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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 Seven, in an unpublished opinion by Justice John L. Segal, reversed a summary judgment granted by Los Angeles Superior Court Judge Richard L. Fruin in favor of the airline, directing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.
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