Wawrzenski v. United Airlines, Inc.

Facts

Alexa Wawrzenski began working for United Airlines in October 2015 as a flight attendant based in Los Angeles; a collective bargaining agreement with the Association of Flight Attendants prescribed the terms of her employment. (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 673 (Wawrzenski).) Three sets of company policies frame the case. United’s Working Together Guidelines “explain what actions are expected of [employees]” across four categories — dignity and respect, honesty, professionalism, and responsibility — and promise: “We defend our employees from harassment and discrimination based on their … gender … or any other protected characteristic under applicable law.” (Ibid.) The Guidelines direct employees to “report concerns promptly until resolved,” identify “a member of [their] management team,” human resources, or an ethics helpline as reporting channels, and prohibit retaliation for reporting misconduct. (Ibid.) United’s social media guidelines reach employees’ networking “on or off the job, including social networking you use without a name or under a false name,” urge “good judgment” and posts with “a positive effect on United’s business interests and reputation,” and require that photographs in uniform comply with United’s uniform standards — under which, for female flight attendants, a skirt or dress “may not exceed [one] inch above or [one] inch below the crease of the back of the knee.” (Ibid.) Finally, United’s Code of Ethics and Business Conduct 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,” listing “outside employment” as an example. (Id. at pp. 673–674.)

Wawrzenski, who described her body type as a very small waist with “larger hips,” testified that throughout her employment she endured harassing and objectifying comments about her body and how she looked in uniform — “several times a month” she heard “offensive jokes” about her “‘breaking necks’” of male employees, remarks about her “‘butt,’” and questions about where she had her “‘surgery done’” and how much she paid for “her body,” along with, “at times,” “an unwanted sexual advance.” (Wawrzenski, supra, 106 Cal.App.5th at p. 674.) The opinion catalogues the incidents. In May 2016 a supervisor stopped her from boarding — after a manager had already cleared her — saying, “Your body looks inappropriate in the uniform,” and issued an “‘appearance infraction’”; at the follow-up meeting the manager conceded the same dress complied with the uniform policy, Wawrzenski complained the criticism was “sexist” and that she faced greater “scrutiny” than male flight attendants — “though she provided no evidence for the latter claim” — and, according to Wawrzenski, United never investigated. (Ibid.) In July 2016 manager Marie Nakasone “scolded” her for a dress that “‘rides up’” when she walks; when Wawrzenski demonstrated the skirt length complied, Nakasone replied that Wawrzenski had “‘hips’” and issued her a size 8 loaner uniform to replace the size 2 or 4 she was wearing. (Ibid.)

The pattern continued. In late 2016 or 2017 a manager made her change, mid-shift and without explanation, into a loaner uniform Wawrzenski claims was identical to her own; her complaint to supervisor Soledad Serrano-Cobo that the order was “sexist” drew no response. (Wawrzenski, supra, 106 Cal.App.5th at p. 675.) In 2017 a pilot “blocked” her way and criticized her performance after complaining about her stud earrings. (Ibid.) In late 2019 a coworker heard a gate agent say of her, “‘the little blonde, white girl … . Where did she come from, the school of Kardashian? She needs to get her money back for her body.’” (Ibid.) When supervisor Chelsea Nunn phoned about a false report that Wawrzenski was out of uniform, Wawrzenski complained she was being “targeted” because she was female and that “males weren’t being subjected to the same scrutiny and level of treatment as females”; Nunn answered that Wawrzenski was a “young, attractive female,” that she should “‘get used to it,’” that “‘this is United,’” and that she would experience “a lot of hate” because she was young and attractive. (Ibid.) In early 2020 a male flight attendant asked her “‘Is your butt real?’” and “‘How did you get a butt like that?’” (Ibid.) In March 2020, after flight attendants on a deadhead flight “made” her change into jeans and Nunn relayed a false “crop top” complaint, Wawrzenski told Nunn the “level of … targeting” seemed to be escalating and 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 her knowledge, United never investigated any of her complaints. (Id. at p. 676.)

