Soldinger v. Northwest Airlines, Inc.

Facts

The Fair Employment and Housing Act makes it “an unlawful employment practice . . . [f]or an employer . . . to discharge a person from employment . . . or to discriminate against a person . . . because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance . . . .” (Gov. Code, § 12940, subd. (j); Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 369–370.) FEHA more generally “establishes freedom from job discrimination on specific grounds, including religious discrimination,” and “prohibits employers from discharging, retaliating or otherwise discriminating against people on the basis of religion.” (Id. at pp. 366–367; Gov. Code, § 12940, subds. (a), (f).) California courts “look to the federal cases interpreting title VII (42 U.S.C. § 2000e(j)) in evaluating failure to accommodate allegations.” (Soldinger, supra, 51 Cal.App.4th at p. 370, fn. 11.)

Geraldine Soldinger “was a conservative Jew”; she kept a kosher home and “strictly observed the three major Jewish holidays, Yom Kippur, Rosh Hashanah and Passover,” treating them as days of observance on which the family “did not drive, answer the telephone or watch television.” (Soldinger, supra, 51 Cal.App.4th at p. 354.) She began work with Northwest Airlines’s predecessor in 1977, and during her fourteen years there “had never worked on the three major Jewish holidays, which included the first two days of Passover.” (Ibid.)

Soldinger’s employment was governed by a collective bargaining agreement (CBA) between Northwest and the International Association of Machinists and Aerospace Workers, which “controlled the methods by which employees obtained days off.” (Soldinger, supra, 51 Cal.App.4th at p. 354.) Annual vacation bids were awarded by seniority; employees could also request a “day-at-a-time” (DAT) off no more than 14 days in advance, and if denied “could trade with other employees.” (Id. at pp. 354–355.) Northwest “did not have a written policy regarding time off for religious holidays,” and “routinely replaced employees who were absent from work,” covering shifts “even on short notice.” (Id. at p. 355.)

For 1991, Soldinger’s seniority-based vacation bid for the week beginning Passover was unsuccessful. (Soldinger, supra, 51 Cal.App.4th at p. 355.) She traded for several days but still needed Sunday, March 31, 1991 — which “also happened to be Easter Sunday.” (Ibid.) Her DAT request for that day was denied; she posted a sign reading “‘[D]esperate. Need need Sunday, March 31 off. Will pay back Thursday, Friday, Saturday,’” and “unsuccessfully asked more than 15 employees” to trade. (Ibid.) She left a note for station-operations manager Steven Holme asking for the day off “if necessary without pay,” because it was a Jewish holiday. (Ibid.) When Holme discussed the note with her, she said the day was a religious holiday and she could not work; Holme replied, “‘You’re not here, you’re fired,’” and, “‘Well, what makes you think it’s more important for you to have your holiday off than someone celebrating Easter?’” He “made no attempt to assist Soldinger in securing the day off.” (Id. at pp. 355–356.)

On March 31, roughly 50 to 60 people worked in operations, eight others were qualified for the department but assigned elsewhere, and Northwest replaced Soldinger with two employees, “covering Soldinger’s responsibilities with ease.” (Soldinger, supra, 51 Cal.App.4th at p. 356.) She was fired on April 8, 1991, the airline claiming insubordination and being “AWOL.” (Ibid.) The record contained evidence that Northwest treated comparable conduct by non-Jewish employees differently: a non-Jewish coworker who had made antisemitic remarks obtained the same day off through a shift switch arranged by his supervisor; no other employee had been fired for being AWOL or for insubordination; and of nine other customer-service agents fired in 1991, “none was fired for being insubordinate or AWOL.” (Id. at pp. 356–357.)

After a union grievance and arbitration, Soldinger was reinstated without backpay and returned in March 1992. (Soldinger, supra, 51 Cal.App.4th at pp. 356–357.) The record reflected further hostility on her return — a manager said she “should not have gotten her job back,” another supervisor made antisemitic remarks, she was denied required training and bumping rights, and a supervisory bid was given to a less-senior employee. (Id. at p. 357.) She filed two DFEH charges (April 12, 1991 and June 30, 1993), each of which was rejected with a right-to-sue letter. (Ibid.)

Procedural history

Soldinger sued Northwest in Los Angeles County Superior Court, ultimately alleging three causes of action: tortious discharge and retaliation in violation of public policy under Government Code section 12940 and the California Constitution; religious discrimination under section 12940; and intentional infliction of emotional distress. (Soldinger, supra, 51 Cal.App.4th at p. 357.) The “gravamen” of the complaint was that Northwest discriminated against her “by failing reasonably to accommodate her religious beliefs, terminating her employment for behavior which was normally tolerated and retaliating against her for taking legal action.” (Ibid.)

