Hostile Work Environment Claims Based on Off Work Communications

Rite aid pharmacy

Hostile Work Environment Claim Can’t Be Based On Off Worksite, Off Work Hours Communications Between the Employee And A Supervisor With Whom The Employee Was Friends

Atalla v. Rite Aid Corp., 89 Cal.App.5th 294 (2023)

Hanin Atalla and Erik Lund were friends. At some point after their friendship began, they both went to work for Rite Aid. Lund was a District Manager for Rite Aid, and Atalla was a pharmacist and was directly supervised by her store’s pharmacists. Her store’s pharmacist reported to Lund.

At Rite Aid, their friendship continued and, as part of that friendship, they continued to text (via their personal cell phones) frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media, drinking and alcohol, birthdays, fashion, and work issue. They exchanged hundreds of texts. They would go out for coffee and meet up for lunch. Lund and his wife joined Atalla and her husband (and another couple) for dinner to celebrate Atalla’s birthday.

In their final text exchange, which occurred on a Friday night after 11:00 p.m. and after Lund had gotten drunk, Lund texted Atalla to ask how her day went. Atalla responded with texts stating, “I think it was ok, tough because I was fighting my cold but I’m picking it up.” Lund replied, “You are my girl so conquer”; Atalla texted back, “I’m trying my best.” Atalla added: “The senior pharmacist says once I’m comfortable with everything she would love for me to cover for her … that she trusts me.” Lund responded, “That is high praise.” Atalla replied, “But I never know if people are being nice or if they’re serious.”

Lund then sent Atalla a photo of five bottles of wine. Atalla replied, “I’m doing the same with vodka, clearing my cold the Russian way.” Lund texted, “Great choice,” and sent a photo of a bottle of wi e. Later that evening, Lund texted Atalla a “Live Photo” of him masturbating. Atalla—who was in her living room, sitting next to her husband on the couch, when she received the text—could tell at first glance it was an image of his penis. Atalla put her phone face down on her coffee table for 10 minutes, then went into the bathroom and viewed the Live Photo in private so her husband would not see it. While she was in the bathroom, Atalla received another text message from Lund that said, “I am so drunk right now.” Atalla deleted that text and the Live Photo.

Lund then sent another text stating, “Meant to send to wifey,” followed by a text that said, “Going to go die.” Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Atalla called her friend and went into her bedroom. While on the phone with her friend, Atalla received texts from Lund stating, “Both of us” and “Race to the bottom,” accompanied by a photo of his penis. Atalla texted Lund, “Erik, stop please,” to which he replied, “You are right.” That was the end of the exchange.

The next morning, Lund texted Atalla, “Wanted to apologize I was embarrassing drunk last night.” Atalla did not respond.

On Sunday, January 6, 2019, Atalla called her training pharmacist and said she was not feeling well and would not be able to work that week. On Monday, January 7, 2019, Lund texted Atalla asking whether she was still sick, but Atalla did not respond and blocked his number.

On January 10, 2019, Atalla’s counsel sent a letter to Rite Aid asserting a claim of sexual harassment. Waterman’s letter was forwarded to the in-house counsel for Rite Aid, Emily Edmunds.

Edmunds spoke with Atalla’s counsel on January 11, 2019. Atalla’s counsel told Edmunds that Lund sent Atalla a video of himself masturbating and a still picture of his penis. Atalla’s counsel also advised that Atalla “will not be returning to work at Rite Aid.” Atalla’s counsel said he had already obtained a right-to-sue letter and would be filing a complaint that coming Monday, January 15, 2019. He observed the question was about damages and proposed early mediation.

Edmunds immediately directed Divisional Human Resources Leader Rodney Lachin to investigate Atalla s complaint. Lachin met with Lund on the same day, January 11, 2019. Lund admitted sending Atalla the photo and video of his penis. Lachin handed Lund a copy of Rite Aid’s anti-retaliation policy and placed him on suspension. Rite Aid investigated whether there were any other complaints of sexual harassment against Lund; the investigation revealed none.

