregnant with her son in May 2016. (Id. at ¶¶ 104-05.) After giving
birth, Ms. Schwartzkopf returned to work in April 2017, at which time, Frontier required her to
attend a day-long training program. (Id. at ¶ 107.) Knowing that she would need to pump breast
milk during the training, Ms. Schwartzkopf submitted an accommodation request with
supporting documentation from her doctor describing her impairment. (Id. at ¶ 108.) Frontier
granted Ms. Schwartzkopf’s request. (Id.)
After that, however, Frontier declined to advise Ms. Schwartzkopf of any policy
regarding pumping inflight or whether she was even permitted to do so. (Id. at ¶ 109.) Further,
Frontier did not provide her with information about approved pumping locations in Denver
International Airport or offer sufficient break time between flights for her to pump breast milk.
(Id. at ¶ 115.) Consequently, Ms. Schwartzkopf felt she had no choice but to pump breast milk
in the airplane lavatory during her inflight breaks and at airport restrooms between flights. (Id. at
As a result of Frontier’s policies relating to pregnancy and breastfeeding, Ms.
Schwartzkopf suffered economic as well as non-economic harm. (Id. at ¶ 119.) Ms.
Schwartzkopf remains employed with Frontier and continues to be subject to Frontier’s policies
and practices on an ongoing basis. (Id. at ¶ 121.) These policies have impacted and continue to
impact her plans with respect to her family and her personal reproductive decisions. (Id.)
Heather Crowe. Ms. Crowe works as a flight attendant for Frontier. (Id. at ¶ 122.)
During her employment, between October 2013 and June 2018, she had three children. (Id.)
When returning to work after her first and second pregnancies, Ms. Crowe was forced to pump
breast milk in aircraft lavatories during inflight breaks because she did not have sufficient break
time between flights to pump on the ground. (Id. at ¶ 124.) While on leave after having her
second child, Frontier denied Ms. Crowe’s initial request for extended leave under the FMLA to
breastfeed, but eventually granted her leave after she was diagnosed with post-partum
depression. (Id. at ¶ 127.)
During Ms. Crowe’s third pregnancy, she was diagnosed with a sinus infection
exacerbated by her pregnancy, and, thus, was absent from work. (Id. at ¶ 129.) Despite Ms.
Crowe submitting medical documentation indicating she was unable to fly, she accrued points
under the Dependability Policy for her pregnancy-related absences, resulting in disciplinary
action. (Id.) Ms. Crowe returned to work while she was still breastfeeding her third child and
felt forced to pump breast milk in the aircraft lavatory. (Id. at ¶ 130.) As a result of Frontier’s
policies relating to pregnancy and breastfeeding, Ms. Crowe suffered economic as well as noneconomic harm. (Id. at ¶ 131.) Further, Frontier’s Dependability Policy harmed Ms. Crowe by
causing her to accrue points for pregnancy-related absences. (Id. at ¶ 132.)
Ms. Crowe remains employed with Frontier and continues to be subject to Frontier’s
policies and practices on an ongoing basis. (Id. at ¶ 133.) These policies have impacted and
continue to impact her plans with respect to her family and her personal reproductive decisions.
Based on the forgoing, Plaintiffs bring sixteen causes of action, seeking damages and
injunctive and declaratory relief. Plaintiffs claim Frontier has violated, and continues to violate,
state and federal laws, including: Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”); the FMLA, 5 U.S.C. § 6381 et seq.; the Colorado Law on Reasonable
Accommodations for Pregnancy, Childbirth, and Related Conditions, Colo. Rev. Stat. § 24-34402.3; the Colorado Workplace Accommodations for Nursing Mothers Act, Colo. Rev. Stat. §
13-1-124(1) (“WANMA”); and the Colorado Anti-discrimination Act, Colo. Rev. Stat. § 24-34401 et seq. (“CADA”). (Id. at ¶ 7.) Plaintiffs also claim there are two putative classes of flight
attendants, a pregnancy class and breastfeeding class, employed by Frontier who have been and
continue to be harmed by Frontier’s policies and practices regarding pregnancy and lactation.
(Id. at ¶¶ 142, 144.)
Procedural Background. On May 16, 2017, Ms. Rewitzer filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) concerning Frontier’s allegedly discriminatory
practices and policies. (Id. at ¶ 134.) On October 6, 2017, Ms. Hodgkins and Ms. Schwartzkopf
filed charges with the EEOC concerning Frontier’s alleged conduct, with Ms. Hodgkins
supplementing her charge on February 9, 2018. (Id. at ¶ 135.) And on June 15, 2018, Ms.
Crowe filed a charge with the EEOC concerning Frontier’s alleged conduct, supplementing her
charge on January 4, 2019. (Id. at ¶ 136.)
On December 2, 2019, Plaintiffs requested a Notice of Right to Sue from the EEOC. (Id.
at ¶ 140.) This suit followed.
