Wawrzenski v. United Airlines CA2/7 ( 2024 )

Filed 10/22/24 Wawrzenski v. United Airlines CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ALEXA WAWRZENSKI, B327940
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 20STCV43930)
UNITED AIRLINES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard L. Fruin, Judge. Reversed with
directions.
Clarkson Law Firm, Glenn A. Danas, Katelyn M.
Leeviraphan, Ashley M. Boulton; Shegerian & Associates, Carney
Shegerian, Mahru Madjidi, and Anthony Nguyen for Plaintiff and
Appellant.
Reed Smith, Michele Haydel Gehrke, Kasey J. Curtis, and
Brian K. Morris for Defendant and Respondent.
INTRODUCTION
Alexa Wawrzenski was a flight attendant employed by
United Airlines, Inc. United investigated and ultimately fired
her for having a social media account featuring pictures of herself
in uniform and wearing a bikini, with a link to a subscription-
based account advertised as providing “[e]xclusive private
content you won’t see anywh[ere else].” Wawrzenski sued
United, alleging that she endured years of gender discrimination
and harassment, that United retaliated against her for
complaining about the discrimination and harassment by
terminating her employment, that United’s investigation into her
social media and her termination discriminated against her as a
woman, that United failed to prevent its employees’ misconduct,
and that United intentionally caused Wawrzenski emotional
distress.
United moved for summary judgment or in the alternative
for summary adjudication on all causes of action and on
Wawrzenski’s claim for punitive damages. The trial court
granted United’s motion in its entirety, and Wawrzenski
appealed from the ensuing judgment.
We conclude the trial court erred in granting United’s
motion for summary adjudication on Wawrzenski’s causes of
action under the Fair Employment and Housing Act (Gov. Code,
§ 12900 et seq. (FEHA)).1 We also conclude, however,
Wawrzenski forfeited her challenge to the trial court’s rulings on
her causes of action for retaliation under Labor Code
section 1102.5, wrongful termination in violation of public policy,
1 Undesignated statutory references are to the Government
Code.
2
and intentional infliction of emotional distress by not challenging
one of the grounds for those rulings. And we conclude
Wawrzenski forfeited her argument the trial court erred in
granting United’s motion for summary adjudication on her claim
for punitive damages by failing to cite any evidence in support of
her contentions on appeal. Therefore, we reverse the judgment
and the order granting United’s motion for summary judgment.
We direct the court to enter a new order denying United’s motion
for summary judgment, denying United’s motion for adjudication
on Wawrzenski’s causes of action under FEHA, and granting the
motion on her other causes of action and her claim for punitive
damages.
FACTUAL AND PROCEDURAL BACKGROUND
A. United Hires Wawrzenski as a Flight Attendant
Subject to Certain Employment Policies
Wawrzenski began working for United in October 2015 as a
flight attendant based in Los Angeles. Throughout her
employment Wawrzenski was a member of the Association of
Flight Attendants, and a collective bargaining agreement
prescribed the terms and conditions of her employment.
As a United employee, Wawrzenski benefitted from and
was subject to certain employment policies. United’s Working
Together Guidelines “explain what actions are expected of
[employees] and . . . communicate a clear understanding of what
it means to be employed by United.” The Guidelines include four
categories: dignity and respect, honesty, professionalism, and
responsibility. To promote “dignity and respect,” the Guidelines
state: “We’re committed to creating a workplace free from
3
harassment and discrimination (treating someone less favorably).
We defend our employees from harassment and discrimination
based on their . . . gender . . . or any other protected
characteristic under applicable law.” The Guidelines further
state “[a]ny offensive behavior or discrimination (verbal, visual or
physical) directed toward a person because of any protected
characteristic violates this policy” and subjects employees to
“corrective action.” The Guidelines encourage employees to
“report concerns promptly until resolved” and to consider
reporting offensive workplace behavior to “a member of [their]
management team,” the human resources department, or
United’s Ethics and Compliance Helpline. United prohibits
retaliation against employees for reporting misconduct.
United also has social media guidelines that apply to
employees’ social networking activities while “on or off the job,
including social networking you use without a name or under a
false name.” The social media guidelines encourage employees to
use “good judgment” and to ensure posts have “a positive effect on
United’s business interests and reputation.” Photographs of
employees in uniform must comply with United’s uniform
standards, which ensure flight attendants’ “look is consistent for
every customer.” For female flight attendants, the length of a
skirt or dress “may not exceed [one] inch above or [one] inch
below the crease of the back of the knee.”
Finally, United’s Code of Ethics and Business Conduct
includes policies regarding conflicts of interest. The Code defines
a conflict of interest as “any situation or activity that involves or
appears to involve a conflict between [an employee’s] personal or
financial interests and United’s interest.” Examples of potential
conflicts of interest include “outside employment.” The Working
4
Together Guidelines on honesty state United expects employees
to “avoid conflicts of interest and the appearance of them.”
B. Supervisors and Coworkers Comment on
Wawrzenski’s Body and Uniform
Wawrzenski describes her “body type” as having a very
small waist in proportion to her lower body and “larger hips.”
She claims that throughout her employment she experienced
harassing, derogatory, and objectifying comments about her body
and the way she looked in her uniform. The types of comments
she heard “several times a month” included “offensive jokes”
about her “‘breaking necks’” of male employees who looked at her,
remarks about her “‘butt,’” and questions about where she had
her “‘surgery done’” and how much she paid for “her body.”
Wawrzenski said that “at times” she experienced “an unwanted
sexual advance.”
For example, in May 2016 manager Marie Nakasone
“cleared” Wawrzenski to board a flight, but a supervisor, Betsy
Gallo, stopped Wawrzenski and said, “Your body looks
inappropriate in the uniform.”2 Nakasone later informed
Wawrzenski that Gallo issued Wawrzenski an “‘appearance
infraction.’”
Nakasone met with Wawrzenski, a supervisor, and a union
representative. At the meeting, Wawrzenski wore the same dress
uniform she wore the day Gallo objected to Wawrzenski’s
appearance, and Nakasone said Wawrzenski’s dress complied
with the uniform policy. Wawrzenski complained that Gallo’s
comment was “sexist” because it was directed at her body and
2 Flight attendants report to a supervisor, who reports to a
manager, who reports to a director at each base of operations.
5
that she was subject to greater “scrutiny” than male flight
attendants, though she provided no evidence for the latter claim.
Nakasone ended the meeting, and according to Wawrzenski,
United did not investigate her complaint.
In July 2016 Nakasone “scolded” Wawrzenski for wearing a
dress that was too short and said Wawrzenski’s dress “‘rides up’”
when she walks. Wawrzenski demonstrated for Nakasone that
her skirt length complied with United’s uniform policy.
Nakasone replied Wawrzenski had “‘hips’” and suggested
Wawrzenski wear a different uniform to avoid “running into the
issue with anybody else.” Nakasone provided Wawrzenski a
size 8 “loaner uniform” to replace the uniform Wawrzenski was
wearing, which was a size 2 or size 4.
In late 2016 or 2017 manager Gail Korn asked Wawrzenski
to change her uniform when Wawrzenski had only 15 to
20 minutes left on an “airport alert” shift (= a shift where the
flight attendant is waiting to see if he or she is needed on a
flight). Without explanation, Korn asked Wawrzenski to go see
supervisor Soledad Serrano-Cobo, who accompanied Wawrzenski
to a restroom with a loaner uniform. Wawrzenski changed into
the loaner uniform, which she claims was identical to the uniform
she had been wearing. Wawrzenski said that she complained to
Serrano-Cobo that making her change was “sexist,” but that
Serrano-Cobo did not respond.
Also in 2017 a pilot treated Wawrzenski differently from
male flight attendants by “scolding” her for her “appearance.”
According to Wawrzenski, the captain originally complained
about her small stud earrings, but after most passengers had
deplaned, the captain “blocked” Wawrzenski’s way and criticized
6
her performance. A lead flight attendant stepped in and said
Wawrzenski performed her job well.
In late 2019 a gate agent tried to delay a flight to allow a
supervisor to approve Wawrzenski’s appearance. A coworker
heard the gate agent say, “‘the little blonde, white girl . . . .
Where did she come from, the school of Kardashian? She needs
to get her money back for her body.’” No one came to assess
Wawrzenski’s appearance, but Wawrzenski complained to
Chelsea Nunn about the incident.
In late 2019 Nunn called Wawrzenski after receiving a
report from a gate agent supervisor that Wawrzenski was not in
uniform for a flight to Australia. Wawrzenski told Nunn she
wore her “black V-neck” uniform, and Nunn dropped the inquiry.
Wawrzenski complained to Nunn during the call that she was
being “targeted” for uniform (non)compliance because she was
female. She said “males weren’t being subjected to the same
scrutiny and level of treatment as females.” Nunn told her that
she was a “young, attractive female,” that Nunn sees similar
behavior “at the base and to kind of ‘get used to it,’” and that
“‘this is United.’” Nunn “conveyed” that Wawrzenski would
experience “a lot of hate” because she was young and attractive.
Wawrzenski told Nunn “this was sexist, and this was completely
unfair, and it makes coming to work miserable because of the
unequal treatment between males and females, and [Nunn] just
kind of sighed.”
In early 2020 a male flight attendant said to Wawrzenski
in the back of a plane, “‘It’s not every day I get to work with a
pretty girl.’” The male flight attendant asked her, “‘Is your butt
real?’” and “‘How did you get a butt like that?’” Wawrzenski
complained to the lead flight attendant, who reassigned
7
Wawrzenski to the front of the plane. Around the same time, a
coworker on a different flight told Wawrzenski that another flight
attendant “was saying negative things” about how Wawrzenski
looked “as a female” and that Wawrzenski should be “careful”
because she might unwittingly seduce a male passenger in first
class who was traveling with another woman. It is unclear
whether Wawrzenski told her supervisor or anyone else in
management about these incidents.
In March 2020 two flight attendants on a “deadhead” flight
(= a flight that transports crew members to another destination
for different flight)3 accused Wawrzenski of dressing
inappropriately. Wawrzenski was wearing black “golf type
pant[s]” and a “regular black t-shirt with a crewneck sweater,” an
outfit she had worn on multiple deadhead flights. The flight
attendants “made” her change into jeans. Shortly after this
incident, Nunn called Wawrzenski and said she had received a
complaint Wawrzenski had worn a “crop top” showing her
stomach on a deadhead flight. Wawrzenski told Nunn what she
actually wore, and Nunn “dropped the issue.” Wawrzenski
complained to Nunn the “level of . . . targeting” seemed to be
escalating. In that conversation or a later one Wawrzenski told
Nunn that she was “being ‘discriminated’ against and ‘harassed’
because [she] was a female and because of [her] female body” and
that United was “not enforcing policies consistently between
males and females.” To Wawrzenski’s knowledge, United never
investigated her complaints.
3 See Bernstein v. Virgin America, Inc. (N.D.Cal. 2017)
227 F.Supp.3d 1049, 1056 (the time a flight attendant spends
traveling as a passenger “on a flight to arrive at an airport for an
assigned flight” is called “‘deadheading’”).
