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Wednesday, October 23, 2024

 

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Court of Appeal:

Lawsuit Under FEHA Against
United Airlines Is Reinstated

Segal
Says Triable Issues of Fact Exist as to Whether Discharge of Flight Attendant,
in Part, for Online Posting of Photos of Herself in Uniform Next to Depictions
of Her in Scanty Attire Constituted Gender Discrimination

 

By
a MetNews Staff Writer

 

The
Court of Appeal for this district yesterday reinstated causes of action brought
by a flight attendant against United Airlines based being fired after she
protested that an order to remove from her Instagram account photos of herself
in uniform, placed next to ones of her in a bikini and other revealing attire,
was “sexist and discriminatory,” and failed to comply with it.

Div.
Seven, in an unpublished opinion by Justice John L. Segal, reversed a summary
judgment granted by Los Angeles Superior Court Judge Richard L. Fruin in favor
of the airline, directing that, on remand, United’s motion be denied as to
causes of action under the Fair Employment and Housing Act (“FEHA”) for gender
discrimination, workplace harassment and retaliation, and for failure to
prevent that conduct.

Segal
said that evidence put forth by plaintiff Alexa Wawrzenski shows that there are
triable issues of act as to FEHA causes of action, but declared that Fruin
correctly found causes of action for whistleblower retaliation, wrongful
termination, and intentional infliction of emotional distress to be
unsupported, and properly ruled that punitive damages are unavailable.

Meeting Held

Wawrzenski
participated on July 2, 2020, along with two members of management and a union
representative, in what was termed an “investigative meeting.” At that meeting,
the flight attendant repeated complaints she had previously voiced as to
harassment in the form of constant comments about the shape of her body—she
says she has a slim waist and “larger hips”—and protested that United’s social
media policy was not enforced as to male employees to same extent that it was
as to female employees.

Under
the policy, applicable to both sexes, in conducting social networking
activities while “on or off the job,” the employee must “[u]se common sense and
good judgment.” It’s specified: “The fit of the uniform must reflect a
professional appearance.” Applicable to females, it’s specified that a skirt or
dress “may not exceed 1 inch above or 1 inch below the crease of the back of
the knee.”

Termination Letter

On
July 14, Wawrzenski was fired. A termination letter says:

“In
the meeting, you did not take responsibility for your actions nor did you
acknowledge an understanding of why your posting photos in uniform, while
soliciting subscriptions to your private content site presented a problem for
United Airlines. You were instructed to remove the photos of you in uniform…by
midnight on July 2. You did not remove all the photos as directed.

“…You
posted suggestive photographs, in conjunction with photographs of yourself
posing in United Airlines uniform on your public Instagram account, with a link
soliciting to join a private content, fee-required site.”

Evidence of Discrimination

Segal
said there are triable issues as to whether the social media policy is enforced
in a manner that discriminates against women in United’s employ. He noted that
postings by three make employees in contravention of the company’s policy were
not dealt with harshly.

The
jurist remarked:

“While
United identifies some differences between Wawrzenski’s conduct and experience
and those of the male employees, there were also many similarities. For
example, all four social media accounts included pictures of United employees
in uniform and partially nude or in swimwear, two of the three comparators’
accounts included links or references to monetized accounts, and the same
social media policy applied to all four employees for the same purposes.”

He
wrote that conduct on the part of that Wawrzenski and the three male employees
was similar enough that a reasonable judge of the facts could discern gender
discrimination. Addressing the cause of action for harassment, Segal wrote:
“Wawrzenski’s evidence of unwanted comments concerning her body and the way her
body looked in her uniform create triable issues of material fact regarding
whether the comments were sufficiently severe or pervasive.”

He
pointed to Government Code §12923(a) which says that the “right to work in a
place free of discrimination” is denied “when the harassing conduct
sufficiently offends, humiliates, distresses, or intrudes upon its victim, so
as to disrupt the victim’s emotional tranquility in the workplace, affect the
victim’s ability to perform the job as usual, or otherwise interfere with and
undermine the victim’s personal sense of well-being.”

Segal
found that “[t]he evidence Wawrzenski submitted met this low bar,” pointing
out:

“In
particular, the evidence that coworkers and other United employees made
offensive comments about Wawrzenski’s body on a monthly basis, that flight
attendants and pilots commented on her ‘butt,’ that her supervisor and others
made her change uniforms several times based on unfounded accusations, and that
her workplace became ‘miserable’ created triable issues of material fact
regarding whether her emotional tranquility was disturbed and her sense of
well-being was undermined in the workplace.”

He
went remarked:

“Contrary
to United’s suggestion, that some of the coworkers who made offensive comments
were women does not mean the comments were not sufficiently ‘sexual’.” 

Wawrzenski
also sued for retaliation in contravention of Government Code §12940(h) which
renders it unlawful “[f]or any employer…to discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices
forbidden under this part or because the person has filed a complaint,
testified, or assisted in any proceeding under this part.”

Segal
observed: “[A]a reasonable trier of fact could find that, even if Wawrzenski’s
Instagram account with its link to a subscription-based OnlyFans page violated
United’s social media policy, United retaliated against Wawrzenski by
terminating her employment after she complained about the disparate enforcement
of that policy between men and women.”

He
set forth:

“Because
we reverse that ruling on the underlying causes of action, and because United
identifies no other reason for affirming the trial court’s order, we also
reverse the order granting United’s motion for summary adjudication on
Wawrzenski’s failure-to-prevent cause of action.”

The
case is
Wawrzenski v. United Airlines,
B327940.

Representing
Wawrzenski were Glenn A. Danas, Katelyn M. Leeviraphan, Ashley M. Boulton of
the Clarkson Law Firm in Malibu and Carney Shegerian, Mahru Madjidi, and
Anthony Nguyen of the West Los Angeles firm of Shegerian & Associates.
Acting for United were Michele Haydel Gehrke of the San Francisco office of
Reed Smith and Kasey J. Curtis and Brian K. Morris of the firm’s downtown Los
Angeles office.

 

Copyright 2024, Metropolitan News Company

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