On June 11, 2020, United’s ethics and compliance office received an anonymous message: “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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 676.) Attached screenshots showed Wawrzenski’s Instagram home page — eight photographs, two in United uniform and six in a bikini, hosiery, or tops showing cleavage, plus a Linktree link to her other accounts — and the home page of her OnlyFans account, which advertised “Exclusive private content you won’t see anywh[ere else]” for $19.99 per month. The message included no content from the OnlyFans account itself to confirm whether it was “x rated.” (Id. at pp. 676–677.) United assigned inflight supervisor Peter Mark to investigate, and on June 30, 2020 he issued a letter of investigation concerning her “posting suggestive photographs on [her] public Instagram account and soliciting subscriptions to [her] private content site for a fee.” (Id. at p. 677.)

The July 2, 2020 investigation meeting ran six hours and was, “[b]y all accounts,” contentious. (Wawrzenski, supra, 106 Cal.App.5th at p. 677.) Mark and Serrano-Cobo labeled photographs “suggestive” and “explicit” — when Wawrzenski asked what was suggestive about a beach photograph, Serrano-Cobo answered “posing in swimwear” — and, according to Wawrzenski, “insinuated” she was a prostitute by repeatedly saying she was “selling” herself and that her attire depicted a “sexual image that solicits” her. (Id. at p. 678.) Wawrzenski refused to open her OnlyFans account for Mark but said it contained nothing related to United and focused on “lifestyle, workout, fitness, and nutrition content”; her union representative, who had reviewed the account, saw nothing “inappropriate” and no photographs in uniform. (Ibid.) During the meeting Wawrzenski complained she felt harassed by comments about her body, said she believed United would not have received the anonymous complaint were she male, and protested that United did not enforce its social media policy consistently between men and women; Mark responded that “the investigation was about her activities and not those of other employees.” (Ibid.) Her two follow-up voicemails to the human resources contact he supplied were never returned. (Id. at pp. 678–679.) Near the meeting’s end Mark ordered her to remove all uniform photographs from Instagram by midnight. Wawrzenski protested that “males are up on social media … posting nudity, Speedos, swimwear, less than clothing, and … [y]ou’re not investigating them,” and asked whether United was asking “everyone … to remove their photos.” Mark replied, “‘They are not under the same umbrella.’” — a comment the court noted “will have some significance in Wawrzenski’s lawsuit against United.” (Id. at p. 679 & fn. 7.) She called the demand “sexist and discriminatory” but complied, and her written statement memorializing the meeting — which she says Mark asked her to sanitize — retained her complaints of harassment and discrimination and the references to prostitution. (Ibid.) Mark relayed the discrimination complaint to a manager, who knew of no investigation into it but agreed it “should have been investigated.” (Ibid.)

On July 7, 2020, after meeting with a management team, Mark texted that he was willing to resolve the matter with a “PW4” — United’s highest level of performance warning. (Wawrzenski, supra, 106 Cal.App.5th at p. 679.) The next day he learned one uniform photograph remained on the account — an image the union representative described as “so filtered that … [y]ou can’t even tell” the uniform is blue; Wawrzenski said the omission was inadvertent. Mark then decided to terminate rather than warn. (Id. at p. 680.) United’s senior manager for labor relations testified Mark had “ultimate decisionmaking authority” and was “vetting his finding” with a management team that agreed. (Ibid.) The July 17, 2020 termination letter gave four reasons: she “posted suggestive photographs, in conjunction with photographs of [her]self posing in United Airlines uniform on [her] public Instagram account, with a link soliciting to join a private content, fee-required site”; she failed to remove all uniform photographs by the deadline; she violated the Working Together Guidelines and social networking guidelines; and she created a “direct conflict of interest” under the Code of Ethics. The letter added that her failure “to recognize the seriousness of [the] offense” contributed to the decision. (Id. at pp. 680–681.)