8
C. United Investigates Wawrzenski’s Social Media
Accounts
On June 11, 2020 United’s Ethics and Compliance office
received an anonymous message about Wawrzenski’s Instagram
account. The message stated, “I came across this profile on
Instagram, Flight Attendant is using her platform to get people
to pay for x rated website, she’s in United uniform in her photos
and next to them are photos almost naked obviously soliciting.”
The message included three screenshots. The first showed the
homepage for Wawrzenski’s Instagram account, which included a
Linktree link4 connecting users to Wawrzenski’s other social
media accounts, and eight photographs of Wawrzenski. Among
the eight photographs were two of Wawrzenski wearing a United
flight attendant uniform and six of her wearing a bikini, hosiery,
or tops showing cleavage. The second screenshot showed an
Instagram post of Wawrzenski in a hotel room wearing a United
flight attendant uniform. The third screenshot showed the
homepage for Wawrzenski’s OnlyFans account,5 accessible
4 “Linktree allows you to create a personalized and
customizable page that houses all the important links that you
want to share with your audience. It’s a link-in-bio solution that
can be used on social platforms like Instagram . . . .”
(<https://linktr.ee/help/en/articles/5434130-what-is-linktree>
[as of October 21, 2024], archived at <https:perma.cc/B87M-7-
AQA>.)
5 OnlyFans is “a ‘social media and creation platform through
which consumers subscribe to original content uploaded by
OnlyFans creators.’” (Muto v. Fenix International Limited
(C.D.Cal., May 2, 2024, No. 5:22-cv-02164-SSS-DTBx)
2024 WL 2148734, at p. 1, cleaned up; see Woodson v. McCoy
9
through the Linktree link on Wawrzenski’s Instagram account.
Wawrzenski’s OnlyFans homepage stated, “Exclusive private
content you won’t see anywh[ere else],” with a link to “More info.”
Wawrzenski’s OnlyFans homepage advertised access to her
OnlyFans content for a monthly fee of $19.99. The anonymous
message did not include any content from Wawrzenski’s
OnlyFans account to confirm whether it included “x rated”
material.
In response to the anonymous message, United assigned
Los Angeles Inflight Supervisor Peter Mark to investigate. On
June 30, 2020 Mark issued Wawrzenski a letter of investigation,
as required by the collective bargaining agreement. The letter
stated a meeting scheduled for July 2, 2020 would investigate
“correspondence received by United’s Ethics and Compliance
Office about [Wawrzenski’s] posting suggestive photographs on
[her] public Instagram account and soliciting subscriptions to
[her] private content site for a fee.” The letter said Wawrzenski
appeared in her United uniform in some of the photographs.
(S.D.N.Y., Feb. 16, 2023, No. 22-CV-7714 (LTS)) 2023
WL 2088175, at p. 2, fn. 3 [“OnlyFans is a social media platform
that is ‘inclusive of artists and content creators from all genres
and allows them to monetize their content while developing
authentic relationships with their fanbase’”].) OnlyFans also
“serves as a platform for pornography.” (G. Sitaraman,
Deplatforming (2023) 133 Yale L.J. 497, 531; see L. Diaz,
Intellectual Property Rights in Pornographic Content Creation:
Are Your Onlyfans Your Only Fans? (2024) 48 Nova L.Rev. 309,
313 [“OnlyFans has attracted many porn stars and amateur porn
personalities who wish to share exclusive content with their fans
in exchange for money.”].)
10
Wawrzenski and Mark attended the July 2, 2020 meeting,
along with Serrano-Cobo and Wawrzenski’s union representative,
Kimberly Burckhalter.6 By all accounts the meeting was
contentious. According to Burckhalter, Mark and Serrano-Cobo
informed Wawrzenski that posting pictures of herself in her
uniform alongside pictures of her wearing swimsuits violated
United’s policy. Serrano-Cobo described Wawrzenski as “scantily
clad” in a picture of Wawrzenski in a thong bikini. Burckhalter
said she told Mark and Serrano-Cobo “this is what [this]
generation of the world is doing now. They’re all posting . . . their
travels and, you know, they’ve got swimsuits on.” Wawrzenski
said other flight attendants, and “[e]ven the brand ambassadors
that United has chosen, they have these photos of themselves
. . . in their uniforms on their personal [social media] pages.”
According to Wawrzenski, Mark and Serrano-Cobo
identified several photographs as “suggestive” and “explicit,”
including a picture of Wawrzenski on the beach in a bikini with
her back to the camera. Wawrzenski asked Serrano-Cobo what
was suggestive about the photographs, and Serrano-Cobo said
“posing in swimwear.” Wawrzenski disagreed and said her father
took several of the photographs. Wawrzenski also contested
Mark’s and Serrano-Cobo’s use of the word “soliciting” to describe
Wawrzenski’s social media activity. According to Wawrzenski,
Mark and Serrano-Cobo “insinuated” she was a prostitute by
repeatedly stating that her photographs were suggestive, that
she was “selling” herself, that she “had too much skin showing,”
and that the attire she wore depicted a “sexual image that
6 Burckhalter’s name appears in the record spelled
“Burckhalter” and “Burkhalter.” We adopt the spelling from her
deposition transcript.
11
solicits” her. Burckhalter said she did not recall Mark or
Serrano-Cobo referring to Wawrzenski as a prostitute.
Mark asked Wawrzenski to show him the contents of her
OnlyFans account, but Wawrzenski refused. Wawrzenski told
Mark there was nothing related to United on her OnlyFans
account, which focused on “lifestyle, workout, fitness, and
nutrition content.” Burckhalter told Mark that she had reviewed
Wawrzenski’s OnlyFans account and did not see any
“inappropriate” pictures on it. She said the pictures on
Wawrzenski’s OnlyFans account were similar to those on her
Instagram account, and Burckhalter did not remember seeing
any photographs of Wawrzenski in her United uniform on
Wawrzenski’s OnlyFans account.
Mark reportedly told Wawrzenski that generating income
from her OnlyFans account was a conflict of interest.
Wawrzenski said Mark also claimed an Instagram post from
spring 2020 showing Wawrzenski in uniform with a message
urging the public not to travel during the COVID pandemic was a
potential conflict of interest. That message stated “now [is] not
the time to book your $50 round trip spring break travel [emoji]
please for the sake of everyone we are out here jeopardizing our
health to bring people safely home and we kindly ask YOU stay
safe at home and do not contribute to the germs and virus
spreading out here.”
During the meeting Wawrzenski complained about feeling
harassed by people making comments about the shape of her
body, but she did not provide specific examples of past incidents.
She also stated she believed United would not have received the
anonymous complaint about her social media if she were male.
Wawrzenski also complained United did not enforce its social
12
media policy consistently for male and female employees, but she
did not identify specific accounts. Mark responded by saying the
investigation was about her activities and not those of other
employees. Mark and Serrano-Cobo gave Wawrzenski
information about how to make a complaint to Stephanie Francis
in the human resources department. Wawrzenski said that she
left two voice mail messages for Francis after the July 2, 2020
meeting, but that Francis did return her calls.
Toward the end of the six-hour meeting Mark asked
Wawrzenski to remove, by midnight, all photographs showing her
in a United uniform from her Instagram account. According to
Burckhalter, Mark said Wawrzenski’s “‘personal and United
work should not be brought together.’” Wawrzenski protested,
stating that “males are up on social media . . . posting nudity,
Speedos, swimwear, less than clothing, and . . . [y]ou’re not
investigating them.” Wawrzenski said she asked Mark if United
was asking “everyone . . . to remove their photos,” and Mark
replied, “‘They are not under the same umbrella.’”7 Wawrzenski
complained the request was “sexist and discriminatory,” but she
agreed to remove the photographs.
Mark also asked Wawrzenski to write a statement
summarizing what occurred during the meeting. Wawrzenski’s
initial statement included complaints of harassment and
discrimination based on her “looks” and gender. It also stated
that Serrano-Cobo referred to one of Wawrzenski’s photographs
as “‘explicit’” and that Mark “stated his opinion [Wawrzenski’s]
photos are not suggestive.” Wawrzenski’s statement reiterated
her concerns that the use of the term “soliciting” suggested she
7 This comment will have some significance in Wawrzenski’s
lawsuit against United.
13
was a prostitute and that neither Mark nor Serrano-Cobo
responded when Wawrzenski asked if United was calling her a
prostitute. According to Wawrzenski, Mark asked her to change
her statement to eliminate her complaints of discrimination and
disparate treatment, references to his and Serrano-Cobo’s
opinions about Wawrzenski’s photographs, and references to
prostitution. Wawrzenski said she revised her statement to
remove any reference to Mark’s opinion about her photographs
because otherwise he would not have let her leave the meeting,
but the revised statement retained her complaints of harassment
and discrimination and the references to prostitution.
Soon after the July 2, 2020 meeting Mark informed
manager Clarissa Perez about Wawrzenski’s discrimination
complaint. Perez was not aware of any investigation into
Wawrzenski’s complaint, but she said it “should have been
investigated.”
D. United Terminates Wawrzenski’s Employment
On July 7, 2020 Mark and Serrano-Cobo met with a
management team to discuss the results of their investigation.
Shortly after the meeting, Mark indicated in a text message he
was willing to discipline Wawrzenski with a warning of “PW4,”
United’s highest level of “Performance Warning” under its
progressive discipline policy.
The next day, however, Mark learned Wawrzenski had
failed to remove one photograph of herself in uniform from her
Instagram account. Mark approached Burckhalter about the
omission, and Burckhalter told Mark that she had reviewed
Wawrzenski’s account and that Wawrzenski had complied with
Mark’s request. Mark said, “‘No. There’s one that looks like it’s
14
filtered. It’s very light.’” Burckhalter said she reviewed
Wawrzenski’s account again and saw the photograph
Wawrzenski failed to take down. She described it as “so filtered
that . . . [y]ou can’t even tell that it’s blue until you look like
really, really closely you notice she’s in her uniform.”
Burckhalter said to Mark, “‘So she missed one photo. . . . Let me
get in touch with her and have her remove that photo.’”
Wawrzenski claimed that she inadvertently failed to remove that
one photograph from her account or that it somehow “popp[ed]
back up.” Burckhalter agreed it was a mistake.
Mark decided to terminate Wawrzenski’s employment
rather than issue a warning. Mark informed the management
team that he recommended termination because Wawrzenski
violated United’s social media policy, the Working Together
Guidelines, and the Code of Ethics and Compliance (for conflict of
interest) and because she failed to comply with his instruction to
remove all photographs of her in uniform from her Instagram
account. On July 9, 2020 Mark met with the management team
to discuss his recommendation. According to the senior manager
for labor relations, Elizabeth Cavanagh, Mark had ultimate
decisionmaking authority, but he was “vetting his finding” with
others, who agreed with his decision to terminate Wawrzenski’s
employment.