Rite Aid made the decision to terminate Lund on Monday, January 14, 2019. That same day, Edmunds emailed a letter to Atalla’s counsel advising of Lund’s termination and assuring them, “Ms. Atalla remains an active employee in our system, and she is welcome to return to work.” Edmunds’s letter invited Atalla to call the pharmacy scheduler so she could get back on the schedule (Edmunds provided the number).

Neither Atalla’s counsel nor Atalla responded to Edmunds’s letter, nor did they indicate in any way that Atalla intended to return to work at Rite Aid at some point. Atalla did not contact the scheduler as Edmunds had suggested, nor did she communicate to anyone at Rite Aid that she was uncomfortable doing so or that she needed a leave of absence.

On January 16, 2019, Edmunds spoke to Atalla’s other counsel. During the call, Atalla’s other counsel reiterated that Atalla would not be returning to work at Rite Aid.

Edmunds waited the rest of the week but heard nothing further. Based on the statements of Atalla’s counsel and the lack of any communication to the contrary, Edmunds concluded that Atalla had no intention of returning to work at Rite Aid and, rather, had decided to resign and pursue litigation. Accordingly, on January 21, 2019, Atalla’s status in Rite Aid’s system was changed to “resignation with the possibility of re-hire.” On January 22, 2019, Rite Aid sent Atalla a separation notice, along with her vacation payout.

After Atalla received the separation notice, she did not communicate with anyone at Ride Aid for any needed clarification. She never contacted Rite Aid to indicate she wanted to return to work.

Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.

Atalla then filed sexual harassment, failure to prevent sexual harassment, wrongful constructive termination, discrimination, and retaliation action against her Rite Aid. Rite Aid filed a summary judgment motion. The trial court granted summary judgment in favor of the Rite Aid defendants as to all of Atalla’s claims. Atalla appealed. On appeal, the Court affirmed:

Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.

The trial court concluded Atalla had not raised a triable issue of fact as to the required showing that Lund was acting in the capacity of a supervisor when he sent the inappropriate texts.

We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”

We affirm the trial court’s conclusion that Atalla has not raised a triable issue of material fact with respect to the required showing that Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, Lund and Atalla had an extensive texting relationship, and their late-night text exchange, which occurred outside the workplace and outside of work hours, was spawned from a personal exchange that arose from a friendship between them. Summary judgment is, therefore, proper as to Atalla’s sexual harassment claims.

The Court of Appeal also affirmed the trial court’s grant of summary judgment on Atalla’s constructive discharge claim:

We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”

Here, upon being notified of Lund’s conduct, Rite Aid took immediate steps to remedy the situation. Rite Aid immediately investigated the sexual harassment claim reported by Atalla’s attorneys, terminated Lund expeditiously, advised Atalla’s attorneys that Lund had been fired, invited Atalla back to work, and urged her to contact the scheduler to get back on schedule. Atalla’s attorneys, however, repeatedly advised Edmunds that Atalla would not be returning to work at Rite Aid. Nor was any evidence adduced that Rite Aid intentionally created or knowingly permitted intolerable working conditions that left Atalla with no choice but to resign.


AB 5 May Violate Equal Protection Rights Of Independent Contractor Drivers

Constitutional rights lawyers of Helmer Friedman LLP.

AB 5 May Violate Equal Protection Rights Of Independent Contractor Drivers And The Gig Companies That Retain Them

Olson v. State of Cal., 62 F.4th 1206 (9th Cir. 2023)

Lydia Olson, Miguel Perez, Uber, Inc., and Postmates, Inc. sued to enjoin the State of California from enforcing California Assembly Bill 5, as amended by California Assembly Bills 170 and 2257, against them. A.B. 5, as amended, codified the “ABC test” adopted by the Supreme Court of California in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (2018). A.B. 5, as amended, however, incorporated numerous exemptions into its provisions.

Plaintiffs requested an injunction on the grounds that—as applied to Plaintiffs—A.B. 5, as amended, violates: the Equal Protection Clauses, the Due Process Clauses, the Contract Clauses, and the Bill of Attainder Clauses of the United States and California Constitutions.

The district court denied the plaintiffs’ motion for a preliminary injunction and dismissed their lawsuit.