Procedural history

Wawrzenski filed a complaint with the Department of Fair Employment and Housing (now the Civil Rights Department), obtained a right-to-sue letter in October 2020, and sued, alleging gender discrimination, hostile work environment harassment, and retaliation in violation of the FEHA; failure to prevent discrimination, harassment, and retaliation; whistleblower retaliation under Labor Code section 1102.5; wrongful termination in violation of public policy; and intentional infliction of emotional distress, with a claim for punitive damages. (Wawrzenski, supra, 106 Cal.App.5th at p. 681.)

United moved for summary judgment or, alternatively, summary adjudication on 31 issues covering every cause of action, and the trial court granted the motion in its entirety, ruling that United “has shown a legitimate non-discriminatory basis for terminating” her and that she had not shown pretext. (Wawrzenski, supra, 106 Cal.App.5th at p. 681.) As to discrimination, the court held Mark’s “umbrella” remark was not direct evidence and rejected her evidence that male flight attendants with similar social media accounts were treated better. (Id. at pp. 681–682.) As to harassment, it ruled the conduct neither severe nor pervasive as a matter of law, appeared (by citing Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918) to treat some allegations as time-barred, and reasoned that “solicit” was not harassing because “the term solicitation can refer to any good or service one wants to sell.” (Id. at p. 682.) As to retaliation, it found no causal connection: her complaints during the investigation meeting concerned “a different subject” than the investigation, and Mark did not decide to fire her until after the photograph was found still posted. (Ibid.) The failure-to-prevent, section 1102.5, wrongful termination, emotional distress, and punitive damages theories fell derivatively. (Id. at pp. 682–683.) Wawrzenski appealed from the judgment. (Id. at p. 683.) The Court of Appeal filed its opinion October 22, 2024, ordered it published as modified on November 12, 2024, modified it again on denial of rehearing December 11, 2024, and the Supreme Court denied review February 11, 2025. (Id. at pp. 663, 705.)

Issue

In the published portions of the opinion: (1) whether triable issues of material fact defeated summary adjudication of the gender discrimination claim — specifically, whether Mark’s “umbrella” remark was direct evidence, whether Wawrzenski made a prima facie case with evidence of three male employees treated more favorably, and whether her showing of disparate enforcement, uninvestigated complaints, and a discriminatory atmosphere raised a triable issue of pretext; (2) whether the continuing violation doctrine let her rely on pre-2019 harassment evidence, and whether the harassment was sufficiently severe or pervasive under Government Code section 12923; (3) whether her complaints were protected activity causally linked to her termination for purposes of FEHA retaliation; and (4) whether the derivative failure-to-prevent ruling could stand. (Wawrzenski, supra, 106 Cal.App.5th at p. 672.) In the unpublished portions (parts F. and G.), the court addressed forfeiture of her remaining claims. (Id. at pp. 672–673.)

Holding

Reasoning

The de novo lens. The court began from the settled summary judgment architecture of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826: the moving defendant bears the burden of persuasion that no triable issue of material fact exists, and a defendant meets its initial burden of production by showing the plaintiff cannot establish at least one element of the cause of action. (Wawrzenski, supra, 106 Cal.App.5th at pp. 683–684.) On appeal the record is reviewed de novo, the opposing party’s evidence liberally construed, and — critically for this appeal — “‘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.’” (Id. at p. 684.)

Discrimination: the “umbrella” remark was not direct evidence. Applying the burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, as California adopted it in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, the court first rejected Wawrzenski’s contention that Mark’s remark — “‘No, we cannot put everyone under the same umbrella’” — was direct evidence of discriminatory animus that would bypass burden-shifting altogether. (Wawrzenski, supra, 106 Cal.App.5th at pp. 684–686.) Direct evidence “proves the fact of discriminatory animus without inference or presumption”; the umbrella comment “requires an inference,” because as pleaded Mark said it in response to a question about “all 90,000 employees,” and “[i]t is unclear from Wawrzenski’s allegation whom Mark included in his reference to ‘everyone.’” (Id. at p. 686.) Her appellate recharacterization — that Mark said “males” were not under the same umbrella — collided with her own complaint: “Wawrzenski cannot now change her story to avoid summary adjudication.” (Ibid.)