On July 14, 2020 Mark and Serrano-Cobo met with
Wawrzenski and Burckhalter to inform Wawrzenski that United
was terminating her employment. A termination letter issued to
Wawrzenski on July 17, 2020 identified four reasons for
terminating her employment: (1) Wawrzenski “posted suggestive
photographs, in conjunction with photographs of [her]self posing
in United Airlines uniform on [her] public Instagram account,
15
with a link soliciting to join a private content, fee-required site”;
(2) Wawrzenski “failed to comply with [Mark’s] instructions . . . to
remove the photos [of her] in uniform . . . by midnight on July 2,
2020”; (3) Wawrzenski violated the Working Together Guidelines
governing professionalism (failing to “act in ways that reflect
favorably on the Company”), responsibility (failing to use “good
judgment in all decisions”), honesty (failing to “[b]e truthful in all
communications” and avoiding “conflict of interest and the
appearance of them”), and social networking guidelines (failing to
post content that has only “a positive effect on United’s business
interests and reputation”); and (4) Wawrzenski created a “direct
conflict of interest with the Company’s Code of Ethics and
Business Conduct.” The termination letter also explained that
Wawrzenski’s combination of “United uniform photos with [her]
suggestive photos as a tool to solicit access to [her] private
content for a profit on Onlyfans.com for [her] financial gain” was
a “clear conflict of interest” and that her failure “to recognize the
seriousness of [the] offense” and to “acknowledge that [her]
conduct was inappropriate” contributed to Mark’s decision to
terminate her employment.
E. Wawrzenski Files This Action, the Trial Court Grants
United’s Motion for Summary Judgment, and
Wawrzenski Appeals
Wawrzenski filed a complaint with the Department of Fair
Employment and Housing (now the Civil Rights Department) and
in October 2020 obtained a right-to-sue letter. She alleged in her
ensuing lawsuit causes of action for gender discrimination,
hostile work environment harassment, and retaliation in
violation of FEHA; failure to prevent discrimination, harassment,
16
and retaliation in violation of FEHA; whistleblower retaliation in
violation of Labor Code section 1102.5; wrongful termination in
violation of public policy; and intentional infliction of emotional
distress.8 Wawrzenski also sought punitive damages.
United moved for summary judgment or in the alternative
for summary adjudication on 31 issues covering elements of all
Wawrzenski’s causes of action. The trial court granted United’s
motion in its entirety, ruling: “The Court will grant summary
judgment after ruling favorably to United on the 31 issues posted
for summary adjudication.” The court listed those 31 issues in an
appendix to its written ruling. The court also ruled “United has
shown a legitimate non-discriminatory basis for terminating
[Wawrzenski], and [Wawrzenski] does not show substantial
evidence that the reasons given for the termination were
pretextual.” The court overruled all evidentiary objections.
Regarding Wawrzenski’s cause of action for discrimination,
the court rejected Wawrzenski’s argument Mark’s comment that
everyone is not “under the same umbrella” was direct evidence of
discrimination. The court also rejected Wawrzenski’s evidence
United treated male flight attendants with social media accounts
better than, or different from, Wawrzenski. The court stated
Wawrzenski failed to address whether United disciplined any of
8 Wawrzenski also asserted causes of action for failure to
reimburse business expenses, unfair business practices,
defamation, and coerced self-defamation. Wawrzenski dismissed
her cause of action for failure to reimburse business expenses
before the trial court ruled on United’s motion for summary
judgment. The trial court granted United’s motion for summary
adjudication on her causes of action for defamation and self-
coerced defamation, and Wawrzenski does not challenge those
rulings.
17
those (male) flight attendants, whether United received
complaints about their social media activities, or whether they
“used photographs in their United uniforms to advertise their
pay-a-fee OnlyFans accounts.” It is unclear, however, whether
the trial court addressed Wawrzenski’s evidence of male
employees in the context of her prima facie case or in ruling
Wawrzenski failed to show United’s nondiscriminatory reasons
for terminating Wawrzenski were pretextual. In any event, the
trial court ruled Wawrzenski failed to establish a prima facie case
of gender discrimination and to establish pretext.
Regarding Wawrzenski’s cause of action for hostile work
environment harassment, the trial court ruled as a matter of law
the harassment Wawrzenski experienced was neither severe nor
pervasive. The court also appeared to conclude, by citing Pollock
v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918(Pollock), which applied the then-applicable one-year limitations
period in section 12960, former subdivision (d), to the plaintiff’s
FEHA cause of action, that certain allegations of harassment fell
outside the applicable statute of limitations. The trial court,
however, did not identify any such allegations or rule any
evidence was inadmissible. Finally, the court ruled the United
managers’ use of the word “solicit” to describe Wawrzenski’s
actions did not constitute harassment because “the term
solicitation can refer to any good or service one wants to sell,
including the purported content in [Wawrzenski’s] OnlyFans,
which was ‘fitness and nutrition content.’”
Regarding Wawrzenski’s cause of action for retaliation
under FEHA, the trial court ruled Wawrzenski failed to present
evidence showing a causal connection between any protected
activity and United’s decision to terminate her employment. In
18
particular, the court stated Wawrzenski failed to show how her
complaints about enforcement of the uniform policy “connect to
the decision to terminate her.” And the court ruled the
complaints she lodged during her investigation meeting could not
be the “motivating animus to the eventual decision to terminate
as the existing investigation was about a different subject (her
posing in a United uniform with other bikini photographs) on a
website advertising for her OnlyFans fee-based website.” The
court also ruled there was no causal connection because Mark did
not decide to terminate Wawrzenski until after she failed to
remove all photographs of her in uniform from her Instagram
account. Because the trial court concluded there were no triable
issues of material fact regarding Wawrzenski’s causes of action
for discrimination, harassment, or retaliation under FEHA, the
court ruled there were no triable issues of material fact regarding
her cause of action for failure to prevent that conduct.
Regarding Wawrzenski’s cause of action for whistleblower
retaliation under Labor Code section 1102.5, the trial court ruled
Wawrzenski failed to show any causal connection between the
complaints underlying her cause of action for retaliation in
violation of FEHA and United’s decision to terminate her
employment. The court also rejected Wawrzenski’s claim an
Instagram post about the public flying during the COVID
pandemic was protected activity. Because the court granted
United’s motion on her Labor Code cause of action and all causes
of action based on FEHA, the court ruled in favor of United on
Wawrzenski’s cause of action for wrongful termination in
violation of public policy. The court also found no basis for
Wawrzenski’s cause of action for intentional infliction of
emotional distress because the court ruled Wawrzenski failed to
19
show any “discriminatory animus” on the part of United. Thus,
the court stated, Wawrzenski could not show United’s conduct
was “extreme and outrageous.” Similarly, the court ruled
Wawrzenski did not have a claim for punitive damages because
the court was granting United’s motion for summary judgment on
all causes of action. The trial court entered judgment for United,
and Wawrzenski timely appealed.
DISCUSSION
A. Summary Judgment Law and Standard of Review
“‘From commencement to conclusion, the moving party
defendant bears the burden of persuasion that there is no triable
issue of material fact and that the defendant is entitled to
judgment as a matter of law.’” (Brown v. Beach House Design
& Development (2022) 85 Cal.App.5th 516, 525; see Hampton v.
County of San Diego (2015) 62 Cal.4th 340, 347; Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Martin v. Board
of Trustees of California State University (2023) 97 Cal.App.5th
149, 160 (Martin).) “[T]he party moving for summary judgment
bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact;
if [the moving party] carries [its] burden of production, [the
moving party] causes a shift, and the opposing party is then
subjected to a burden of production of [its] own to make a prima
facie showing of the existence of a triable issue of material fact.”
(Aguilar, at p. 850; see Martin, at p. 160.)
“When the moving party is a defendant, it must show that
the plaintiff cannot establish at least one element of the cause of
action.” (Martin, supra, 97 Cal.App.5th at p. 160; see Aguilar v.
20
Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.) “The
defendant must ‘present evidence, and not simply point out that
the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.’” (Martin, at p. 160; see Aguilar, at p. 853.)
“The defendant may, but need not, present evidence that
conclusively negates an element of the plaintiff’s cause of action.
The defendant may also present evidence that the plaintiff does
not possess, and cannot reasonably obtain, needed evidence—as
through admissions by the plaintiff following extensive discovery
to the effect that he has discovered nothing.” (Aguilar, at p. 855;
accord, Martin, at p. 160.)
“On appeal from a summary judgment ruling, we review
the record de novo to determine whether triable issues of
material fact exist.” (Martin, supra, 97 Cal.App.5th at p. 160;
see Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347.)
“‘“[W]e take the facts from the record that was before the trial
court when it ruled on [the] motion. [Citation.] . . . . We liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party.”’” (Hampton, at p. 347; see California Medical Assn.
v. Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1087.)
“‘We need not defer to the trial court and are not bound by the
reasons in its summary judgment ruling; we review the ruling of
the trial court, not its rationale.’” (Martin, at p. 161; see
Hampton, at p. 347; Rheinhart v. Nissan North America, Inc.
(2023) 92 Cal.App.5th 1016, 1024.)
21
B. The Trial Court Erred in Granting United’s Motion
for Summary Adjudication on Wawrzenski’s Cause of
Action for Gender Discrimination
1. Applicable Law
“FEHA prohibits an employer from subjecting an employee
to an adverse employment action based on the employee’s
protected status. [Citation.] In evaluating claims of
discrimination under FEHA, California courts apply the burden-
shifting approach set forth in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792.” (Martin, supra, 97 Cal.App.5th at p. 161;
see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214;
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
“Under this approach, if the plaintiff establishes a prima facie
case supporting his or her discrimination claim, the burden of
production shifts to the employer to rebut the presumption of
discrimination by offering a legitimate, nondiscriminatory reason
for the adverse employment action.” (Martin, at p. 161; see
Harris, at p. 214; Guz, at pp. 355-356.) To state a prima facie
case of discrimination under FEHA, the plaintiff must show
(1) she was a member of a protected class; (2) she was qualified
for the position she sought or was performing competently in the
position she held; (3) she suffered an adverse employment action;
and (4) some other circumstance suggests discriminatory motive.
(Guz, at p. 355; Martin, at p. 162.) The “plaintiff must establish a
causal nexus between the adverse employment action and [her]
protected characteristic.” (Martin, at p. 162; see Guz, at p. 355;
see § 12940, subd. (a).)
This first step of the McDonnell Douglas framework
“is designed to eliminate at the outset the most patently
22
meritless claims, as where the plaintiff is not a member of the
protected class or was clearly unqualified, or where the job [the
plaintiff] sought was withdrawn and never filled. [Citations.]
While the plaintiff’s prima facie burden is ‘not onerous’ [citation],
[the plaintiff] must at least show ‘“actions taken by the employer
from which one can infer, if such actions remain unexplained,
that it is more likely than not that such actions were ‘based on a
[prohibited] discriminatory criterion.’”’” (Guz, supra, 24 Cal.4th
at pp. 354-355; accord, Department of Corrections &
Rehabilitation v. State Personnel Bd. (2022) 74 Cal.App.5th 908,
924.)
“An employer may meet its initial burden in moving for
summary judgment by presenting evidence that one or more
elements of a prima facie case are lacking, or the employer acted
for a legitimate, nondiscriminatory reason.” (Martin, supra,
97 Cal.App.5th at p. 162; see Zamora v. Security Industry
Specialists, Inc. (2021) 71 Cal.App.5th 1, 32.) “A legitimate,
nondiscriminatory reason is one that is unrelated to unlawful
bias and, if true, would preclude a discrimination finding.
[Citation.] ‘[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct.’” (Martin, at
p. 162; see Guz, supra, 24 Cal.4th at p. 358.)