Northwest moved for summary judgment, arguing that the RLA preempted the suit, that it had reasonably accommodated Soldinger’s beliefs, and that the public-policy claim failed for want of exhaustion. (Soldinger, supra, 51 Cal.App.4th at pp. 357–358.) The trial court granted the motion, holding there were no triable issues and that (1) the causes of action were preempted by the RLA, (2) Northwest had reasonably accommodated Soldinger, and (3) the retaliation claim failed for failure to exhaust administrative remedies. (Id. at p. 358.) Judgment was entered for Northwest, and Soldinger appealed. (Ibid.) Because the matter arose on summary judgment, the Court of Appeal viewed the facts “in the light most favorable to Soldinger.” (Id. at p. 354.) The court reversed, with Klein, P. J., and Kitching, J., concurring; the Supreme Court denied review on March 12, 1997. (Id. at pp. 358, 383.)

Issue

The opinion frames four questions: (1) whether the RLA preempts Soldinger’s FEHA allegations of religious discrimination and retaliation; (2) whether the RLA preempts her failure-to-accommodate allegation under section 12940, subdivision (j), and whether the CBA “in itself, constitute[s] an accommodation”; (3) whether the RLA preempts her IIED claim; and (4) whether she exhausted her administrative remedies as to retaliation. (Soldinger, supra, 51 Cal.App.4th at pp. 353–354.) The “primary question presented is whether an airline employee may pursue available state law remedies against her employer for religious discrimination, retaliation, and failure to accommodate her religious beliefs or whether she may seek redress only through the RLA’s arbitral mechanism.” (Id. at p. 353.)

Holding

Reasoning

The RLA preempts only “minor disputes” turning on the CBA. The court grounded its analysis in Hawaiian Airlines, Inc. v. Norris (1994) 512 U.S. 246. The RLA “establishes a mandatory arbitral mechanism” for “major” disputes (over the formation of agreements) and “minor” disputes, which “‘gro[w] out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’” (Soldinger, supra, 51 Cal.App.4th at pp. 358–359, quoting Norris.) Both classes are preempted, but “minor disputes” do not “‘mean all employment-related disputes, including those based on statutory or common law’”; they are confined to “‘those that involve duties and rights created or defined by the CBA.’” (Id. at p. 359.) The “key is whether the CBA must be interpreted or applied”; preemption “‘of employment standards within the traditional police power of the State should not be lightly inferred,’” and “[e]very lawsuit which may relate in some way to a collective bargaining agreement is not necessarily preempted.” (Id. at pp. 359–360, quoting Norris and Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202.)

The discrimination and retaliation claims rest on independent state-law rights. Examining “the basis of her causes of action and the elements she must prove,” the court held the disparate-treatment and retaliation theories could “be evaluated apart from the CBA.” (Soldinger, supra, 51 Cal.App.4th at pp. 366–367.) Disparate treatment requires a showing that “the employer treated the employee differently because of” a protected characteristic; retaliation requires protected activity, an adverse action, a causal link, and pretext. (Id. at p. 367.) Soldinger alleged she “was treated differently from Christian employees” and retaliated against “because she brought forth an accusation of religious discrimination” — allegations “not grounded in or based solely upon an interpretation of the CBA.” (Ibid.) Her right to be free from religious discrimination “emanates from California’s public policy,” the “CBA did not establish a framework for challenging allegedly discriminatory behavior,” and she did “not allege Northwest Airlines breached the CBA in operating the bidding procedures.” (Id. at pp. 367–368.) The court drew directly on a line of Ninth Circuit FEHA-preemption cases — Jimeno v. Mobil Oil Corp. (9th Cir. 1995) 66 F.3d 1514, Espinal v. Northwest Airlines (9th Cir. 1996) 90 F.3d 1452, and especially Felt v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1995) 60 F.3d 1416, which it called “virtually identical to Soldinger’s lawsuit” — for the proposition that antidiscrimination rights “‘exist independent of the collective bargaining agreement.’” (Id. at pp. 363–366.) Crucially, “the CBA, a private contract, cannot alter California’s public policy prohibiting discrimination based upon religion.” (Id. at p. 368.)

A “justification defense” built on the CBA does not create preemption. The court rejected Northwest’s argument that, because it “followed the CBA’s bidding procedures,” the dispute became a minor one. Relying on Norris and Gay v. Carlson (2d Cir. 1995) 60 F.3d 83, it held that “the possibility that reference may be made to a collective bargaining agreement in connection with a justification defense . . . does not give rise to pre-emption of state-law tort claims.” (Soldinger, supra, 51 Cal.App.4th at p. 368.) The “‘arguably justified’” test, the court explained, was developed “only for policing the line between major and minor disputes,” and “said nothing about the threshold question whether the dispute was subject to the RLA in the first place.” (Id. at pp. 368–369.) So long as the state-law claim “turn[s] on factual questions relating to the employee’s conduct and the employer’s conduct and motivation,” the CBA “is not being interpreted” and there is no preemption. (Id. at p. 369.)