The prima facie case: comparator evidence “(barely)” sufficed. United conceded the first three prima facie elements and contested only circumstances suggesting discriminatory motive. (Wawrzenski, supra, 106 Cal.App.5th at p. 687.) Construing the evidence liberally, the court held Wawrzenski “(barely) met her burden on the first step of the McDonnell Douglas framework” with evidence of three male “comparators.” (Ibid.) “Cameron,” a Denver-based flight attendant, had an Instagram account with pictures of himself “almost nude” and in uniform, linked to a drag account listing booking and payment details — he received only a level 4 performance warning; “Juliano,” a San Francisco flight attendant with “suggestive pictures, videos and captions” alongside uniform photographs, likewise received only a level 4 warning after removing certain pictures — United concluded he was “not meaningfully trying to violate any United policies”; and “AviatorDave,” a United “brand ambassador,” posted pictures in uniform, in swimwear, shirtless in open bathrobes, and in bed, with a link to “Aviator Dave TV,” where subscribers could access information about flying — his supervisor testified she had never seen his accounts. (Id. at p. 688.) Evidence that an employer treated similarly situated employees outside the protected class more favorably, the court reiterated, “is probative of the employer’s discriminatory or retaliatory intent.” (Ibid.)

The pivotal move: “similarly situated” is ordinarily a jury question, and the trial court demanded identity. United argued the three men were “not proper comparators” because they held different positions, engaged in different conduct, and answered to different supervisors. (Wawrzenski, supra, 106 Cal.App.5th at p. 689.) The court acknowledged authority citing such differences but held that “whether the plaintiff is similarly situated to other employees is generally a question of fact,” that comparators’ “roles need not be identical; they must only be similar ‘in all material respects,’” and that “[m]ateriality will depend on context and the facts of the case.” (Ibid.) The trial court’s factual observations about the comparators were “(mostly) accurate,” but it “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.” (Ibid.) The similarities mattered: all four accounts showed employees in uniform and partially nude or in swimwear; two of the three comparators’ accounts linked or referred to monetized accounts; and “the same social media policy applied to all four employees for the same purposes.” (Id. at p. 690.) Which similarities and differences are relevant “depends on the context and is a question of fact that ‘cannot be mechanically resolved,’” so “[a] reasonable fact finder could conclude Wawrzenski and the three male United employees were ‘sufficiently similarly situated to support an inference of discrimination.’” (Ibid.) Answering United’s rehearing petition, the court added that a “same supervisor” requirement does not apply where the plaintiff and comparators must follow the same policies and the employer coordinates discipline nationally — as Mark himself testified, he consulted a management team to confirm he was applying “company policies in a consistent manner … across the company.” (Id. at p. 690, fn. 13.)

Pretext: disparate enforcement, a missing investigation, and a discriminatory atmosphere. Wawrzenski did not dispute that United carried its burden of producing legitimate reasons; the battleground was pretext, and the court identified three mutually reinforcing showings. (Wawrzenski, supra, 106 Cal.App.5th at pp. 690–691.) First, “[s]howing disparate treatment or policy enforcement is a permissible means to establish pretext,” and the comparator evidence did that work. (Id. at p. 691.) Second, United’s failure to investigate her complaints of discrimination and harassment was itself evidence of pretext — the court relied on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 — and United’s insistence that she never complained “in writing or through formal channels” failed because she repeatedly complained to her supervisor Nunn, the Guidelines authorized exactly that, “[n]othing in the Guidelines or FEHA required Wawrzenski to report suspected discrimination and harassment through every channel available to her,” she did complain in writing in her July 2 statement, and a United manager admitted the complaints “should have” been investigated. (Ibid.) Third, Nunn’s “get used to it” and “a lot of hate” remarks evidenced a discriminatory atmosphere; although Nunn was not a decisionmaker, she made the statements just months before the termination, and the court cited Reid v. Google, Inc. (2010) 50 Cal.4th 512, 545 for the principle that the probative value of “stray remarks … turns on the facts of each case.” (Id. at pp. 691–692.) Together the three categories “met Wawrzenski’s burden on the third step of the McDonnell Douglas framework.” (Id. at p. 692.)