“If the employer puts forth a legitimate basis for the
adverse employment action, the burden of production shifts to the
plaintiff to present evidence creating a triable issue of fact
showing the employer’s stated reason was a pretext for unlawful
animus in order to avoid summary judgment.” (Martin, supra,
97 Cal.App.5th at p. 162.) “In addition, FEHA does not require
proof that discriminatory animus was a ‘but for’ cause of an
adverse action, only that it was a ‘substantial motivating factor.’
23
[Citation.] ‘Still, there must be evidence supporting a rational
inference that intentional discrimination, on grounds prohibited
by the statute, was the true cause of the employer’s actions.’”
(Martin, at p. 162; see Harris, supra, 56 Cal.4th at pp. 229-232;
Guz, supra, 24 Cal.4th at p. 361.) Ultimately, “an employer is
entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is
insufficient to permit a rational inference that the employer’s
actual motive was discriminatory.” (Guz, at p. 361; see Martin,
at p. 162.)
If a plaintiff can demonstrate “direct evidence of
discriminatory animus,” then the burden-shifting analysis does
not apply. (DeJung v. Superior Court (2008) 169 Cal.App.4th
533, 550; see Trop v. Sony Pictures Entertainment, Inc. (2005)
129 Cal.App.4th 1133, 1144.) “Direct evidence is evidence which,
if believed, proves the fact of discriminatory animus without
inference or presumption.” (DeJung, at p. 550; see Zamora v.
Security Industry Specialists, Inc., supra, 71 Cal.App.5th at
p. 35.) Because “direct evidence of intentional discrimination is
rare,” the plaintiff must usually prove discrimination
circumstantially. (Khoiny v. Dignity Health (2022)
76 Cal.App.5th 390, 398; see Department of Corrections
& Rehabilitation v. State Personnel Bd., supra, 74 Cal.App.5th
at p. 923.)
2. Wawrzenski Did Not Submit Direct Evidence of
Discrimination
In opposing United’s motion for summary judgment,
Wawrzenski argued Mark’s comment that not everyone at United
was “under the same umbrella” is direct evidence of
24
discriminatory intent, so that the McDonnell Douglas burden-
shifting framework does not apply. Wawrzenski argues on
appeal the trial court erred in ruling Mark’s comment was not
direct evidence of discrimination. The trial court, however, was
correct because Mark’s comment requires an inference to show
discriminatory animus. Standing alone, it demonstrates neither
discriminatory animus nor a causal relationship between the
comment and United’s decision to terminate Wawrzenski’s
employment. (See Zamora v. Security Industry Specialists, Inc.,
supra, 71 Cal.App.5th at p. 35; DeJung v. Superior Court, supra,
169 Cal.App.4th at p. 550.)
Wawrzenski repeatedly argues Mark stated “males” were
not “under the same umbrella.” But that is not what she alleged.
According to Wawrzenski, she asked Mark, “‘Is this United’s new
social media policy in which you are asking all 90,000 employees
to remove themselves in uniform?’” and “Mark replied, ‘No, we
cannot put everyone under the same umbrella.’” It is unclear
from Wawrzenski’s allegation whom Mark included in his
reference to “everyone.” He could have meant male employees,
but he also could have meant all employees. Wawrzenski cannot
now change her story to avoid summary adjudication. (See Cohen
v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 18.)
“The complaint is supposed to set forth the plaintiff’s proposed
case, which the defendant’s summary adjudication motion then
aims to test as a matter of law.” (Ibid.; see Shirvanyan v.
Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82,
100 [“[t]he complaint’s allegations . . . concede the truth of [the]
matter”], internal quotation marks omitted.) The trial court did
25
not err in ruling Mark’s “umbrella” comment was not direct
evidence of discrimination.9
3. Wawrzenski Met Her Burden To Show a Prima
Facie Case of Discrimination
Wawrzenski also argues she presented sufficient
circumstantial evidence to satisfy her burden of making a prima
facie case of discrimination. United concedes Wawrzenski
satisfied the first three elements of a prima facie case (she was a
member of a protected class, was qualified for the position, and
was performing competently in the position when she suffered an
adverse employment action), but contests the fourth
(circumstantial evidence suggesting United acted with
discriminatory animus). In the trial court Wawrzenski did not
appear to recognize she had the burden to produce evidence on
this element once United argued there was no evidence
suggesting a discriminatory motive, and she cited evidence only
to support her contention United’s stated reasons for her
termination were pretextual. In that context, however, she
9 For the first time in her reply brief Wawrzenski argues
that Mark’s “umbrella” comment “is at the very least ambiguous”
and that, “against the backdrop of other circumstantial evidence,”
it shows discriminatory intent. Wawrzenski forfeited this
argument because she did not make it in the trial court or in her
opening brief on appeal. (See Provost v. Regents of University of
California (2011) 201 Cal.App.4th 1289, 1295 [“we will not
address arguments raised for the first time in the reply brief”];
Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th
1260, 1271, fn. 5 [“‘[a]lthough our review of a summary judgment
is de novo, it is limited to issues which have been adequately
raised and supported in plaintiffs’ brief’”].)
26
argued circumstantial evidence of disparate treatment “may by
itself support a claim for discrimination,” which is correct. (See
Gupta v. Trustees of California State University (2019)
40 Cal.App.5th 510, 519 [“Plaintiffs in FEHA cases can prove
their cases by presenting either direct evidence, such as
statements or admissions, or circumstantial evidence, such as
comparative or statistical evidence.”]; Hawn v. Executive Jet
Management, Inc. (9th Cir. 2010) 615 F.3d 1151, 1156
[“a plaintiff may show ‘an inference of discrimination . . .’ through
comparison to similarly situated individuals, or any other
circumstances ‘surrounding the adverse employment action [that]
give rise to an inference of discrimination’”].)10 Construing that
evidence liberally (as we must), we conclude Wawrzenski (barely)
met her burden on the first step of the McDonnell Douglas
framework.
To support her argument United enforces its social media
policy differently against men and women, Wawrzenski
submitted evidence of three “comparators” who were male United
employees with social media accounts that included pictures of
themselves in uniform and in “suggestive” poses, but who were
not disciplined or who received only a performance warning.
(See Gupta v. Trustees of California State University, supra,
40 Cal.App.5th at p. 520 [referring to individuals allegedly
“treated more favorably” than the plaintiff as “comparator[s]”];
see also Allen v. Staples, Inc. (2022) 84 Cal.App.5th 188, 194;
10 “Because of the similarity between state and federal
employment discrimination laws, California courts look to
pertinent federal precedent when applying our own statutes.”
(Guz, supra, 24 Cal.4th at p. 354; see Bailey v. San Francisco
Dist. Attorney’s Office (2024) 16 Cal.5th 611, 626.)
27
Ballou v. McElvain (9th Cir. 2022) 29 F.4th 413, 423.)
“Cameron,” a United flight attendant based in Denver, had an
Instagram account showing pictures of himself almost nude and
in uniform. Cameron’s Instagram account included a link to
another account called a “Drag Account,” and that account listed
Cameron’s email address for “Bookings” and his Venmo account
name.11 Wawrzenski submitted testimony from a United
representative that Cameron received only a Performance
Warning Level 4. “Juliano,” a United flight attendant based in
San Francisco, had an Instagram account featuring “suggestive
pictures, videos and captions” alongside pictures of himself in his
United uniform. In November 2021 United issued Juliano a
Performance Warning Level 4 after he removed certain pictures
from his account; United concluded Juliano was “not
meaningfully trying to violate any United policies.” And
“AviatorDave,” a United “brand ambassador” based in
San Francisco, had an Instagram account that included pictures
of himself in uniform, in swimwear, shirtless in open bathrobes,
and in bed. AviatorDave’s Instagram account included a
Linktree link to “Aviator Dave TV,” where subscribers could
access information about flying. AviatorDave’s supervisor
testified she had never seen his social media accounts.
“Evidence that an employer treated ‘similarly situated’
employees outside the plaintiff’s protected class ‘“‘more
favorably’”’ is probative of the employer’s discriminatory or
retaliatory intent.” (Gupta v. Trustees of California State
University, supra, 40 Cal.App.5th at p. 519; see Guz, supra,11 “Venmo is a money-transfer service that allows users to
transfer funds electronically through the Internet.” (Disciplinary
Counsel v. Ford (2020) 159 Ohio St.3d 558, 562, fn. 1.)
28
24 Cal.4th at p. 366.) Citing Gupta, United argues Wawrzenski
failed to provide evidence of male United employees with social
media accounts who were “‘similarly situated’” to her “‘in all
relevant respects.’” (See Gupta, at pp. 519-520; see also McGrory
v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510,
1535 [“To establish discrimination based on disparate discipline,
it must appear ‘that the misconduct for which the employer
discharged the plaintiff was the same or similar to what a
similarly situated employee engaged in, but that the employer
did not discipline the other employee similarly.”].) “In general,
‘individuals are similarly situated when they have similar jobs
and display similar conduct.’” (Gupta, at p. 520; see Wills v.
Superior Court (2011) 195 Cal.App.4th 143, 172 [“Another
employee is similarly situated if, among other things, he or she
‘“engaged in the same conduct without any mitigating or
distinguishing circumstances.”’”].)
United contends the three male employees with the social
media accounts “are not proper comparators” because they had
different positions at United, their conduct was different, and
they had different supervisors. While courts have cited such
differences as reasons for finding comparators were not “similarly
situated” to the plaintiff (see, e.g., Vasquez v. County of
Los Angeles (9th Cir. 2003) 349 F.3d 634, 641 [“[e]mployees in
supervisory positions are generally deemed not to be similarly
situated to lower level employees”]; Meaux v. Northwest Airlines,
Inc. (N.D.Cal. 2010) 718 F.Supp.2d 1081, 1091 [“the same
decisionmaker was not involved in [the comparator’s] and
Plaintiff’s discipline decision”]), whether the plaintiff is similarly
situated to other employees is generally a question of fact. (Earl
v. Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108,
29
1116; Hawn v. Executive Jet Management, Inc., supra, 615 F.3d
at p. 1157; see Beck v. United Food & Commercial Workers
Union, Local 99 (9th Cir. 2007) 506 F.3d 874, 885, fn. 5 [“We
agree with our sister circuits that whether two employees are
similarly situated is ordinarily a question of fact.”].) Indeed, the
“employees’ roles need not be identical; they must only be similar
‘in all material respects,’” and “[m]ateriality will depend on
context and the facts of the case.” (Hawn, at p. 1157; accord,
Earl, at p. 1114; see Graham v. Long Island R.R. (2d Cir. 2000)
230 F.3d 34, 40 [“the standard for comparing conduct requires a
reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, rather than a showing that
both cases are identical”].)
Wawrzenski submitted evidence of how United treated the
three male employees whose Instagram accounts included
pictures of them in uniform and in arguably suggestive poses.
Two of those accounts also included links or references to other
accounts where the employees could earn income unrelated to
their employment with United. The trial court ruled the three
male employees were not sufficiently similarly situated to
Wawrzenski.12 The court stated that Wawrzenski failed to show
anyone filed a complaint about AviatorDave or Juliano, that she
failed to submit evidence Cameron received only a warning (in
fact, she provided that evidence, but failed to cite it in her
memorandum of points and authorities in opposition to the
12 The trial court made this ruling in the context of United’s
argument Wawrzenski failed to create a triable issue of material
fact regarding pretext; the court (like Wawrzenski) did not
appear to consider Wawrzenski’s comparator evidence in the
context of her prima facie case.