The Ninth Circuit reversed the district court’s dismissal of the plaintiffs’ equal protection claims but affirmed the dismissal of the due process, contract clause, and bill of attainder claims. The Ninth Circuit then remanded the district court’s order denying Plaintiffs’ motion for a preliminary injunction for reconsideration.

Absent Employer Policy Employees May Have Privacy Interest in Emails Over Employer’s Email System

Employees may have a right to privacy at work.

Absent Employer Policy Of Either Monitoring Individual Email Accounts Or Prohibiting Use Of The Company’s Email Account For Personal Communications, Employees May Have Privacy Interest In Emails Over Employer’s Email System

Militello v. VFARM 1509, 89 Cal. App. 5th 602 (2023)

Shauneen Militello, Ann Lawrence Athey (Lawrence), and Rajesh Manek were the co-owners of Cannaco Research Corporation (CRC), a licensed manufacturer and distributor of cannabis products. All three individuals served as officers of CRC until Lawrence and Manek voted to remove Militello from her position. Militello sued Lawrence, Manek, and others, including Joel Athey, Lawrence’s husband, in a multicount complaint alleging causes of action for breach of contract, breach of fiduciary duty, fraud, and other torts.

Lawrence moved to disqualify Militello’s counsel, Spencer Hosie and Hosie Rice LLP, on the ground Militello had impermissibly downloaded from Lawrence’s CRC email account private communications between Lawrence and Athey, protected by the spousal communication privilege (Evid. Code, § 980), and provided them to her attorneys, who then used them in an attempt to obtain a receivership for CRC in a parallel proceeding. Militello opposed the motion, arguing in part Lawrence had no reasonable expectation her electronic communications with her husband were confidential because she knew Militello, as a director of CRC, had the right to review all communications on CRC’s corporate network. Militello also argued disqualification is not appropriate when a lawyer has received the adverse party’s privileged communications from his or her own client. The trial court granted the motion, finding that Militello had not carried her burden of establishing Lawrence had no reasonable expectation her communications with her husband would be private, and ordered the disqualification of Hosie and Hosie Rice.

The Court of Appeal affirmed the finding that Lawrence reasonably expected her communications were, and would remain, confidential. And while the Court of Appeal acknowledged that disqualification may not be an appropriate remedy when a client simply discusses with his or her lawyer improperly acquired privileged information, counsel’s knowing use of the opposing side’s privileged documents, however, obtained, is a ground for disqualification.

R3 Government Solutions to Pay $82,500 to Settle Discrimination and Retaliation Lawsuit

Age discrimination is a violation of Title VII of the Civil Rights Act of 1964.

R3 Government Solutions, LLC, a federal contractor, has agreed to pay $82,500 and provide other relief to settle a race discrimination and retaliation case filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit claimed that R3 had discriminated against and retaliated against a Black woman who worked for the company as a recruiter. The EEOC alleged that the recruiter opposed R3’s discriminatory hiring practices, which included rejecting candidates based on age and disadvantaging them due to their race or national origin. The company fired her after she spoke out against these hiring practices.

This alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits retaliation and race discrimination, as well as the Age Discrimination in Employment Act of 1967, which prohibits retaliation against employees who oppose age discrimination. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit in the U.S. District Court for the Eastern District of Virginia after trying to reach a pre-litigation settlement through its administrative conciliation process.

It is important to hold employers accountable when they retaliate against employees who oppose discriminatory hiring practices. The U.S. Equal Employment Opportunity Commission (EEOC) is committed to preventing and remedying discrimination and retaliation in the workplace. Retaliation against employees who speak up against discriminatory conduct cannot be tolerated. The EEOC is dedicated to seeking relief for workers who take a stand against their employer’s discriminatory behavior.

Ministerial Exception Application When Plaintiff Position Does Not Include Religious Instruction or Activities

Suffer age discrimination, workplace violations - Helmer Friedman LLP.