Harassment: the continuing violation doctrine reached back before 2019. Because Wawrzenski did not file her administrative complaint until October 2020 — and the pre-2020 limitations period was one year, with Assembly Bill No. 9’s three-year extension expressly not reviving lapsed claims — United argued her pre-2019 harassment allegations were time-barred. (Wawrzenski, supra, 106 Cal.App.5th at pp. 694–695.) The court held the continuing violation doctrine of Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 governed: “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,” provided the acts are sufficiently similar in kind, sufficiently frequent, and have not acquired permanence. (Id. at p. 695, quoting Yanowitz, at p. 1056.) Procedurally, the trial court had never actually ruled the doctrine inapplicable — it merely cited Pollock and stated, incorrectly, that Wawrzenski never argued the doctrine — so there was no adverse ruling she had to attack in her opening brief. (Id. at pp. 695–696.) On the merits, her declaration and deposition testimony that she “regularly heard or learned about offensive comments directed at her body or at the way her uniform looked on her body” before 2019 was similar in kind and frequency to the post-2019 conduct: the incidents “all focused on Wawrzenski’s body.” (Id. at p. 696.) One caveat: a 2015 “unwanted touching” incident, never pleaded and without any similar post-2019 conduct, remained time-barred. (Id. at p. 696, fn. 14.)

Harassment: section 12923’s “low bar” defeats summary adjudication. Drawing the elements from Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, and Miller v. Department of Corrections (2005) 36 Cal.4th 446 — unwelcome conduct, because of sex, sufficiently severe or pervasive, judged by the totality of the circumstances — the court emphasized how Government Code section 12923 (effective 2019) recalibrated the summary judgment inquiry. (Wawrzenski, supra, 106 Cal.App.5th at pp. 692–694.) Before 2019 the severe-or-pervasive requirement “was quite a high bar”; section 12923 declared a single incident sufficient to create a triable issue if it unreasonably interfered with work performance or created an intimidating, hostile, or offensive environment, and codified the Legislature’s judgment that “[h]arassment cases are rarely appropriate for disposition on summary judgment” — affirming Nazir. (Id. at pp. 693–694.) Wawrzenski “had to show only that the harassing conduct sufficiently offended, humiliated, distressed, or intruded on her” so as to disrupt her emotional tranquility, and “[t]he evidence Wawrzenski submitted met this low bar”: monthly offensive comments about her body, remarks about her “‘butt,’” repeated forced uniform changes “based on unfounded accusations,” and a workplace that became “miserable.” (Id. at p. 697.) United’s counterarguments failed seriatim. Management was sufficiently apprised — several harassers were managers or supervisors who “may qualify as ‘supervisors’ under FEHA and trigger strict liability” (see § 12926, subd. (t)), and she repeatedly told Nunn, with no evidence anyone acted. (Id. at pp. 697–698.) The comments were not sex-neutral: a fact finder could infer the “butt” and “breaking necks” remarks and unwanted advances had “sexual connotations” or were based on gender, and that some speakers were women “does not mean the comments were not sufficiently ‘sexual.’” (Id. at p. 698.) And United’s severity authorities predated section 12923: Hughes v. Pair (2009) 46 Cal.4th 1035 was decided “under very different standards,” and to the extent it suggested an isolated incident is “severe” only if it involves physical assault or the threat of it, “such a suggestion is no longer the law” — “[a] physical assault or threat is not required.” (Id. at pp. 698–699.) Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336 is likewise “no longer good law” and distinguishable besides: its plaintiff showed three incidents over years; Wawrzenski showed offensive gender-based comments “several times a month.” (Id. at p. 699.)