30
motion), and that she had not shown Juliano had an “OnlyFans
account that he was advertising in a United uniform.” While
these factual statements were (mostly) accurate, the trial court
used the wrong standard for comparator evidence: Rather than
requiring the male employees’ conduct and treatment to be
similar “in all relevant respects,” the court required their conduct
and treatment to be identical to Wawrzenski’s in all respects.
(See Gupta v. Trustees of California State University, supra,
40 Cal.App.5th at p. 519; see also Guz, supra, 24 Cal.4th at p. 369
[requiring that similarly situated employees have only “similar or
comparable” duties and responsibilities].)
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. (See Earl v. Nielsen Media
Research, Inc., supra, 658 F.3d at p. 1115 [comparators were
similarly situated where, among other things, the relevant
policies and procedures that applied to the plaintiff also applied
to the comparators and served the same purpose].) Determining
which similarities and differences are relevant “depends on the
context and is a question of fact that ‘cannot be mechanically
resolved.’” (Id. at p. 1114; see Hawn v. Executive Jet
Management, Inc., supra, 615 F.3d at p. 1157.) A reasonable
factfinder could conclude Wawrzenski and the three male United
employees were “‘sufficiently similarly situated to support an
inference of discrimination.’” (Riggs v. AirTran Airways, Inc.
31
(10th Cir. 2007) 497 F.3d 1108, 1117; see Graham v. Long Island
R.R., supra, 230 F.3d at pp. 42-43 [a rational jury could find the
plaintiff and another employee were similarly situated where
they engaged in different misconduct but were subject to the
same conditions for dismissal].)
4. Wawrzenski Presented Sufficient Evidence of
Pretext
The trial court ruled United showed “a legitimate non-
discriminatory basis for terminating” Wawrzenski’s employment,
and Wawrzenski does not argue or attempt to show the court
erred in that respect. Wawrzenski does argue, however, the trial
court erred in ruling as a matter of law Wawrzenski could not
establish United’s stated reasons were pretextual. Wawrzenski
submitted a variety of evidence to attack United’s proffered
reasons as pretexts for discrimination, including evidence of
disparate treatment, United’s failure to investigate her
complaints of discrimination and harassment, and a
discriminatory atmosphere. Together, this evidence cast
sufficient doubt on United’s nondiscriminatory reasons for
terminating Wawrzenski’s employment to defeat United’s motion
for summary adjudication on her cause of action for
discrimination.
First, “[s]howing disparate treatment or policy enforcement
is a permissible means to establish pretext.” (Wills v. Superior
Court, supra, 195 Cal.App.4th at p. 172.) As discussed,
Wawrzenski submitted evidence of United’s treatment of three
male employees who were subject to the same social media policy
as Wawrzenski, whose Instagram accounts included pictures of
them in uniform and in arguably suggestive poses, and yet who
32
were either not disciplined or received only a warning. (See
Graham v. Long Island R.R., supra, 230 F.3d at p. 40 [employees
are similarly situated in all material respects where they “were
subject to the same workplace standards and . . . the conduct for
which the employer imposed discipline was of comparable
seriousness”].)
Second, there was evidence United failed to investigate
Wawrzenski’s complaints of discrimination and harassment.
(See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,
280 [an employer’s failure to adequately investigate an
altercation between the plaintiff and another employee evidenced
pretext]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th
95, 120-121 [employer’s “lack of thoroughness” in its investigation
of the plaintiff’s alleged misconduct supported an inference of
discriminatory pretext].) Though United contends Wawrzenski
never reported an incident of misconduct “in writing or through
formal channels,” Wawrzenski testified she reported numerous
incidents of alleged discrimination and harassment to her
supervisor Nunn. And United’s Working Together Guidelines
specify that employees may raise concerns about discriminatory
or harassing conduct with their “management team,” which for
Wawrzenski included Nunn. Nothing in the Guidelines or FEHA
required Wawrzenski to report suspected discrimination and
harassment through every channel available to her. Moreover,
Wawrzenski did complain “in writing” to Mark about the alleged
discrimination and harassment in the statement she prepared
following the investigation meeting on July 2, 2020. And Perez
admitted United “should have” investigated those complaints.
Finally, Wawrzenski presented evidence there was a
discriminatory work atmosphere at United. Nunn told
33
Wawrzenski that she would experience “a lot of hate” because she
was a “young, attractive female” and that she should “get used to
it.” (See Rachells v. Cingular Wireless Employee Services, LLC
(6th Cir. 2013) 732 F.3d 652, 665 [discriminatory atmosphere is
relevant to pretext]; Cariglia v. Hertz Equipment Rental Corp.
(1st Cir. 2004) 363 F.3d 77, 85 [same]; Munoz v. National
Railroad Passenger Corp. (C.D.Cal., Nov. 23, 2016, No. CV 15-
6309 DMG (JEMx) 2016 WL 11744436, at p. 1 [same]; see also
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 545 [probative value of
“stray remarks . . . turns on the facts of each case”].) Although
Nunn was not involved in the decision to terminate Wawrzenski’s
employment, Nunn made these statements in spring 2020, just a
few months before United terminated Wawrzenski’s employment.
(See Rachells, at p. 665 [“[f]actors affecting whether
discriminatory atmosphere evidence is probative of
discrimination in a particular case include: ‘the [actor]’s position
in the [employer’s] hierarchy, the purpose and content of the
[conduct], and the temporal connection between the [conduct] and
the challenged employment action, as well as whether the
[conduct] buttresses other evidence of pretext’”], brackets in
original; Ercegovich v. Goodyear Tire & Rubber Co.
(6th Cir. 1998) 154 F.3d 344, 356 [discriminatory statements,
even by a nondecisionmaker, “may reflect a cumulative
managerial attitude among the defendant-employer’s managers
that has influenced the decisionmaking process for a considerable
time”].) This evidence, together with Wawrzenski’s evidence of
disparate treatment and United’s failure to investigate her
complaints, met Wawrzenski’s burden on the third step of the
McDonnell Douglas framework.
34
C. The Trial Court Erred in Granting United’s Motion
for Summary Adjudication on Wawrzenski’s Cause of
Action for Hostile Work Environment Harassment
1. Applicable Law
“It is an unlawful employment practice for an employer to
‘harass’ an employee based on membership in a protected class”
(Bailey v. San Francisco District Attorney’s Office (2024)
16 Cal.5th 611, 626 (Bailey)), including “because of . . . sex”
(§ 12940, subd. (j)(1); see Beltran v. Hard Rock Hotel Licensing,
Inc. (2023) 97 Cal.App.5th 865, 877-878 (Beltran)). “Harassment
includes ‘[v]erbal harassment’ such as ‘epithets, derogatory
comments or slurs on a basis enumerated in [FEHA].’” (Bailey, at
p. 627; see Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(A).)
Sexual harassment also includes “‘any unwelcome sexual
advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature.’” (Beltran, at p. 878; see Cal. Code
Regs., tit. 2, § 11019, subd. (b)(2)(D).) Hostile work environment
harassment is a type of sexual harassment that “‘has the purpose
or effect of either interfering with the work performance of an
employee, or creating an intimidating workplace.’” (Beltran, at
p. 878; see Bailey, at p. 627 [“harassment claims focus on
‘situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal,
physical, or visual) communicates an offensive message to the
harassed employee’”].)
To prevail on a claim of hostile work environment under
FEHA, an employee must show he or she was subjected to
harassing conduct that was (1) unwelcome, (2) because of sex or
gender, and (3) sufficiently severe or pervasive to alter the
35
conditions of her employment and create an abusive work
environment. (Bailey, supra, 16 Cal.5th at p. 627; Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 279; see
§ 12940, subd. (j)(4)(C) [“‘harassment’ because of sex includes
sexual harassment [and] gender harassment”].) “‘The working
environment must be evaluated in light of the totality of the
circumstances.’ [Citation.] ‘“These may include the frequency of
the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.”’ [Citation.] ‘“The required level of severity or
seriousness varies inversely with the pervasiveness or frequency
of the conduct.”’ [Citation.] ‘“[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious)”’ are
not sufficient to create an actionable claim of harassment.”
(Bailey, at p. 628; see Miller v. Department of Corrections (2005)
36 Cal.4th 446, 462.) “The objective severity of harassment
should be judged from the perspective of a reasonable person in
the plaintiff’s position.” (Bailey, at p. 629; see Miller, at p. 462.)
Before 2019 the “severe or pervasive” requirement “was
quite a high bar for plaintiffs to clear, even in the context of a
motion for summary judgment.” (Beltran, supra, 97 Cal.App.5th
at p. 878.) Effective January 1, 2019, however, the Legislature
added section 12923, which “clarified existing law” to provide
“that ‘[a] single incident of harassing conduct is sufficient to
create a triable issue regarding the existence of a hostile work
environment if the harassing conduct has unreasonably
interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive work environment.’” (Beltran,
at p. 878; see § 12923, subd. (b).) Section 12923 also “clarified
36
that a hostile work environment exists ‘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.’ The plaintiff is not required to
show a decline in productivity, only ‘that a reasonable person
subjected to the discriminatory conduct would find, as the
plaintiff did, that the harassment so altered working conditions
as to “make it more difficult to do the job.”’” (Beltran, at p. 878;
see Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 25 (conc.
opn. of Ginsburg, J.).)
United accurately quotes Beltran for the proposition that
section 12923 “‘did not change the substantive law of sexual
harassment.’” (Beltran, supra, 97 Cal.App.5th at p. 879.) But the
Supreme Court in Beltran recognized section 12923 did address
“how the trial courts were to apply that law, particularly and
specifically in the context of summary judgment.” (Beltran, at
p. 879.) Indeed, the Legislature declared: “Harassment cases are
rarely appropriate for disposition on summary judgment.”
(§ 12923, subd. (e); see Nazir v. United Airlines, Inc., supra,
178 Cal.App.4th at p. 286 [because “many employment cases
present issues of intent, and motive, and hostile working
environment, issues not determinable on paper,” such cases “are
rarely appropriate for disposition on summary judgment”]; see
also Bailey, supra, 16 Cal.5th at p. 634, fn. 7 [in enacting
section 12923 the Legislature affirmed the decision in Nazir and
observed “hostile working environment cases involve issues ‘not
determinable on paper’”].) And even before the Legislature
enacted section 12923, the law required courts to interpret FEHA
37
liberally to achieve its purposes. (§ 12993, subd. (a); Beltran, at
p. 878.)
“FEHA imposes two standards of employer liability for
sexual harassment, depending on whether the person engaging in
the harassment is the victim’s supervisor or a nonsupervisory
coemployee. The employer is liable for harassment by a
nonsupervisory employee only if the employer (a) knew or should
have known of the harassing conduct and (b) failed to take
immediate and appropriate corrective action.” (State Dept. of
Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-
1041; see § 12940, subd. (j)(1); Bailey, supra, 16 Cal.5th at
pp. 626-627.) However, “FEHA makes the employer strictly
liable for harassment by a supervisor.” (State Dept. of Health
Services, at p. 1041; see Dickson v. Burke Williams, Inc. (2015)
234 Cal.App.4th 1307, 1313, fn. 7.)
Before addressing the merits of Wawrzenski’s cause of
action for hostile work environment harassment, we must
address the temporal scope of the evidence Wawrzenski may
submit to support her claim. United argued in the trial court,
and the trial court appeared to rule, that Wawrzenski did not
exhaust her administrative remedies for allegations of
harassment occurring before 2019 and that therefore she could
not rely on evidence of harassment before 2019. Under the
continuing violation doctrine, however, she can rely on pre-2019
incidents of harassment.