Frontier asks the Court to dismiss the complaint for lack of jurisdiction and because
Plaintiffs fail to state a plausible claim for relief. (ECF No. 49.) Frontier first challenges the
sufficiency of the complaint on three jurisdictional grounds: (1) standing; (2) preemption; and (3)
exhaustion. (Id. at 3-12.) Frontier next challenges the sufficiency of the pleadings, arguing that
Plaintiffs have failed to: (1) state a claim for disparate treatment on the basis of sex under Title
VII and CADA; (2) establish a prima facie case of disparate impact discrimination; (3)
demonstrate Frontier refused to provide rooms for lactation as prescribed under WANMA; (4)
timely bring many of their claims as required under the applicable statute of limitations; and (5)
propose an ascertainable class under Rule 23. (Id. at 14-21.)
Plaintiffs oppose the motion on all fronts. (ECF No. 54.)
Dismissal Under Rule 12(b)(1)
The Court will first address whether Plaintiffs have standing before turning to whether
Plaintiffs’ state law claims are preempted by federal law.1
Justiciability “is the threshold question in every federal case, determining the power of
the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Article III of the
Constitution grants federal courts jurisdiction over “cases and controversies,” and the standing
doctrine “serves to identify those disputes which are appropriately resolved through the judicial
process.” Whitmore v. Arkansas, 495 U.S. 149, 154-155 (1990).
To have Article III—constitutional—standing, “the plaintiff must show that the conduct
of which he complains has caused him to suffer an injury in fact that a favorable judgment will
redress.” Wilderness Soc’y. v. Kane Cty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011)
(quotation, citation, and brackets omitted). In other words, a plaintiff must plausibly allege (1)
Frontier initially argued Plaintiffs failed to exhaust their CADA claim in its motion to dismiss. (ECF No. 49 at
13.) This argument, however, was subsequently abandoned after Frontier learned that Plaintiffs had received notice
of right to sue on that claim (ECF No. 57 at 7). Thus, it will not be addressed by the Court.
injury in fact, (2) fairly traceable to defendant’s conduct, (3) that is redressable by a favorable
judicial decision. See VR Acquisitions, LLC v. Wasatch Cty., 853 F.3d 1142, 1146 (10th Cir.
2017). Article III standing is jurisdictional; it is properly raised under Rule 12(b)(1). In re
Peeples, 880 F.3d 1207, 1212 (10th Cir. 2018). The “plaintiff must demonstrate standing for
each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
Questions of standing and mootness are closely linked—mootness could be seen as a
“time dimension of standing.” See 13B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3531.12 (3d ed. 1998) (“Although discrete names have been given to
the several nominate categories of justiciability, they are tied closely together.”); see also Warth,
422 U.S. at 499 n.10 (“The standing question thus bears close affinity to . . . mootness-whether
the occasion for judicial intervention persists.”).
Mootness is an issue of subject matter jurisdiction which can be raised at any stage of the
proceedings. Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001). Under Article III of
the Constitution, federal courts may only adjudicate live controversies. See U.S. Const. Art. III,
§ 2, cl. 1; Alvarez v. Smith, 558 U.S. 87, 92 (2009). An “actual controversy must be extant at all
stages of review, not merely at the time the complaint is filed.” Alvarez, 558 U.S. at 130
(internal quotation marks and citations omitted); see also Jordan v. Sosa, 654 F.3d 1012, 1023
(10th Cir. 2011) (“The mootness doctrine provides that although there may be an actual and
justiciable controversy at the time the litigation is commenced, once that controversy ceases to
exist, the federal court must dismiss the action for want of jurisdiction.”) (citation omitted).
An exception to the mootness doctrine exists when the harm is “capable of repetition, yet
evading review.” Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884, 892 (10th Cir.
2008) (quotation and citation omitted). This doctrine applies only in exceptional circumstances.
The capable-of-repetition exception “arises ‘when: (1) the duration of the challenged action is
too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party . . . [will] be subjected to the same action again.’”
Id. (citation omitted).
One such exceptional circumstance is a case involving pregnancy. Because the duration
of a pregnancy will come to term before the typical litigation process is complete, pregnancy
discrimination “truly could be capable of repetition, yet evading review.” Roe v. Wade, 410 U.S.
113, 125 (1973) (quotation and citation omitted).
As set forth in Roe:
when, as here, pregnancy is a significant fact in the litigation, the
normal 266-day human gestation period is so short that the
pregnancy will come to term before the usual appellate process is
complete. If that termination makes a case moot, pregnancy
litigation seldom will survive much beyond the trial stage, and
appellate review will be effectively denied. Our law should not be
Id. at 125. Thus, to ensure a case involving pregnancy-based discrimination is not rendered moot
at the cessation of the pregnancy, the Supreme Court held “[p]regnancy provides a classic
justification for a conclusion of nonmootness.” Id. Put simply, Roe created an exception to the
normal standing and mootness requirements for cases involving pregnancy.
Here, Frontier challenges Plaintiffs’ standing to seek prospective and retrospective relief.
Standing to Seek Prospective Relief
Frontier argues that Plaintiffs are not entitled to seek injunctive and declaratory relief,
explaining that they have failed to prove their standing since none of them are currently pregnant
or breastfeeding and none of them assert an imminent intent to become pregnant. (ECF No. 49
at 4-5.) Plaintiffs disagree, arguing that they have standing because the harms they suffered are
capable of repetition, yet evading review. (ECF No. 54 at 5.)