The accommodation standard — and why this employer fell short of it. Turning to the merits of the section 12940, subdivision (j) claim, the court set out the burden-shifting framework: the employee must make a prima facie showing of “a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement,” after which “the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship.” (Soldinger, supra, 51 Cal.App.4th at p. 370.) Here the court articulated the standard the assignment foregrounds: “Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee.” (Ibid.) Reasonableness “is determined on a case by case basis,” the “obligation to search for an acceptable solution is bilateral,” and once the employer “has offered a reasonable accommodation, the employer need not show that each of the employee’s proposed accommodations would result in undue hardship” — “where the employer has already reasonably accommodated the employee’s religious needs, the . . . inquiry [ends].” (Ibid.) Undue hardship is reached “only where the employer claims that it is unable to offer any reasonable accommodation,” and exists where accommodation “‘results in “more than a de minimis cost” to the employer.’” (Id. at p. 371, quoting Ansonia Board of Education v. Philbrook (1986) 479 U.S. 60, and Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63.) But on this record — where Northwest, after learning of the conflict, “did nothing,” “did not inquire as to whether a change in work assignments would have been acceptable to the Union,” “did not make any inquiries to other employees,” and “did not consult with its attorneys to determine if a swap was possible under the CBA” — the threshold of “a reasonable accommodation” had not been met as a matter of law. (Id. at pp. 373–374.) Because the only facts were that the work “was covered ‘with ease,’” the court “cannot conclude an accommodation would have caused Northwest Airlines undue hardship.” (Id. at pp. 373–374.)

The CBA, “in the abstract,” is not an accommodation. Northwest’s central merits argument — that the neutral, seniority-based bidding system itself discharged the duty — was rejected as “a matter of law” on this record. (Soldinger, supra, 51 Cal.App.4th at pp. 374–375.) Whether an accommodation is reasonable “depends upon the circumstances under which a particular accommodation may cause hardship that is ‘undue,’” and “[w]hether an employer has met its statutory burden to initiate good-faith efforts to accommodate . . . is a question of fact.” (Id. at p. 375.) The court distinguished Hardison as a decision “after a trial” resting on “detailed factual findings” that TWA had tried to accommodate but was thwarted by the union, and that every alternative would have imposed more than a de minimis cost or stripped senior employees of seniority rights. (Id. at pp. 371–372, 375.) Hardison held only that title VII did not require an employer and union “‘to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices’”; it did not hold that a neutral bidding system, in the abstract, is per se a reasonable accommodation, and indeed noted “‘neither a collective-bargaining agreement nor a seniority system may be employed to violate [title VII].’” (Id. at pp. 372, 374–375.) Following E.E.O.C. v. Hacienda Hotel (9th Cir. 1989) 881 F.2d 1504 and Hudson v. Western Airlines, Inc. (9th Cir. 1988) 851 F.2d 261, the court held employers “may not use a collective-bargaining agreement . . . as a shield against [their] statutory obligation,” and that the agreement must be examined “as it applied to” the case, not “in the abstract.” (Id. at pp. 374–375.) The court was careful to add, in a footnote, that summary judgment is not categorically unavailable: “If facts are properly developed in a summary judgment motion, particularly because an employer need only prove it would have incurred a de minimis burden had it accommodated the employee’s religious beliefs, summary judgment may be granted in the appropriate case.” (Id. at p. 375, fn. 12.)

The IIED claim turns on motive, not contract meaning. Applying the same preemption logic to the emotional-distress tort, the court explained that “the ‘extreme and outrageous’ character of certain sorts of employer conduct may be evident without reference to the terms of the collective bargaining agreement.” (Soldinger, supra, 51 Cal.App.4th at pp. 377, 379.) Soldinger’s claim rested on the allegation that Northwest “terminated her employment when she once did not appear for work, yet it did not punish similar behavior of Christians.” (Id. at p. 379.) That factual dispute “will not involve the CBA’s time-off mechanisms, but rather Northwest Airlines’s motives.” (Ibid.) Although “[a] grievance proceeding could determine if Soldinger was AWOL, it could not determine if Northwest Airlines considered Soldinger’s religious beliefs in terminating” her, so “simply consulting the agreement does not eliminate Soldinger’s state claim.” (Ibid.) “The jury will have to determine if the conduct is ‘outrageous’ in light of Northwest Airlines’s rights, duties and obligations under the contract; however, an interpretation of the contract is not required.” (Ibid.)