2. Wawrzenski May Rely on Pre-2019 Allegations
Under the Continuing Violation Doctrine
An employee who wants to bring an action under FEHA
must exhaust the administrative remedy provided by the statute
38
by filing a complaint with the Civil Rights Department and
obtaining from the Department a notice of right to sue. (Pollock,
supra, 11 Cal.5th at p. 931; see Romano v. Rockwell Internat.,
Inc. (1996) 14 Cal.4th 479, 492.) “‘The timely filing of an
administrative complaint’ before the [Department] ‘is a
prerequisite to the bringing of a civil action for damages.’”
(Pollock, at p. 931; see Romano, at p. 492.) Until the end of
December 2019, the plaintiff had to file a complaint with the
Department within one year of the alleged misconduct. (See
§ 12960, former subd. (d); Pollock, at p. 931.) Effective
January 1, 2020 the Legislature amended section 12960 to
change this deadline to three years, but the bill that extended the
limitations period stated that “[t]his act shall not be interpreted
to revive lapsed claims.” (Assem. Bill No. 9 (2018-2019 Reg.
Sess.) § 3; see Legis. Counsel’s Dig., Assem. Bill No. 9 (2019-
2020 Reg. Sess.) [“This bill would prohibit its provisions from
being interpreted to revive lapsed claims.”].)
Under the “continuing violation” doctrine, however, “an
employer is liable for actions that take place outside the
limitations period if these actions are sufficiently linked to
unlawful conduct that occurred within the limitations period.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056
(Yanowitz).) The continuing violation doctrine requires proof that
“(1) the defendant’s actions inside and outside the limitations
period are sufficiently similar in kind; (2) those actions occurred
with sufficient frequency; and (3) those actions have not acquired
a degree of permanence.” (Wassmann v. South Orange County
Community College Dist. (2018) 24 Cal.App.5th 825, 850-851;
see Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390,
1402.) “Permanence” means that an employer’s actions and
39
statements make clear to a reasonable employee that any further
informal efforts to end the discrimination will be futile. (See
Jumaane, at p. 1402.)
United argued in the trial court that under Pollock, supra,
11 Cal.5th 918 Wawrzenski’s claims arising from conduct
occurring before January 1, 2019 were time-barred because the
one-year statute of limitations applied until January 1, 2020, and
Wawrzenski did not exhaust her administrative remedies until
October 2020. The trial court didn’t really address United’s
argument or the continuing violation doctrine; the court cited
Pollock and stated Wawrzenski “makes no attempt whatsoever to
argue that the continuing violation doctrine applies.” The trial
court was incorrect: Wawrzenski addressed the continuing
violation doctrine in her opposition to United’s motion for
summary judgment. But she does not argue in her opening brief
on appeal the trial court erred in stating she did not argue the
doctrine applies. As a result, United argues Wawrzenski’s
appellate oversight “leaves undisturbed the trial court’s
conclusion that [the alleged pre-2019] instances are not properly
considered as part of her lawsuit.”
But the trial court never ruled Wawrzenski could not rely
on evidence of alleged harassment occurring before January 1,
2019 (or any other date). Nor did the court rule the continuing
violation doctrine did not apply. The court merely cited Pollock
without analysis and stated incorrectly that Wawrzenski did not
address the continuing violation doctrine in her opposition to the
motion for summary judgment. Thus, there was no ruling
adverse to Wawrzenski on this issue that she needed to address
in her opening brief. (See Orange County Water Dist. v. Sabic
Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 379-380
40
& fn. 13 [“the trial court’s failure to adopt grounds for summary
judgment or summary adjudication urged by the respondent does
not constitute an error from an appellant’s point of view,” and the
“appellant therefore need not address them in its opening brief
(though it may do so)”].) Wawrzenski did not need to address this
issue until United (properly) raised the issue in its respondent’s
brief, and Wawrzenski (properly) addressed it in her reply brief,
where she argues, as she did in the trial court, “the evidence of
discriminatory and harassing conduct started at the inception of
[Wawrzenski’s] employment and was ongoing throughout her
employment, up until termination.”
Wawrzenski submitted evidence that the type of
harassment she experienced before 2019 was similar in kind to
the harassment she experienced after 2019 and that the
harassment occurred with sufficient frequency. Wawrzenski
stated in her declaration and at her deposition that before 2019
she regularly heard or learned about offensive comments directed
at her body or at the way her uniform looked on her body. We
accept these statements as true. (See Wong v. Stillwater Ins. Co.
(2023) 92 Cal.App.5th 1297, 1315 [“‘[w]e accept as true the facts
. . . in the evidence of the party opposing summary judgment and
the reasonable inferences that can be drawn from them’”].) These
incidents were “sufficiently linked” to comments directed to
Wawrzenski after January 2019 because they all focused on
Wawrzenski’s body. (See Yanowitz, supra, 36 Cal.4th at p. 1056
[continuing violation doctrine makes an employer liable “for
actions that take place outside the limitations period if these
actions are sufficiently linked to unlawful conduct that occurred
within the limitations period”].) Thus, the continuing violation
doctrine applies, and Wawrzenski was entitled to rely on
41
evidence of incidents prior to January 1, 2019 in opposition to
United’s motion for summary adjudication on her cause of action
for hostile work environment harassment. (See Dominguez v.
Washington Mutual Bank (2008) 168 Cal.App.4th 714, 721-722
[doctrine applied where harassment occurring within and outside
the limitations period based on the plaintiff’s sexual orientation
was “sufficiently related”]; see also Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 821-822 [courts should apply the
continuing violations doctrine flexibly to achieve “the letter and
the spirit” of FEHA].)13
3. The Trial Court Erred in Ruling the Alleged
Harassment Was Not Severe and Pervasive as a
Matter of Law
Wawrzenski relies on two categories of unwanted
comments to support her cause of action for hostile work
environment harassment. One category includes comments
about her body and the way she looked in her uniform; the other
includes comments made during the July 2, 2020 meeting, where
Wawrzenski claims Mark and Serrano-Cobo “insinuated” she was
a prostitute. We need only address the first.
13 Wawrzenski also stated in her opposition to the motion for
summary judgment that in 2015 she experienced “unwanted
touching” from a captain who approached her from behind and
began rubbing her shoulders. Wawrzenski did not allege in her
complaint she experienced unwanted touching and, even if she
had, she did not allege any similar conduct continued after
January 2019. Thus, any claim for harassment based on such
conduct is time-barred. (See § 12960, former subd. (d); Pollock,
supra, 11 Cal.5th at p. 931.)
42
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. Wawrzenski had to show
only that the harassing conduct sufficiently offended, humiliated,
distressed, or intruded on her so that it disrupted her “emotional
tranquility in the workplace” or otherwise interfered with and
undermined her “personal sense of well-being.” (§ 12923,
subd. (a); see Beltran, supra, 97 Cal.App.5th at p. 878.) The
evidence Wawrzenski submitted met this low bar. 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.
(See Beltran, at pp. 880-881 [“evidence of multiple incidents of
conduct over a period of months, including leering gestures, hand
massages, and inappropriate questions,” was “more than
sufficient to raise a triable issue of fact as to whether ‘a
reasonable person who was subjected to the harassing conduct
would find that the conduct so altered working conditions as to
make it more difficult to do the job’”].)
United argues there is “no evidence Wawrzenski
sufficiently apprised management” of the comments about her
body or her failure to comply with uniform standards. But
several of the harassing comments and actions were made or
taken by managers or supervisors (including Nunn, Korn, Gallo,
43
Nakasone, and Serrano-Cobo), who may qualify as “supervisors”
under FEHA and trigger strict liability. (See § 12926, subd. (t)
[defining “supervisor” to include an individual having the
authority to “discipline other employees”].) And Wawrzenski
brought many of the other comments to the attention of her
supervisor Nunn several times, and there is no evidence Nunn or
United took any action to stop the harassment. (See Dickson v.
Burke Williams, Inc., supra, 234 Cal.App.4th at p. 1313, fn. 7;
Sheffield v. Los Angeles County Dept. of Social Services (2003)
109 Cal.App.4th 153, 164 [employer could be liable for hostile
work environment harassment where the plaintiff’s supervisor
was aware of the harassment and failed to take reasonable steps
to prevent it].) United had sufficient knowledge, for purposes of
summary judgment, to incur liability for the actions of its
nonsupervisory employees. (See State Dept. of Health Services v.
Superior Court, supra, 31 Cal.4th at p. 1041.)
United also argues “there is nothing sex-specific” about the
comments about Wawrzenski’s body and uniform. While some
comments appear to relate primarily to United’s enforcement of
its uniform policy, a reasonable factfinder could infer other
comments—such as those about Wawrzenski’s “‘butt’” and her
“‘breaking necks’” of male employees who looked at her—and the
“unwanted sexual advance[s]” had “sexual connotations” or were
based on Wawrzenski’s gender. (See Beltran, supra,
97 Cal.App.5th at p. 878 [“‘[s]exual harassment consists of any
unwelcome sexual advances . . . or other verbal or physical
conduct of a sexual nature’”]; Lewis v. City of Benicia (2014)
224 Cal.App.4th 1519, 1527 [acts having “sexual connotations”
may support a claim for hostile work environment harassment];
see also § 12940, subd. (j)(4)(C) [“‘harassment’ because of sex
44
. . . need not be motivated by sexual desire”].) 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.” (See Singleton v. United States
Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557 [“sexual
harassment in violation of [section 12940] ‘may be stated by a
member of the same sex as the harasser’”]; Sheffield v.
Los Angeles County Dept. of Social Services, supra,109 Cal.App.4th at p. 160 [“[s]ame sex harassment is considered
sexual harassment”].)
United also cites several cases, decided before the 2019
amendments to FEHA, stating that comments “far more hostile”
than those Wawrzenski endured did not constitute hostile work
environment harassment. For example, United cites Hughes v.
Pair (2009) 46 Cal.4th 1035, where the plaintiff sued the trustee
of a trust created for the benefit of the plaintiff’s son for violation
of Civil Code section 51.9, which prohibits sexual harassment in
certain business relationships outside the workplace. (Hughes, at
p. 1039.) The plaintiff alleged that, during a telephone
conversation, the defendant “called plaintiff ‘sweetie’ and ‘honey,’
and said he thought of her ‘in a special way, if you know what
I mean.’” (Id. at p. 1040.) The defendant also told the plaintiff:
“‘You are one of the most beautiful, unattainable women in the
world. Here’s my home telephone number and call me when
you’re ready to give me what I want.’” (Ibid.) The defendant
later told the plaintiff in person, “‘I’ll get you on your knees
eventually. I’m going to fuck you one way or another.’” (Ibid.)