Retaliation: detailed, repeated complaints were protected activity. Under Government Code section 12940, subdivision (h), and Yanowitz, protected activity includes opposing conduct the employee reasonably and in good faith believes discriminatory, “even when a court later determines the conduct was not actually prohibited by the FEHA,” measured by both a subjective and an objective component. (Wawrzenski, supra, 106 Cal.App.5th at pp. 699–700.) Wawrzenski’s complaints to Nunn, Nakasone, and Serrano-Cobo, and her complaints to Mark at the July 2 meeting and in her written statement, created triable issues on the subjective side; on the objective side she had called the conduct “sexist,” told Nunn she “was being discriminated and harassed in the workplace,” and asked during the investigation meeting, “If I was a male in my swimwear would you be calling a meeting and holding an investigation.” (Id. at p. 701.) United’s “formal complaint” and vagueness objections failed: “‘[A]n employee is not required to use legal terms or buzzwords when opposing discrimination’” (id. at pp. 700–701, quoting Yanowitz, at p. 1047), bringing concerns to her manager repeatedly “was enough,” and “the articulation of her concerns were quite detailed.” (Id. at p. 702.)

Causation: two weeks is close enough, and Clark County does not save the employer. Because the prima facie burden is “fairly minimal,” temporal proximity between complaint and termination can satisfy causation: “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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 702.) Wawrzenski complained to Nunn at least three times between December 2019 and May 2020 and complained to Mark — “who had ultimate decisionmaking authority” — on July 2, 2020; “Mark fired Wawrzenski on July 17, 2020, just two weeks after Wawrzenski memorialized her complaints in the statement she drafted following the investigatory meeting.” (Ibid.) United’s reliance on Clark County School Dist. v. Breeden (2001) 532 U.S. 268 — that proceeding along lines already contemplated is “no evidence whatever of causality” — was misplaced: in Clark the employer did not learn of the protected activity until after the adverse decision, whereas “Wawrzenski made her last complaints on July 2, 2020, and United did not terminate her employment until July 17, 2020,” and nothing suggested she raised “an old wound as a preemptive strike to escape appropriate discipline or discharge.” (Id. at p. 703.)

Retaliatory pretext: proximity plus. The court acknowledged Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327: “[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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 703.) But where additional circumstantial evidence suggests an impermissible factor was a substantial reason for the action — the standard drawn from Harris v. City of Santa Monica (2013) 56 Cal.4th 203, under which discrimination need only be “a ‘substantial motivating factor,’” not a but-for cause — the inference of pretext follows. (Id. at pp. 685, 703–704.) The same evidentiary triad that defeated summary adjudication of the discrimination claim did so here: “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.” (Id. at p. 704.)

Failure to prevent rises with the underlying claims. The trial court had adjudicated the failure-to-prevent cause of action solely because the substantive FEHA claims failed; with those rulings reversed and no independent ground offered, the failure-to-prevent ruling fell too. (Wawrzenski, supra, 106 Cal.App.5th at p. 704.)

Significance

Wawrzenski is the most substantial published California treatment of comparator evidence at summary judgment in years, and its core instruction is institutional: identifying the “relevant” respects in which employees must be similar “is generally a question of fact” that belongs to the jury, not the law-and-motion judge. (Wawrzenski, supra, 106 Cal.App.5th at p. 689.) The opinion knits California’s comparator cases (Guz, Gupta, Wills, McGrory) to the Ninth Circuit’s flexible line (Hawn, Earl, Beck), rejecting any demand that comparators be identical in all respects and — in a footnote added on rehearing — a categorical same-supervisor requirement where a national employer applies uniform policies through coordinated discipline. (Id. at pp. 689–690 & fn. 13.) For employers that enforce appearance, uniform, social media, or off-duty-conduct policies, the decision makes enforcement symmetry the decisive summary judgment fact; for plaintiffs, it confirms that comparator proof can carry both the fourth prima facie element and pretext.