“At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we ‘presume that general allegations embrace
those specific facts that are necessary to support the claim.’” Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992) (citation omitted). At issue here is the injury in fact requirement. To satisfy the
“injury in fact” requirement for prospective relief, “the plaintiff must be suffering a continuing
injury or be under a real and immediate threat of being injured in the future.” Tandy v. City of
Wichita, 380 F.3d 1277, 1283-84 (10th Cir. 2004) (citing City of Los Angeles v. Lyons, 461 U.S.
101-02, 107 n.8 (1983)). “Past wrongs are evidence bearing on whether there is a real and
immediate threat of repeated injury” but a “claimed injury that is contingent upon speculation or
conjecture is beyond the bounds of a federal court’s jurisdiction.” Tandy, 380 F.3d 1283-84
(10th Cir. 2004) (citations omitted).
In this case, whether Plaintiffs have standing to seek prospective relief is a close question.
Frontier argues that when this suit commenced, none of the Plaintiffs were pregnant or
breastfeeding and a mere someday intention of pregnancy plans without indication of when that
someday will come is insufficient to show an actual or imminent injury. Plaintiffs’ response
conflates the standing and mootness requirements, arguing that none of them need to remain
continually pregnant or breastfeeding to maintain standing. Yet, that is not fatal to their position.
Plaintiffs rely on Roe in positing that because they have been harmed in the past and they
remain employed with Frontier which subjects them to the challenged conduct in future
pregnancies and because their claims concern pregnancy, a classic condition of nonmootness,
Plaintiffs should be able to challenge Frontier’s policies regardless of whether they are currently
pregnant or allege any specific intent to become pregnant and breastfeed in the future. It follows,
Plaintiffs argue, that because the challenged conduct has impacted and continues to impact their
plans with respect to their family planning and personal reproductive decisions, their allegations
are sufficient to establish a continuing injury.
The Court agrees that because Plaintiffs remain employed by Frontier, it is reasonable to
expect that they, or another member of the proposed class, would be subject to the same policies
impacting their ability to take time off for pregnancy-related medical care or obtain breastfeeding
accommodations. Based on the allegations, it seems likely, rather than speculative or
conjectural, that a pregnant flight attendant will be subjected to the same alleged discriminatory
Plaintiffs have alleged that they were exposed to wrongful conduct in the past and
continue to be subjected to Frontier’s policies in the future. The injury in fact is the ongoing
threat of being denied pregnancy-related accommodations causing Plaintiffs to modify their
family planning decisions. While none of the named Plaintiffs have averred an imminent intent
to become pregnant, their injury is predicated upon conduct which occurred during past
pregnancies, an inherently temporary condition, and the real prospect that it will occur again.2
Even if the Court were to assume that none of the named Plaintiffs themselves are
reasonably expected to face the same injury, under a broadened scope of injury reoccurrence,
there is a reasonable expectation that one of the approximately 1,150 female flight attendants
employed by Frontier will become pregnant in the future and be subject to the same alleged
discriminatory conduct. See Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003) (explaining that
in abortion and election cases courts do not interpret the capable of repetition yet evading review
Since filing the complaint, Ms. Hodgkins and Ms. Crowe have each given birth and breastfed. (ECF No. 54 at 6.)
While neither Plaintiff explicitly indicated an immediate intention to have another child and breastfed in the
complaint, this does support the finding that the allegations are sufficient to show a reasonable expectation that the
same controversy will occur to the same complaining party.
exception requirement “that the dispute giving rise to the case be capable of repetition by the
same plaintiff . . . literally”) (citations omitted) (emphasis in original). Thus, Frontier’s alleged
failure to provide accommodations for pregnant and breastfeeding flight attendants is a concrete
injury which continues to affect each of them in a personal and particularized manner.
Frontier cites ACLU v. Trinity Health Corp. in support of its position. 178 F. Supp. 3d
614 (E.D. Mich. 2016). In Trinity Health Corp., the court concluded that because the number of
events which must occur for a plaintiff to be injured by a hospital’s pregnancy policy were too
great and remote, the plaintiffs’ risk of harm could not be characterized as “certainly
impending.” Id. at 620. There, the plaintiffs sued a parent corporation of a religious health care
system alleging that its hospitals’ policy precluding certain emergency pregnancy-related
medical procedures was in violation of federal law. Id. at 616-17.
The plaintiffs in Trinity Health Corp. argued that they had standing based on two
theories: (1) at least one of the individual plaintiffs had “already been denied stabilizing
treatment” at one of defendants’ hospitals and (2) “at least one member was pregnant at the time
the case was filed,” had a history of pregnancy complications, and lived in a county where
defendants owned the only hospital. Id. at 618-19. In holding that plaintiffs had failed to
establish standing to bring their claims, the court measured the “vagueness of the allegations” to
be “dubious” and focused on the speculative nature of alleged harms, explaining that even with
one of the plaintiffs being pregnant, she failed to plead facts showing she faces a substantial risk
of pregnancy complications. Id. at 619-20. The Trinity Health Corp. court reasoned that she
could not guarantee that she would experience pregnancy complications, choose to be treated at
defendant’s hospitals, or require hospitalization in the first place. Id.