Triable Issues As To Whether Ministerial Exception Applied To Plaintiff’s Position Because She Did Not Teach Religion To The Students Nor Did She Lead The Students In Any Religious Activities Or Services

Atkins v. St. Cecilia Catholic Sch., 90 Cal.App.5th 1328 (2023)

Francis Atkins, a former employee of St. Cecilia Catholic School, a religious elementary school, sued for age discrimination in violation of FEHA. The Superior Court granted St. Cecilia’s motion for summary judgment on the grounds that Atkins’ suit was barred by the ministerial exception. Atkins appealed.

Initially, Atkins argued that St. Cecilia waived the ministerial exception as an affirmative defense by failing to assert it in its answer. The Court of Appeal rejected that argument:


The Supreme Court has determined that the ministerial exception operates as an affirmative defense to an otherwise cognizable claim. Ordinarily, an affirmative defense must be alleged in the answer, or it is waived. This does not mean, however, that the failure to plead an affirmative defense in the answer necessarily precludes the defendant from raising it in a motion for summary judgment. Instead, courts generally have allowed an affirmative defense to be asserted for the first time in a motion for summary judgment absent a showing of prejudice. As explained by one appellate court: Given the long-standing California court policy of exercising liberality in permitting amendments to pleadings at any stage of the proceedings, we believe that a party should be permitted to introduce a defense in a summary judgment procedure so long as the opposing party has adequate notice and opportunity to respond.
In this case, Atkins has not shown prejudice from St. Cecilia’s failure to allege the ministerial exception as an affirmative defense in its answer. As St. Cecilia explained in its motion to set aside the scheduling order, at the time the parties stipulated to continue the trial date (but not the deadline for filing a motion for summary judgment), the Supreme Court had not yet issued its decision in Our Lady of Guadalupe. Accordingly, at that time, St. Cecilia did not believe it had grounds to seek summary judgment based on the ministerial exception. Once the Supreme Court issued the decision in that case, St. Cecilia gave Atkins notice of its intent to assert the defense when it filed the motion to set aside, seeking permission to move for summary judgment based on the exception. Atkins had an opportunity to oppose St. Cecilia’s request on both substantive and procedural grounds. After the trial court granted St. Cecilia permission to raise the ministerial exception in a summary judgment motion, Atkins had a full opportunity to oppose that motion on the merits.
Atkins asserts that she suffered prejudice because discovery had closed by the time St. Cecilia filed its summary judgment motion, and thus, she did not have an opportunity to conduct discovery that was tailored to address the ministerial exception. As St. Cecilia points out, however, Atkins could have asked the trial court to continue the summary judgment hearing to allow her to conduct additional discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). While Atkins argued in her opposition that she was prejudiced by St. Cecilia’s failure to raise the ministerial exception in its answer, she never requested a continuance so that she could seek any necessary discovery. On this record, St. Cecilia did not waive the ministerial exception as an affirmative defense.


Atkins v. St. Cecilia Catholic School, 90 Cal.App.5th 1328 (2023)(cleaned up).

Next, Atkins argued that the trial court erred in granting summary judgment to St. Cecilia because her former job position with the school does not fall within the scope of the ministerial exception. Atkins specifically asserts that her job duties as both an office administrator and an art teacher were secular in nature and did not involve the teaching of religion to the students. St. Cecilia contended that Atkins is subject to the exception because the school entrusted her with educating and forming students in the Catholic faith, and Atkins fully embraced that role in her teaching position. Viewing the evidence in the light most favorable to Atkins, the Court of Appeal concluded the trial court erred in granting the summary judgment motion because there were triable issues of material fact as to whether the ministerial exception applies to Atkins’s former job position as an art teacher and an office administrator.

SCOTUS Holds NLRA Does Not Preempt An Employer’s Tort Claims Alleging Union Intentionally Destroyed Property

Unions - collective bargaining.