While these comments are unquestionably more “severe” than
those Wawrzenski experienced, the Supreme Court in Hughes
affirmed an order granting the defendant’s motion for summary
45
judgment in that case under very different standards than those
(later) established by Government Code section 12923. (See
Beltran, supra, 97 Cal.App.5th at p. 880 [cases decided before
section 12923 went into effect “are no longer good law when it
comes to determining what conduct creates a hostile work
environment in the context of a motion for summary judgment or
adjudication”]; Williamson v. DHL Global Forwarding USA
(C.D.Cal. Apr. 24, 2024, No. 2:24-cv-01476-WLH-BFM) 2024 WL
1759172, at p. 3 [same].) To the extent Hughes suggests that “an
isolated incident of harassing conduct may qualify as ‘severe’”
only if “it consists of ‘a physical assault or the threat thereof’”
(Hughes, at p. 1049), such a suggestion is no longer the law.
Under section 12923 an isolated incident of harassing conduct
need only have “unreasonably interfered with the plaintiff’s work
performance or created an intimidating, hostile, or offensive work
environment.” (§ 12923, subd. (b).) A physical assault or threat
is not required.
Similarly, United cites Brennan v. Townsend & O’Leary
Enterprises, Inc. (2011) 199 Cal.App.4th 1336, also decided before
the Legislature enacted section 12923, where the court affirmed
an order granting the defendant’s motion for judgment
notwithstanding the verdict after a trial in which the plaintiff
presented evidence of only three incidents of gender-based
conduct involving coworkers over the span of several years.
Brennan, too, is no longer good law. And it is distinguishable:
Unlike the plaintiff in that case, Wawrzenski presented evidence
she endured offensive gender-based comments “several times a
month” throughout her employment.
46
D. The Trial Court Erred in Granting United’s Motion
for Summary Adjudication on Wawrzenski’s Cause of
Action for Retaliation Under FEHA
Section 12940, subdivision (h), “makes it an unlawful
employment practice ‘[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.’” (Yanowitz, supra, 36 Cal.4th at
p. 1042, italics omitted.) “[T]o establish a prima facie case of
retaliation under the FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.”
(Yanowitz, at p. 1042; see Khoiny v. Dignity Health, supra,
76 Cal.App.5th at p. 397; Vines v. O’Reilly Auto Enterprises, LLC
(2022) 74 Cal.App.5th 174, 185.) Wawrzenski and United contest
the first and third elements of Wawrzenski’s prima facie case.
(See Wilkin v. Community Hospital of the Monterey Peninsula
(2021) 71 Cal.App.5th 806, 828 [“In summary judgment
proceedings, a FEHA retaliation claim is treated the same as a
FEHA discrimination claim” and is subject to the same
McDonnell Douglas burden-shifting framework].)
1. Wawrzenski Created a Triable Issue of Material
Fact Regarding Whether She Engaged in
Protected Activity
“Protected activity” includes “oppos[ing] conduct that the
employee reasonably and in good faith believes to be
discriminatory, whether or not the challenged conduct is
47
ultimately found to violate the FEHA. It is well established that
a retaliation claim may be brought by an employee who has
complained of or opposed conduct that the employee reasonably
believes to be discriminatory, even when a court later determines
the conduct was not actually prohibited by the FEHA.”
(Yanowitz, supra, 36 Cal.4th at p. 1043.) The “reasonableness of
the employee’s belief ‘has both a subjective and an objective
component.’” (Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 381; accord, Vines v. O’Reilly Auto
Enterprises, LLC, supra, 74 Cal.App.5th at pp. 185-186) “To
meet his burden on this issue, ‘[a] plaintiff must not only show
that he subjectively (that is, in good faith) believed that his
employer was engaged in unlawful employment practices, but
also that his belief was objectively reasonable in light of the facts
and record presented.’ [Citation.] The objective reasonableness
of an employee’s belief that his employer has engaged in a
prohibited employment practice ‘must be measured against
existing substantive law.’” (Dinslage, at pp. 381-382; see Vines,
at pp. 185-186.)
“Standing alone, an employee’s unarticulated belief that an
employer is engaging in discrimination will not suffice to
establish protected conduct for the purposes of establishing a
prima facie case of retaliation, where there is no evidence the
employer knew that the employee’s opposition was based upon a
reasonable belief that the employer was engaging in
discrimination.” (Yanowitz, supra, 36 Cal.4th at p. 1046; see
Castro-Ramirez v. Dependable Highway Express, Inc. (2016)
2 Cal.App.5th 1028, 1046.) “Although an employee need not
formally file a charge in order to qualify as being engaged in
protected opposing activity, such activity must oppose activity the
48
employee reasonably believes constitutes unlawful
discrimination, and complaints about personal grievances or
vague or conclusory remarks that fail to put an employer on
notice as to what conduct it should investigate will not suffice to
establish protected conduct.” (Yanowitz, at p. 1047, fn. omitted;
see Castro-Ramirez, at p. 1046.) “‘[A]n employee is not required
to use legal terms or buzzwords when opposing discrimination.
The court will find opposing activity if the employee’s comments,
when read in their totality, oppose discrimination.’” (Yanowitz,
at p. 1047; see Castro-Ramirez, at p. 1046.)
“‘Retaliation claims are inherently fact-specific’ [citation],
and ‘protected conduct can take many forms.’” (Castro-Ramirez
v. Dependable Highway Express, Inc., supra, 2 Cal.App.5th at
p. 1046.) Employees’ beliefs they are complaining about
prohibited conduct “may be inferred from the nature and content
of their repeated complaints. The issue of a plaintiff’s subjective,
good faith belief involves questions of credibility and ordinarily
cannot be resolved on summary judgment.” (Miller v.
Department of Corrections, supra, 36 Cal.4th at p. 476; see
Castro-Ramirez, at p. 1047.)
On the subjective component, Wawrzenski submitted
evidence she complained to Nunn, Nakasone, and Serrano-Cobo
about United’s discriminatory enforcement of its uniform policy
and about the harassing comments. She also submitted evidence
she complained to Mark and Serrano-Cobo at the July 2, 2020
investigation meeting about these same issues, as well as about
United’s disparate enforcement of its social media policy. This
evidence created triable issues of material fact regarding whether
Wawrzenski subjectively believed the harassment and
discrimination she experienced were actionable and unlawful.
49
On the objective component, there was evidence
Wawrzenski told Nakasone that Gallo’s comments to her about
her uniform were “sexist” and that she was subject to greater
“scrutiny” than male flight attendants. She told Serrano-Cobo
that making her change uniforms when the one she was wearing
was compliant was also “sexist.” Wawrzenski told Nunn that
United’s “unequal treatment between males and females”
regarding uniform compliance was “sexist” and “completely
unfair” and that she “was being discriminated and harassed in
the workplace.” Finally, Wawrzenski complained to Mark and
Serrano-Cobo during the July 2, 2020 investigation meeting, and
in her written report following that meeting, about harassment
and discrimination. According to her statement, Wawrzenski
asked during the meeting, “If I was a male in my swimwear
would you be calling a meeting and holding an investigation,”
which suggested disparate enforcement of the social media policy.
And at the meeting she “reiterated” she was “being targeted
based off solely [her] looks and being a female which is sexist and
discriminatory.” This evidence created triable issues of material
fact regarding whether Wawrzenski’s belief United engaged in
prohibited employment practices was objectively reasonable.
United argues that “Wawrzenski never submitted a formal
complaint through any of United’s official channels . . . until after
her investigatory meeting” and that her complaints were “too
vague to constitute protected activity.” But the law does not
require Wawrzenski to submit a formal complaint; bringing her
concerns to her manager on multiple occasions was enough. (See
Castro-Ramirez v. Dependable Highway Express, Inc., supra,
2 Cal.App.5th at p. 1048 [plaintiff’s repeated oral complaints to
his supervisors about a change in his scheduling, when everyone
50
knew he needed earlier hours to help care for his disabled son,
“showed opposition to a practice he believed was unlawful”];
see also Yanowitz, supra, 36 Cal.4th at p. 1047 [trier of fact could
find the plaintiff’s repeated refusal to comply with a
discriminatory order “sufficiently conveyed” to her manager that
she considered the order unlawful].) And the articulation of her
concerns were quite detailed. For example, Wawrzenski told
Nunn about numerous specific events where she endured
unwelcome comments about her body, including from other
managers who falsely accused her of not complying with the
uniform policy. And her written statement following the July 2,
2020 investigatory meeting explained the basis of her complaint
of disparate treatment.
2. Wawrzenski Created a Triable Issue of Material
Fact Regarding Whether Her Termination Was
Causally Linked to Her Complaints
“Because the employee’s burden of establishing a prima
facie case under McDonnell Douglas is fairly minimal, the
temporal proximity between an employee’s [complaint] and a
subsequent termination may satisfy the causation requirement.”
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353;
see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 990.) “A causal link may be established
with evidence demonstrating that the employer was aware of the
protected activity and the adverse action followed within a
relatively short time.” (California Fair Employment & Housing
Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004,
1018; see Morgan v. Regents of University of California (2000)
51
88 Cal.App.4th 52, 69-70; Day v. Sears Holdings Corp.
(C.D.Cal. 2013) 930 F.Supp.2d 1146, 1180-1181.)
Wawrzenski submitted evidence she complained to Nunn
about United’s enforcement of its uniform policy and the
harassing comments at least three times between December 2019
and May 2020. She made similar complaints and complained
about United’s disparate enforcement of its social media policy on
July 2, 2020 to Mark, who had ultimate decisionmaking authority
regarding whether to terminate Wawrzenski’s employment. And
Mark fired Wawrzenski on July 17, 2020, just two weeks after
Wawrzenski memorialized her complaints in the statement she
drafted following the investigatory meeting. This evidence
created an inference of retaliatory motive. (See McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 468 [gaps of
three to eight months between the plaintiff’s protected conduct
and the employer’s alleged retaliation supported an inference of
causation]; George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492 [gap of several months
constituted “relatively close timing”]; Flores v. City of
Westminster (9th Cir. 2017) 873 F.3d 739, 750 [“‘[d]epending on
the circumstances, three to eight months is easily within a time
range that can support an inference of retaliation’”].)
United argues that, because Wawrzenski made “the bulk of
her purported complaints” between 2015 and early 2019, there is
no temporal proximity between her complaints and her
termination. United’s argument, however, leaves out a few
complaints, and in particular those Wawrzenski made to Nunn in
2019 and 2020 and to Mark and Serrano-Cobo in July 2020. And
the case United relies on for the proposition that the complaints
Wawrzenski made during disciplinary proceedings cannot be the
52
basis for a retaliatory motive because United had already
planned to take an adverse employment action against her, Clark
County School Dist. v. Breeden (2001) 532 U.S. 268, is
distinguishable. The United States Supreme Court stated in
Clark: “Employers need not suspend previously planned
transfers upon discovering that a Title VII suit has been filed,
and their proceeding along lines previously contemplated, though
not yet definitively determined, is no evidence whatever of
causality.” But in Clark the employer did not learn of the
plaintiff’s complaint until after the alleged adverse employment
decision had been made. (See ibid.) Here, Wawrzenski made her
last complaints on July 2, 2020, and United did not terminate her
employment until July 17, 2020. There is also no evidence, as
United suggests, Wawrzenski, “fearing” her job was “on the line,”
raised “an old wound as a preemptive strike to escape
appropriate discipline or discharge.” (Arteaga v. Brink’s, Inc.,
supra, 163 Cal.App.4th at p. 354.) Indeed, she raised both old
wounds and new wounds on July 2, 2020, and United points to no
evidence she did so to escape discipline for violating the social
media policy.