Here, Plaintiffs’ risk of harm is more certain than in Trinity Health Corp., primarily
because Plaintiffs remain employed with Frontier. The pregnant plaintiff in Trinity Health Corp.
was not bound to seek medical assistance at defendants’ hospitals if and when a pregnancy
complication should arise whereas in this case, Plaintiffs’ family planning decisions are
continually impacted by Frontier’s policies. Moreover, Plaintiffs here do not make vague
allegations of past harms like in Trinity Health Corp.; instead, they plead a litany of specific
harms which does more to show a reasonable likelihood of repeated injury.
Ultimately, Plaintiffs allege that their family and personal reproductive decisions have
been and will continue to be impacted by Frontier’s policies. Pregnancy, childbirth, and other
related conditions are personal interests the Pregnancy Discrimination Act was created to protect
by forbidding discrimination based on a person’s reproductive decisions. Plaintiffs are women
of childbearing age who, while pregnant and after having had children and breastfed were
allegedly harmed by Frontier’s discriminatory policies, continue to work for Frontier and live
under that characterized as a real specter of discrimination. This is sufficient to create a
reasonable expectation that the challenged conduct will occur again and show a continuing injury
adequate to establish standing. Thus, Plaintiffs have standing to seek prospective relief. See
McCormack v. Herzog, 788 F.3d 1017, 1026 (9th Cir. 2015) (finding that plaintiff’s challenge to
an abortion law was not moot based on the “capable of repetition, yet evading review” doctrine
where she “may become pregnant again, and her term of pregnancy is of limited duration” and
that the plaintiff had “standing based on the ongoing risk of prosecution for the termination of
her past pregnancy”). Accordingly, Frontier’s motion to dismiss Plaintiffs’ claims for
prospective relief for want of standing is denied.
Standing to Seek Damages
Frontier next argues that Plaintiffs have failed to allege they were harmed by its policies.
(ECF No. 49 at 6.) In response, Plaintiffs argue that they have sufficiently plead facts indicating
they were harmed by Frontier’s polices. (ECF No. 54 at 3.)
Plaintiffs have standing to seek damages. They have each established that during their
pregnancies, they were forced into unpaid leave without the option to seek alternative work
assignments. Moreover, they have alleged that the Dependability Policy’s point system deterred
them from taking time off to obtain pregnancy-related medical care, resulted in disciplinary
action, and disqualified them from perfect attendance bonus opportunities. Plaintiffs have also
each alleged that they breastfed during their employment and that by denying their
accommodation requests, Frontier impacted their ability to continue breastfeeding. Therefore,
Plaintiffs have suffered an injury in fact.
Additionally, Plaintiff’s injuries are fairly traceable to Frontier’s (1) alleged failure to
accommodate reassignment requests while Plaintiffs were pregnant and breastfeeding, (2)
Dependability Policy, or (3) denial of adequate breastfeeding accommodations. Finally, an
award of back pay and compensatory and other economic damages can redress the injuries
suffered by Plaintiffs. As a result, Plaintiffs have standing to seek damages. Accordingly,
Frontier’s motion to dismiss Plaintiffs’ claims for damages for want of standing is denied. See
e.g., Santana v. City & Cty. of Denver, 488 F.3d 860, 866 (10th Cir. 2007) (explaining that a
plaintiff had standing to bring a discrimination claim where she asserted “that she was the victim
of discrimination because the interview selection process resulted in a disparate impact on
Frontier next argues that Plaintiffs’ state law claims (claims eight, twelve, thirteen, and
fourteen) relating to a failure to grant breastfeeding and pumping accommodation requests are
preempted by federal airline regulations. (ECF No. 45 at 10.) As a result, Frontier contends, the
Court lacks jurisdiction over these claims, and they must be dismissed. (Id. at 11.) Specifically,
Frontier asserts that because the Federal Aviation Act (“FAA”) and the Airline Deregulation Act
(“ADA”) regulate the field of airline transportation, they preempt Plaintiffs’ state law claims.
(Id. at 10.)
Plaintiffs disagree, claiming that preemption is an affirmative defense not properly raised
at the pleading stage under Rule 12(b)(1) or 12(b)(6). (ECF No. 54 at 18.) If Frontier’s
argument is not premature, Plaintiffs assert that their state antidiscrimination claims are not
preempted by the applicable federal regulations because the state law claims do not significantly
impact the airline’s “rates, routes, or services” which are exclusively regulated by federal law.
(Id. at 21.)
Pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, “Congress has the power to
enact statutes that preempt state law.” US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th
Cir. 2010) (citation omitted). Preemption of a state law can occur in one of three ways: (1)
“express preemption, which occurs when the language of the federal statute reveals an express
congressional intent to preempt state law;” (2) “field preemption, which occurs when the federal
scheme of regulation is so pervasive that Congress must have intended to leave no room for a
State to supplement it;” and (3) “conflict preemption, which occurs either when compliance with
both the federal and state laws is a physical impossibility, or when the state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Id. at 1324 (citation and quotation omitted)
Here, Frontier argues “field preemption” bars Plaintiffs’ state law claims. In this regard,
the Tenth Circuit held “that the comprehensive regulatory scheme promulgated pursuant to the
FAA evidences the intent for federal law to occupy the field of aviation safety exclusively.” Id.
While the Court agrees with Frontier to the extent that a state law impacting aviation
safety could be preempted by the FAA, it is not apparent from the pleadings that accommodation
requests under the applicable state laws impact airline safety. That is because Frontier’s
justification, that granting Plaintiffs’ accommodation requests could interfere with proper
performance of a crewmember’s duties jeopardizing passenger safety, for denying
accommodations to pump breast milk while inflight is a proffered non-discriminatory
justification first raised in its motion to dismiss. See Parise v. Delta Airlines, Inc., 141 F.3d
1463, 1466 (11th Cir. 1998) (explaining that it was “inappropriate . . . for the [district] court to
credit the defendant’s proffered non-discriminatory justification for its decision to terminate an
employee and use that allegation as a basis to find preemption” because doing so “potentially
depriv[ed] the plaintiff of any remedy under either federal or state law”).
Based on the allegations, Frontier denied requests for (1) ground positions during flight
attendants’ pregnancies and while breastfeeding, (2) shorter trips with longer ground time
between flights to pump breastmilk, and (3) lactation facilities other than a lavatory. It is not
apparent on the face of the complaint how these accommodation requests relate to the regulation
of aviation safety; it is only after consideration of Frontier’s proffered justification for denying
such requests could the relation be made. As in this case, determining whether a party should
prevail on its affirmative defense, such as preemption, is better left until the underlying facts
have been further developed. Accordingly, Frontier’s motion to dismiss the state law claims
because they are preempted by the FAA is denied. See In re Air Crash Disaster at Stapleton
Int’l Airport, Denver, Colo., on Nov. 15, 1987, 721 F. Supp. 1185, 1186 (D. Colo. 1988)
(explaining that preemption is a defense in the nature of avoidance properly “claimed as an
affirmative defense in [an] answer”); see also Devon Energy Prod. Co., L.P. v. Mosaic Potash
Carlsbad, Inc., 693 F.3d 1195, 1203 n.4 (10th Cir. 2012) (“preemption may be invoked in . . .
federal court as an affirmative defense to the allegations in a plaintiff’s complaint”).
The same conclusion must be reached with regard to Frontier’s motion to dismiss the
state law claims as preempted by the ADA. State law “actions having a connection with or
reference to airline ‘rates, routes, or services’ are pre-empted under [the ADA].” Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384 (1992).
Here, the Court finds Frontier’s argument, that allowing a flight attendant to use an
aircraft lavatory for an extended period to pump breast milk might displace passenger service
thereby impacting an area regulated by the ADA, unpersuasive. As discussed with regard to the
FAA, the complaint contains allegations of Frontier denying accommodation requests outside an
aircraft and for pumping locations other than a lavatory while inflight. The Court agrees with
Plaintiffs in that Frontier’s position is premised upon heavily disputed facts that cannot be
adjudged at this stage of the proceedings. Thus, Frontier’s motion to dismiss the state law claims
because they are preempted by the ADA is also denied.
Having determined that there are no jurisdictional barriers concerning the subject matter
of this case, the Court now addresses whether Plaintiffs have alleged a plausible right to relief.
Dismissal Under Rule 12(b)(6)
Even though “the 12(b)(6) standard does not require that Plaintiff establish a prima facie
case in her complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th
Cir. 2012). Allegations in a complaint that are “so general that they encompass a wide swath of
conduct, much of it innocent,” are insufficient; instead, allegations must “give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Id. at 1191-92.
Title VII and CADA Claims
Because Title VII and CADA claims “rise and fall together,” the Court will examine the
state and federal claims together. Agassounon v. Jeppesen Sanderson, Inc., 688 F. App’x 507,
509 (10th Cir. 2017) (“CADA discrimination . . . claims are subject to the same legal standards
as Title VII claims.”) (citing Johnson v. Weld County, 594 F.3d 1202, 1219 n.11 (10th Cir.
In their complaint, Plaintiffs allege that Frontier’s failure to provide adequate
accommodations to pregnant and breastfeeding employees constitutes disparate treatment based
on sex and that Frontier’s policies have a disparate impact on pregnant and breastfeeding
employees. In its motion, Frontier argues the allegations fail to plausibly state a claim under
Disparate Treatment Claims
“The Pregnancy Discrimination Act [“PDA”] makes clear that Title VII’s prohibition
against sex discrimination applies to discrimination based on pregnancy.” Young v. United
Parcel Serv., Inc., 575 U.S. 206, 135 S. Ct. 1338, 1343 (2015). Thus, pursuant to Title VII,
employers must treat “women affected by pregnancy, childbirth, or other related conditions . . .
the same for all employment-related purposes . . . as other persons not so affected but similar in
their ability or inability to work.” 42 U.S.C. § 2000e(k).
