Wawrzenski v. United Airlines, Inc., 2024 WL 4750558 (Cal. Ct. App. 2024)

Alexa Wawrzenski was fired from her position as a United Airlines flight attendant for having a social media account featuring pictures of herself in uniform and wearing a bikini, with a link to an OnlyFans subscription-based account that she advertised as providing “exclusive private content you won’t see anywhere else.” Wawrzenski sued United for gender discrimination, hostile work environment harassment, and retaliation under the FEHA as well as retaliation under the whistleblower statute (Labor Code § 1102.5), wrongful termination in violation of public policy and intentional infliction of emotional distress. The trial court granted United’s motion for summary judgment, but the Court of Appeal reversed in part, holding that Wawrzenski had submitted sufficient evidence that United’s stated reasons for terminating her (violation of various social media policies and related guidelines and failure to remove photographs of her in a United uniform from Instagram) were pretextual based on disparate treatment as compared to male employees who had engaged in similar behavior and a failure to investigate her complaints of discrimination and harassment. The Court of Appeal also held that the trial court erred in ruling that the harassment was not severe or pervasive as a matter of law and that United had not retaliated against Wawrzenski for her complaints. Finally, the Court ruled that the trial court erred in failing to apply the continuing violation doctrine to the claim for hostile work environment harassment.