3. Wawrzenski Created a Triable Issue of Material
Fact Regarding Whether United’s Stated
Reasons for Her Termination Were Pretextual
“[T]emporal proximity alone is not sufficient to raise a
triable issue as to pretext once the employer has offered evidence
of a legitimate, nondiscriminatory reason for the termination.”
(Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at p. 353; see
Yphantides v. County of San Diego (S.D.Cal. 2023) 660 F.Supp.3d
935, 961.) As the court in Arteaga explained, “‘Employers are
53
sometimes forced to remove employees who are performing
poorly, engaging in improper work conduct, or severely
disrupting the workplace. . . . Precedent does not prevent [an
employer] from removing such an employee simply because the
employee [recently] engaged in a protected work activity.’”
(Arteaga, at p. 354, brackets in original.) Perhaps, but where
additional circumstantial evidence suggests an impermissible
factor was a substantial reason for an adverse employment
action, an employee can show an inference of pretext. (See
Harris, supra, 56 Cal.4th at pp. 215-217 [where there is evidence
from which a trier of fact could conclude the employer’s action
was caused by unlawful discrimination, and also evidence that it
was caused by nondiscriminatory motivations, the plaintiff must
prove “discrimination was a ‘substantial factor’ in the decision”];
Department of Corrections & Rehabilitation v. State Personnel
Bd., supra, 74 Cal.App.5th at p. 925 [same].)
As discussed in the context of Wawrzenski’s cause of action
for discrimination, Wawrzenski submitted sufficient
circumstantial evidence to create a triable issue of material fact
regarding whether United’s stated reasons for terminating
Wawrzenski were pretextual. From that evidence, 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.
54
E. The Trial Court Erred in Granting United’s Motion
for Summary Adjudication on Wawrzenski’s Cause of
Action for Failure To Prevent Discrimination,
Harassment, and Retaliation Under FEHA
The trial court granted United’s motion for summary
adjudication on Wawrzenski’s cause of action for failure to
prevent discrimination, harassment, and retaliation under FEHA
because the court ruled there were no triable issues of fact on the
underlying causes of action. 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.
F. Wawrzenski Has Not Shown the Trial Court Erred in
Granting United’s Motion for Summary Adjudication
on Her Causes of Action for Whistleblower
Retaliation, Wrongful Termination, and Intentional
Infliction of Emotional Distress
United argued in its motion for summary judgment the
Railway Labor Act (45 U.S.C. § 151 et seq.) (RLA), which
regulates labor relations in the airline industry,14 preempted
Wawrzenski’s causes of action for whistleblower retaliation under
Labor Code section 1102.5, wrongful termination, and intentional
infliction of emotional distress. Without analysis, the trial court
14 See Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732, 742
(“the Railway Labor Act [is] a federal statute governing labor
relations in the railroad and airline industries”); Godfrey v.
Oakland Port Services Corp. (2014) 230 Cal.App.4th 1267, 1277,
fn. 8 (same).
55
ruled, in the appendix to its statement of decision, the RLA
preempted each of those causes of action.
Wawrzenski did not argue in her opening brief the trial
court erred in granting United’s motion for summary
adjudication on her causes of action for whistleblower retaliation,
wrongful termination, and intentional infliction of emotional
distress on the ground of preemption. In its respondent’s brief,
United highlighted this omission and argued Wawrzenski failed
to demonstrate the trial court erred in ruling for United on those
claims. United did not make any other argument regarding
preemption under the RLA.
In her reply brief Wawrzenski argued for the first time the
RLA does not preempt her causes of action for whistleblower
retaliation, wrongful termination, and intentional infliction of
emotional distress. But her argument comes too late. “‘Although
our review of a summary judgment is de novo, it is limited to
issues which have been adequately raised and supported’” in the
plaintiff’s opening brief. (Laabs v. Southern California Edison
Co. (2009) 175 Cal.App.4th 1260, 1271, fn. 5; see Provost v.
Regents of University of California (2011) 201 Cal.App.4th 1289,
1295].) “Basic notions of fairness dictate that we decline to
entertain arguments that a party has chosen to withhold until
the filing of its reply brief, because this deprives the respondent
of the opportunity to address them on appeal.” (In re
Groundwater Cases (2007) 154 Cal.App.4th 659, 693; accord,
People ex rel. Gascon v. HomeAdvisor, Inc. (2020) 49 Cal.App.5th
1073, 1086.) As United argues, Wawrzenski, as the appellant,
has the responsibility to demonstrate the trial court’s ruling was
erroneous. (Ramirez v. City of Gardena (2017) 14 Cal.App.5th
811, 817; see Nealy v. City of Santa Monica (2015)
56
234 Cal.App.4th 359, 372 [“‘[a]s with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively
demonstrate error’” in an appeal from an order granting
summary judgment].)
Wawrzenski contends she did not have to challenge the
trial court’s ruling under the RLA because “the trial court’s order
offered no analysis of this issue.” That’s not how it works. The
trial court did not have to provide analysis; the court only had to
“specify the reasons for its determination,” which it did, ruling
the RLA preempted Wawrzenski’s causes of action for
whistleblower retaliation, wrongful termination, and intentional
infliction of emotional distress. (See Code Civ. Proc., § 437c,
subd. (g).) The trial court’s lack of analysis may have made its
ruling more vulnerable to attack on appeal, but only if
Wawrzenski made that attack in her opening brief, which she
didn’t. Wawrzenski forfeited any argument the RLA does not
preempt her causes of action for whistleblower retaliation,
wrongful termination, and intentional infliction of emotional
distress.15
15 We express no view on the correctness of the trial court’s
ruling.
57
G. Wawrzenski Has Not Shown the Trial Court Erred in
Granting United’s Motion for Summary Adjudication
on Her Claim for Punitive Damages
1. Applicable Law
A plaintiff may recover punitive damages for violations of
FEHA “where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice.”
(Civ. Code, § 3294; see Commodore Home Systems, Inc. v.
Superior Court (1982) 32 Cal.3d 211, 215 [punitive damages are
available for FEHA violations].) Under Civil Code section 3294,
subdivision (b), “punitive damages can properly be awarded
against a corporate entity as a principal, because of an act by its
agents, if the corporate employer authorized or ratified wrongful
conduct. Ratification is shown if an officer, director, or managing
agent of the corporation has advance knowledge of, but
consciously disregards, authorizes, or ratifies an act of
oppression, fraud, or malice.” (Pulte Home Corp. v. American
Safety Indemnity Co. (2017) 14 Cal.App.5th 1086, 1124.) The
parties agree that no officer or director of United authorized or
ratified the alleged discrimination, harassment, retaliation, or
failure to prevent such conduct. They disagree, however, on
whether a managing agent did.
“The term ‘managing agent’ includes ‘only those corporate
employees who exercise substantial independent authority and
judgment in their corporate decisionmaking so that their
decisions ultimately determine corporate policy.’” (Tilkey v.
Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 554; see White v.
Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.) The status “does
not depend on the person’s level within the corporate hierarchy
58
but instead the amount of discretion permitted in making
decisions. [Citation.] Moreover, a managing agent does not need
to be a corporate policymaker and can formulate operational
policies through discretionary decisions.” (Tilkey, at p. 554; see
Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 452-
453.) “The scope of an employee’s discretion and authority is a
question of fact.” (Tilkey, at p. 554; see Davis v. Kiewit Pacific
Co. (2013) 220 Cal.App.4th 358, 366.)
2. Wawrzenski Has Not Cited Evidence To Show a
Managing Agent Authorized or Ratified the
Alleged Misconduct
United argued in its motion for summary judgment that
“those involved in the investigation into [Wawrzenski’s social
media] and the decision to terminate her employment lacked the
requisite authority to constitute United . . . managing agents.” In
her opposition to the motion, Wawrzenski claimed United failed
to include “all the decision makers,” leaving out two executives
Wawrzenski alleged created corporate policy and oversaw base
operations. Wawrzenski, however, cited no evidence to support
her claim those executives had those responsibilities or
participated in the decision to investigate or terminate her
employment.
The trial court granted United’s motion for summary
adjudication on Wawrzenski’s claim for punitive damages
because the court granted the motion for summary adjudication
on all of Wawrzenski’s causes of action. Wawrzenski suggests we
reverse that ruling if we reverse the order granting United’s
motion for summary adjudication on any cause of action and
argues she raised a triable issue of material fact regarding
59
whether she can recover punitive damages because her evidence
showed United “intentionally discriminated” against her. But
United argued, among other things, “those involved in the
decision to terminate Wawrzenski’s employment lacked the
requisite authority to constitute officers, directors, or managing
agents of United.” United provided numerous citations to
evidence identifying the job duties and responsibilities—
including the scope of policymaking authority—for each person
United contends was involved in the decision to investigate
Wawrzenski’s conduct and terminate her employment. That
evidence included official job descriptions and deposition
testimony of Mark, Nunn, Nakasone, Perez, Serrano-Cobo,
Cavanagh, and two other individuals on the management team
Mark consulted before terminating Wawrzenski’s employment.
Based on that evidence, United argues “neither [those
individuals’] management status nor authority to hire and fire
employees renders any of them a . . . managing agent.”
In her reply brief Wawrzenski argues there are triable
issues of material fact regarding whether “the key
decisionmakers” were managing agents. She rightly states
United, as the moving party, had the initial burden to produce
sufficient evidence those individuals were not managing agents.
But she then incorrectly contends United “point[ed] to evidence
which simply restated what it believed to be the applicable legal
standard for the determination of whether these individuals were
its managing agent.” As stated, United’s evidence consisted of
detailed job descriptions and deposition testimony about the
individuals’ job responsibilities and the scope of their authority.
Wawrzenski cites no evidence that would counter United’s
evidence or create a factual issue, nor does she identify who she
60
contends the decisionmakers were and the scope of their
authority. By failing to cite evidence to support her assertion
regarding whether “the key decisionmakers” were managing
agents, Wawrzenski forfeited the argument. (See Audish v.
Macias (2024) 102 Cal.App.5th 740, 751; Champir, LLC v.
Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597;
WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020)
51 Cal.App.5th 881, 895; see also Cal. Rules of Court,
rule 8.204(a)(C) [appellate briefs must “[s]upport any reference to
a matter in the record by a citation to the volume and page
number of the record where the matter appears”].)
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting United’s motion for summary judgment.
The trial court is directed to enter a new order (1) granting
United’s motion for summary adjudication on Wawrzenski’s
causes of action for whistleblower retaliation under Labor Code
section 1102.5, wrongful termination, and intentional infliction of
emotional distress, and on Wawrzenski’s claim for punitive
damages; (2) denying United’s motion for summary adjudication
on Wawrzenski’s causes of action for discrimination, harassment,
retaliation under FEHA, and failure to prevent such conduct; and
61
(3) denying United’s motion for summary judgment. Wawrzenski
is to recover her costs on appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
62