A plaintiff can establish a prima facie case of pregnancy discrimination by showing, “
that she belongs to the protected class,  that she sought accommodation,  that the employer
did not accommodate her, and  that the employer did accommodate others ‘similar in their
ability or inability to work.’” Young, 135 S. Ct. at 1354.
Frontier argues that Plaintiffs have failed to identify any similarly situated employees
who were provided accommodations. (ECF No. 49 at 16.) By focusing their argument on the
fourth prong of this quadripartite test, Frontier seemingly concedes that Plaintiffs can satisfy the
other three requirements. Indeed, the PDA makes clear that Plaintiffs belong to a protected class.
Moreover, facts alleged in the complaint indicate that Plaintiffs sought and were denied
accommodations based on their pregnancy-related work limitations. Thus, the only remaining
issue is whether Plaintiffs identified instances where Frontier accommodated others “similar in
their ability or inability to work” in their complaint.
Plaintiffs allege that Frontier denied their requests for ground assignments while
providing such accommodations for flight attendants who were unable to fly based on a nonpregnancy related medical condition or disability. Specifically, Frontier provided temporary
ground positions to flight attendants who suffered various on-the-job injuries as well as
developed non-pregnancy health conditions limiting their ability to fly outside of work.
Plaintiffs, therefore, have identified instances where Frontier provided accommodations for flight
attendants similar in their inability to work.
At this stage of the proceedings, Plaintiffs sufficiently allege a plausible right to relief for
a failure-to-accommodate claim. See e.g., Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961,
978 (C.D. Cal. 2015) (denying defendants’ motion to dismiss a pregnancy discrimination claim
for failure to accommodate where the plaintiff alleged she was a “member of a protected class of
women affected by pregnancy-related conditions, that she sought accommodation for her
pregnancy-related condition, and that she was denied an accommodation . . . but that defendants
accommodate[d] other employees with disabilities or medical conditions that require[d]
reasonable accommodations”); see also Durham v. Rural/Metro Corp., 955 F.3d 1279, 1286-87
(11th Cir. 2020) (explaining that the plaintiff “satisfied the fourth prong of her prima facie case”
for failure to accommodate under the PDA where her temporary lifting restriction based on her
pregnancy was akin to that of her colleague’s lifting restriction stemming from an on-the-job
injury). Accordingly, Frontier’s motion to dismiss Plaintiffs’ disparate treatment claims is
Disparate Impact Claims
At the outset, it is important to note that “[d]isparate-impact claims may be based on any
employment policy, not just a facially neutral policy.” Adams v. City of Indianapolis, 742 F.3d
720, 731 (7th Cir. 2014) (discussing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991
(1988) (“We conclude, accordingly, that subjective or discretionary employment practices may
be analyzed under the disparate impact approach in appropriate cases.”). In the context of Title
VII, disparate impact claims “challenge ‘employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity.’” Ellis v. United Airlines, Inc., 73 F.3d 999, 1006
(10th Cir. 1996) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)).
“To establish a prima facie case of disparate impact discrimination, plaintiff must prove a
‘specific identifiable employment practice or policy caused a significant disparate impact on a
protected group.’” Chavez v. Coors Brewing Co., 176 F.3d 488 (10th Cir. 1999) (citation
Here, Frontier argues that claims four, six, eleven, and fourteen should be dismissed for
two principal reasons: (1) Plaintiffs fail to identify a specific employment practice or policy that
caused a disparate impact; and (2) Plaintiffs fail to offer any statistical data of a disparate impact.
(ECF No. 49 at 16-17.)
The Court disagrees that Plaintiffs have failed to identify any specific employment
policies that had a disparate impact. As alleged in the complaint, Plaintiffs accrue points for
pregnancy-related absences, despite Frontier’s stated policy of not assigning points for “excused”
absences, including certain recognized disability. Further, Plaintiffs allege that the harms they
suffered as a result of the Dependability Policy were disproportionate to those suffered by nonpregnant flight attendants because of the need to miss work for pregnancy-related medical care.
Thus, the Court finds the complaint identifies specific policies that have a disparate effect on
pregnant and breastfeeding employees.
The Court also disagrees that Plaintiffs have made no allegations, involving statistics or
any other form of data, with respect to any disparate impact they suffered due to pregnancy or
breastfeeding. Plaintiffs allege that all pregnant flight attendants are harmed by Frontier’s
categorical refusal to provide pregnancy-related accommodations, while zero flight attendants
who were not pregnant are impacted by this policy. Plaintiffs also claim that “virtually all”
breastfeeding flight attendants who require accommodations when returning to work are harmed
by Frontier’s failure to provide adequate pumping accommodations while zero flight attendants
who are not breastfeeding are subject to or impacted by this policy. Thus, the complaint
provides “fair notice” of the disproportionate impact of Frontier’s employment policies.
Accordingly, Frontier’s motion to dismiss Plaintiffs’ disparate impact claims is denied.