Exhaustion: a DFEH charge is not a limiting device. Finally, the court rejected the argument that Soldinger failed to exhaust her retaliation claim because her DFEH charges did not mirror her amended complaint. (Soldinger, supra, 51 Cal.App.4th at pp. 380–382.) Claimants “are not held to specify the charges with literary exactitude,” and incidents not described in a charge may be sued upon if they “‘would necessarily have been discovered by investigation of the charged incidents,’” i.e., if “like or related.” (Id. at p. 381.) Soldinger’s second DFEH charge, filed after her initial civil complaint, alleged retaliation “because she had accused Northwest Airlines of discrimination,” such that “DFEH reasonably would have investigated all aspects of Soldinger’s claims of retaliation.” (Id. at pp. 381–382.) Whether the retaliation responded to filing the DFEH charge or the civil suit was immaterial; “the import of Soldinger’s retaliation claims . . . was that Northwest Airlines retaliated against [her] for raising accusations of discrimination.” (Id. at p. 382.)

Significance

Soldinger is one of the leading California authorities on two intertwined questions: when the Railway Labor Act preempts an airline or railroad employee’s state employment claims, and what a California employer must actually do to discharge its FEHA duty to accommodate an employee’s religious observance. On preemption, the decision is squarely in the post-Hawaiian Airlines v. Norris line that narrowed RLA preemption to disputes genuinely requiring interpretation of the collective bargaining agreement. By holding that FEHA discrimination, retaliation, accommodation, and IIED claims survive merely because the CBA may be “consulted,” the court confirmed that employees in RLA-governed industries retain the full benefit of California’s antidiscrimination statutes — and that an employer cannot convert a state claim into an arbitrable “minor dispute” simply by raising a contract-based justification defense.

On accommodation, the decision’s lasting contribution is its refusal to treat a neutral, seniority-based CBA as a self-executing accommodation. The court accepted the employer-protective half of the doctrine in full — “[a]ny reasonable accommodation is sufficient,” and the employer “need not adopt the most reasonable accommodation nor . . . accept the remedy preferred by the employee” (Soldinger, supra, 51 Cal.App.4th at p. 370) — yet insisted that the employer must first do something. Where an employer “did nothing,” the existence of a neutral bidding system does not, “in the abstract,” supply the reasonable accommodation the statute demands. (Id. at pp. 373, 374–375.) The opinion thus reads Hardison narrowly: Hardison’s deference to seniority systems rested on developed trial facts showing the employer had tried and that all alternatives imposed more than a de minimis cost, not on a categorical rule that a CBA equals accommodation. The decision sits comfortably within the modern CACI framework — CACI No. 2560 (religious-creed discrimination — failure to accommodate) and No. 2561 (the undue-hardship defense) — and remains a workhorse citation for the proposition that whether an employer initiated good-faith efforts is a question of fact ill-suited to summary judgment on a thin record. Practitioners should note, however, that the FEHA accommodation provision the court cited as subdivision (j) has since been renumbered (now Gov. Code, § 12940, subd. (l)), and that California has since rejected title VII’s “de minimis” undue-hardship gloss in favor of the statutory “significant difficulty or expense” standard (Gov. Code, § 12926, subd. (u)) — so Soldinger’s reliance on the Hardison/Ansonia “more than a de minimis cost” formulation must now be read against that intervening change in California law.

Key quotes

“Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee.” (Soldinger, supra, 51 Cal.App.4th at p. 370.)

“Since Northwest Airlines did not explore any available alternatives, it violated its statutory obligation to accommodate unless Northwest Airlines established that any reasonable accommodation would have caused it an undue hardship, violated the CBA or violated the seniority rights of other employees.” (Id. at p. 374.)

“The CBA, a private contract, cannot alter California’s public policy prohibiting discrimination based upon religion.” (Id. at p. 368.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The court resolved only the preemption and exhaustion gateways and the legal sufficiency of the employer’s accommodation showing; it expressly left the merits for trial, holding there were “triable issues of fact” on whether Northwest accommodated Soldinger and whether any accommodation would have caused undue hardship, violated the CBA, or impaired others’ seniority rights. (Soldinger, supra, 51 Cal.App.4th at pp. 373–374, 375–376.) Whether the conduct was “outrageous” for IIED purposes was likewise reserved for the jury. (Id. at p. 379.) The court declined to reach two defenses Northwest raised for the first time in a letter brief: that the IIED claim was barred by the workers’-compensation exclusive remedy, and that some discriminatory acts were time-barred under Government Code section 12960. (Id. at pp. 380, fn. 16, 382, fn. 19.) It also did not decide the aspect of the exhaustion doctrine concerning nonstatutory causes of action, having found exhaustion satisfied on other grounds. (Id. at p. 381, fn. 18.) And the opinion left open — indeed invited — the circumstances in which an employer relying on a CBA can win on summary judgment, if it develops facts showing a more-than-de-minimis burden. (Id. at p. 375, fn. 12.)