The harassment discussion is equally consequential. Joining Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, Division Seven holds that pre-2019 severity precedents — including the physical-assault gloss sometimes drawn from Hughes v. Pair — “are no longer good law” for summary judgment purposes after section 12923, and it applies the statute’s declarations as operative law: a single qualifying incident can create a triable issue, and “[h]arassment cases are rarely appropriate for disposition on summary judgment.” (Wawrzenski, supra, 106 Cal.App.5th at pp. 694, 698–699.) The court’s continuing-violation analysis — linking pre- and post-2019 conduct because it “all focused on Wawrzenski’s body” — shows how modest the “similar in kind” showing can be. (Id. at p. 696.) And the retaliation holding supplies a clean, citable illustration of two-week temporal proximity plus corroborating circumstantial evidence defeating summary adjudication notwithstanding Arteaga, while confining Clark County to employers who decided before they knew. (Id. at pp. 702–704.)

Finally, the opinion’s posture bears noting. It reversed a complete defense judgment while leaving intact — through unpublished forfeiture holdings — summary adjudication of the Labor Code section 1102.5, wrongful termination, emotional distress, and punitive damages claims, so the case returned for trial as a FEHA case without a punitive damages claim. (Wawrzenski, supra, 106 Cal.App.5th at pp. 672–673, 705.) The court decided only that triable issues exist; it did not hold that United discriminated, harassed, or retaliated. The decision survived a rehearing petition (with modifications) and a petition for review, making it safely citable — as modified — for its comparator, section 12923, and causation holdings.

Key quotes

“In rejecting this ‘comparator’ evidence, the trial court usurped the role of the fact finder to determine whether the comparators were similarly situated to Wawrzenski to show discriminatory animus and pretext.” (Wawrzenski, supra, 106 Cal.App.5th at p. 672.)

“[T]he 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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 689.)

“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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 699.)

“[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.” (Wawrzenski, supra, 106 Cal.App.5th at p. 704.)

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Practice pointer

Open questions

The court decided only that a jury must resolve these claims; whether the comparators were in fact similarly situated, whether the harassment actually altered working conditions, and whether retaliation actually motivated the termination all remain open for trial. (Wawrzenski, supra, 106 Cal.App.5th at pp. 690, 697, 704.) Several narrower reservations are worth mining. The court expressly declined to address Wawrzenski’s second category of harassment evidence — the July 2, 2020 meeting statements she says “insinuated” she was a prostitute — because the body-comment evidence alone defeated summary adjudication: “We need only address the first.” (Id. at p. 697.) It held only that the manager-harassers “may qualify” as supervisors under section 12926, subdivision (t), leaving the strict-liability characterization unresolved. (Ibid.) Wawrzenski forfeited her fallback argument that the “umbrella” remark was “at the very least ambiguous” direct evidence when read against the circumstantial backdrop, so the line between ambiguous remarks and direct evidence in this setting awaits another case. (Id. at p. 686, fn. 9.) The unpublished forfeiture rulings mean the opinion offers no citable guidance on the Labor Code section 1102.5 theory — including whether her COVID-era Instagram post could be protected disclosure — or on punitive damages. (Id. at pp. 672–673.) And footnote 14’s holding that the unpleaded 2015 touching incident was time-barred, because no similar conduct continued after January 2019, underscores an unanswered line-drawing question: how granular must the “similar in kind” comparison be when a plaintiff’s harassment evidence spans categories of conduct? (Id. at p. 696, fn. 14.)