Frontier asks the Court to dismiss the WANMA claim, arguing that Plaintiffs did not
allege a failure or refusal to provide rooms for lactation and that Frontier is not required to
provide immediate access to a lactation room under the statute. (ECF No. 49 at 17.) Plaintiffs
argue that their allegation is not that Frontier was required to provide immediate access to a
lactation room, but rather that they lacked any access to a location to pump breast milk at most
airports to which Frontier flies. (ECF No. 54 at 13.) Specifically, Frontier never informed Ms.
Schwartzkopf of any lactation rooms at Denver International Airport, its principal hub. (Id.)
Moreover, when Frontier did provide lactation rooms for employee use, it denied requests for
break time so that employees would have adequate time to express breast milk. (Id.)
Colorado law requires employers to “provide reasonable unpaid break time or permit an
employee to use paid break time, meal time, or both, each day to allow the employee to express
breast milk” and the “employer shall make reasonable efforts to provide a room or other location
in close proximity to the work area, other than a toilet stall, where an employee can express
breast milk in privacy” for up to two years after the child’s birth. Colo. Rev. Stat. § 8-13.5104(1)-(2).
Because an inherent part of a flight attendant’s job is to travel out-of-state, it is difficult
to frame the parameters of their work area and even more difficult to pinpoint what constitutes a
close proximity to that area. Frontier flight attendants, even though based in Colorado, spend
much of their workday inflight, with limited, if any, private space, other than the lavatory to
pump breast milk. Once reaching a terminus outside Colorado, it would seemingly be difficult
for Frontier to provide accommodations at each airport to which it flies. While the statute does
not require it to do so, Frontier must still make a reasonable effort to provide a location or other
accommodation for employees to express breastmilk, and as indicated in the complaint, Frontier
has made no such effort.
Of equal concern, Frontier has allegedly failed to provide breastfeeding flight attendants
who resort to pumping breast milk in airport restrooms break time necessary to do so as
prescribed under the statute. As explained by Ms. Rewitzer in the complaint, Frontier refuses to
offer any accommodations to nursing flight attendants or provide break times between flights to
pump and flight attendants who have disclosed to Frontier that they are breastfeeding, have been
prohibited from using break time to pump breast milk. (ECF No. 1 at ¶¶ 75, 83.) Ultimately,
Plaintiffs have alleged a plausible right to relief.3 Accordingly, Frontier’s motion to dismiss
Plaintiffs’ WANMA claim is denied.
Timeliness of Plaintiffs’ Claims
Frontier argues that a portion of Plaintiffs’ claims under Title VII and CADA and that
Plaintiffs’ FMLA claim are time barred by the respective statute of limitations. (ECF No. 49 at
18.) In response, Plaintiffs argue that their Title VII and CADA claims should be allowed to
proceed based on the single-filing rule or continuing violation doctrine because they seek
forward-looking relief based on discriminatory policies, and that their FMLA claims should
procced because the applicable statute of limitations is three, not two, years. (ECF No. 54 at 1516.)
The statute of limitations is an affirmative defense and is more aptly raised in the
“defendant’s answer than through a motion to dismiss.” Kerby v. Commodity Res. Inc., 395 F.
Supp. 786, 791 (D. Colo. 1975); see also Fed. R. Civ. P. 8(c)(1). However, “when the dates
given in the complaint make clear that the right sued upon has been extinguished,” the issue may
Frontier also argues that it should be exempt from complying with WANMA since the law provides no express
language that it applies extraterritorially. The Court finds it need not decide that issue at this stage of the
proceedings as the facts alleged in the complaint, viewed in a light most favorable to Plaintiffs, indicate that at least
a portion of Ms. Rewitzer’s requests for regular breaks to pump breast milk and for convenient pumping locations
pertained to accommodations in Colorado.
Frontier further argues that accommodating certain breastfeeding requests would impose an undue hardship. The
Court also finds that it need not decide that issue at this stage of the proceedings because undue hardship is an
affirmative defense that Frontier bears the burdening of establishing at trial rather than on the pleadings. See ExbyStolley v. Bd. of Cty. Commissioners, 979 F.3d 784, 822 (10th Cir. 2020) (“In short, undue hardship is an affirmative
defense, and, consequently, the [defendant] bears the burden to establish it at trial.”).
be raised in a motion to dismiss. Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4
(10th Cir. 1980). That is not the case here.
Based on the limited record before the Court and the nature of the claims asserted, it is
difficult to decern precisely when the statute of limitations began to run for Plaintiffs’ claims.