Supreme Court Holds That NLRA Does Not Preempt An Employer’s Tort Claims Alleging That The Union Intentionally Destroyed The Company’s Property During A Labor Dispute

Glacier Northwest, Inc., v. International Brotherhood of Teamsters Local Union No. 174, 2023 WL 3742578 (2023)

Glacier Northwest, a concrete company, depends on its truck drivers to deliver concrete to customers in a timely manner. But when relations between Glacier and its drivers soured, the drivers went on strike. Their labor union allegedly designed the strike with the intent to sabotage Glacier’s property. Although Glacier managed to avoid damage to its delivery trucks by deploying emergency maneuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for destroying its property. But the company did not get very far: The state court dismissed Glacier’s tort claims on the ground that they were preempted by the National Labor Relations Act. In an 8 – 1 opinion authored by Justice Barret, the Supreme Court reversed its holding in favor of the Glacier Northwest because the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work and, in the opinion of the majority, the Union failed to “take reasonable precautions to protect” against this foreseeable and imminent danger.

Justice Thomas, with whom Justice Gorsuch joined, concurred in the decision but suggested that it was time to overrule San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959).

Justice Jackson issued a withering dissent:

The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Relations Act (NLRA) and simultaneously established the National Labor Relations Board to adjudicate disputes that arise between workers and management. That decision reflected Congress’s judgment that an agency with specialized expertise should develop and enforce national labor law in a uniform manner through case-by-case adjudication. For its part, this Court has scrupulously guarded the Board’s authority for more than half a century. See San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). Under Garmon, and as relevant here, a court presented with a tort suit based on strike conduct generally must pause proceedings and permit the Board to determine in the first instance whether the union’s conduct is lawful if the conduct at issue is even “arguably” protected by the NLRA.

Today, the Court falters. As the majority acknowledges, the Board’s General Counsel has filed a complaint with the Board after a thorough factual investigation, and that complaint alleges that the NLRA protects the strike conduct at the center of this state-court tort suit. The logical implication of a General Counsel complaint under Garmon is that the union’s conduct is at least arguably protected by the NLRA. Consequently, where (as here) there is a General Counsel complaint pending before the Board, courts—including this Court—should suspend their examination. Garmon makes clear that we have no business delving into this particular labor dispute at this time.

But instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged in the employer’s state-court complaint. As part of this mistaken expedition, the majority tries its own hand at applying the Board’s decisions to a relatively novel scenario that poses difficult line-drawing questions—fact-sensitive issues that Congress plainly intended for the Board to address after an investigation. And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike.

In my view, today’s misguided foray underscores the wisdom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature. Because the majority’s ruling suggests otherwise, I respectfully dissent.

Arbitration Denied Employer Failed To Authenticate Employee’s Signature On Agreement

Sexual harassment and discrimination lawyers. Non-compete agreements something akin to indentured servitude.

Arbitration Denied Where Employer Failed To Authenticate Employee’s Signature On Arbitration Agreement

In Gamboa v. Northeast Community Clinic, 72 Cal.App.5th 158 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed the employer’s arbitration agreement. The employer provided the trial court with an arbitration agreement that appeared to be signed by a representative of the employer and an employee, along with a declaration from a human resources official indicating that the plaintiff had signed the arbitration agreement (but lacking any foundational facts such as that the official witnessed the plaintiff signing the agreement). The plaintiff, however, filed a declaration in support of her opposition, stating that: (1) she reviewed the arbitration agreement attached to the official’s declaration but does “not remember these documents at all”; (2) before this case, no one had ever told her about an arbitration agreement or explained what it was; and (3) if she had known about the arbitration agreement and had been told about its provisions, she would not have signed it. In affirming, the Court of Appeal stated: “By not providing any specific details about the circumstances surrounding the contract’s execution, the defendant’s declarant offered little more than a bare statement that the plaintiff entered into the contract without offering any facts to support that assertion. This left a critical gap in the evidence supporting the defendant’s petition.” (cleaned up).

Arbitration Denied Where Employer Failed To Authenticate Employee’s Electronic Signature

Equal Pay and Anti-Retaliation Protection Act protects from retaliation.

Arbitration Denied Where Employer Failed To Authenticate Employee’s Electronic Signature On Arbitration Agreement

In Bannister v. Marinidence Opco, LLC, 64 Cal.App.5th 541 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed an arbitration agreement. The Court of Appeal cited both conflicting evidence as to whether the agreement was electronically executed by the employee and the fact that there were no employee-specific usernames or passwords required for the execution of the agreement.