Moreover, the fact that Plaintiffs alleged the discriminatory policy or practice is ongoing and
evoke the single-filing exception and the continuing violation doctrine indicate that resolution of
the statute of limitations affirmative defense with respect to Plaintiffs’ Title VII and CADA
claims is better left to some factual development. See Animal Care Sys., Inc. v. Hydropac/Lab
Prod., Inc., No. 13-CV-00143-MSK-BNB, 2015 WL 1469513, at *12 (D. Colo. Mar. 26, 2015)
(declining to resolve a statute of limitations defense on a motion to dismiss where the allegations
were “not specific enough to resolve what precisely forms the basis or timing” of when
plaintiff’s “claims accrued, and therefore, when the relevant statute of limitations attached); see
also Mearin v. Vidonish, No. Civ. A. 08-597, 2009 WL 5166258, at *3 (W.D. Pa. Dec. 29, 2009)
(finding that “dismissal on the basis of the statute of limitations is not appropriate but is better
left to some factual development” where plaintiff evoked the doctrine of equitable tolling in his
The same is true for Plaintiffs’ FMLA claim. Typically, a FMLA claim must be brought
within “2 years” of the alleged violation. 29 U.S.C. § 2617(c)(1). That timeframe, however, is
extended to “3 years” where a claim is based on a “willful violation.” Id. § 2617(c)(2).
Willfulness, in the FMLA context, means “a plaintiff must demonstrate that his employer ‘knew
or showed reckless disregard’ for whether its conduct was prohibited.” Bass v. Potter, 522 F.3d
1098, 1104 (10th Cir. 2008) (citation omitted).
Here, Plaintiffs allege that they used FMLA leave based on the qualifying condition of
pregnancy, Frontier was aware the Plaintiffs were pregnant, and that Frontier interfered with
Plaintiffs’ rights to FMLA leave by assessing them points under the Dependability Policy. At
this stage of the proceedings, these allegations are sufficient to create a plausible claim of a
willful FMLA violation. See Ramsey v. Advance Stores Co., No. 15-4854-RDR, 2015 WL
3948119, at *5 (D. Kan. June 29, 2015) (denying a motion to dismiss an FMLA claim alleging
willfulness where the complaint stated plaintiff was fired after taking leave even though she was
eligible for FMLA and defendant was aware of plaintiff’s qualifying condition); see also Hudson
v. Indep. Blue Cross, LLC, No. CV 18-3631, 2019 WL 1045303, at *3 (E.D. Pa. Mar. 5, 2019)
(“At the motion to dismiss stage, courts often take a less stringent approach in assessing whether
an alleged FMLA violation is willful.”)
Accordingly, Frontier’s motion to dismiss with regard to the statute of limitations is
Plaintiffs’ Class Claims
For its last attack on the sufficiency of the complaint, Frontier argues that the proposed
classes are facially overbroad and should be stricken or dismissed.4 (ECF No. 49 at 20.)
Plaintiffs contend that this argument is premature, or, in the alternative, that the class can be
readily ascertained by objective criteria. (ECF No. 54 at 22-23.)
In general, a motion to strike is “a drastic remedy . . . disfavored by the courts.” Francis
v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 3733023, at *1 (D. Colo. Sept. 16,
2010) (citation and quotation omitted). Motions to strike class allegations at the pleading stage
are subject to a high standard of proof because “it requires a reviewing court to ‘preemptively
terminate the class aspects of . . . litigation, solely on the basis of what is alleged in the
While Frontier brings its motion to strike under Rule 23(d)(1)(D), it is proper under Rule 12(f).
complaint, and before plaintiffs are permitted to complete the discovery to which they would
otherwise be entitled on questions relevant to class certification.’” Id. (quoting Bryant v. Food
Lion, Inc., 774 F.Supp. 1484, 1495 (D.S.C. 1991).
To meet this stringent burden, Frontier must “demonstrat[e] from the face of plaintiffs’
complaint that it will be impossible to certify the classes alleged by the plaintiffs regardless of
the facts the plaintiffs may be able to prove.” Id. (emphasis and alternation in original). Frontier
has not done so here.
As alleged in the complaint, Plaintiff will seek to certify two classes of plaintiffs: (1) a
pregnancy class and (2) a breastfeeding class. (ECF No. 1 at ¶ 144.) Contrary to Frontier’s
argument that each putative class is overboard because they may include plaintiffs who were not
injured by its policies, “certification requirements neither require all class members to suffer
harm or threat of immediate harm nor Named Plaintiffs to prove class members have suffered
such harm.” DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010). Plaintiffs
allege that they can meet the requirements for class certification under Rule 23, and the facts
supporting that contention are to be viewed as true at this stage of the proceedings. Francis,
2010 WL 3733023, at *1 (explaining that “even at the class certification stage, courts must
generally accept as true the allegations supporting certification and must not base their
determination on whether the class will ultimately succeed in establishing each element
necessary to prove its claims”) (citation omitted).
Thus, the Court finds Frontier has not shown it is impossible to certify the classes alleged
in the complaint. See e.g., Friedman v. Dollar Thrifty Auto. Grp., Inc., No. 12-CV-02432-WYDKMT, 2013 WL 5448078, at *4 (D. Colo. Sept. 27, 2013) (declining to strike class allegations on
the pleadings because defendant had “not shown that the claims at issue [were] impossible to
certify). Accordingly, Frontier’s motion to dismiss with respect to the class claims is denied.
Based on the forgoing, Frontier’s Motion to Dismiss (ECF No. 49) is DENIED.
DATED this 14th day of July, 2021.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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