Monday, December 5, 2016
C.A. Finds Attorney’s FEHA Action Meritless
By a MetNews Staff Writer
The Court of Appeal for this district has found that an action under the Fair Employment and Housing Act, based on an alleged constructive discharge, was so contrived as to justify an award of costs to the employer.
Costs were imposed on Michelle Afont, an attorney was on inactive status and who decided she wanted a career change and became a flight attendant-trainee for Alaska Airlines. She quit the job because she was being required to work on Dec. 23-25 of 2012 and allegedly feared she would be on the same flight with a male attendant-trainee who was angry at her.
She had been assured that the other attendants on the flights would all be women.
In an action under the FEHA, Justice Brian M. Hoffstadt said in his opinion for Div. Two, costs may be awarded against a plaintiff only if the standard set forth in Government Code §12965(b) is met: that the action be “objectively without foundation.”
Hoffstadt noted that the trial judge—then-Los Angeles Superior Court Judge Michelle R. Rosenblatt, now a private judge—awarded costs, as a matter of course, to the prevailing party, under Code of Civil Procedure §1032(b). He said it was not judicially established until after she ruled that §1032(b) is inapplicable in FEHA cases.
The fact that Rosenblatt did not make the requisite finding that the action was “objectively without foundation” does not preclude upholding her order because the error is harmless, under the circumstances, Hoffstadt wrote. He explained that “a finding to the contrary cannot reasonably be made from the record.”
Afont sued the airline for “no less than” $1 million in compensatory damages, for punitive damages, and for declaratory and injunctive relief.” A white female, then 53, she claimed race-based, sex-based, and age-based discrimination, as well as a failure to protect her from retaliation and harassment.
The action stemmed from a deal she reached with another attendant, Kenneth Smith, a 42-year-old black man, under which he would switch schedules with her, working on Dec. 28, and she would pay him $75. He initially expressed reluctance to risk the prospect of having to work on New Year’s Day, but agreed after Afont told him she was “99.99 percent sure” that the airline’s scheduling rules would spare him from working Jan. 1 if he flew on Dec. 28.
As it turned out, he was required to be on a New Year’s Day flight, and asked Afont to agree to rescind their deal. She declined.
He said in a message to her:
“And you should check your honesty....Check this out, you are and you still got it twisted. Now, people are already not feeling you (great start) and I’m REALLY not feeling you. Get that $75 to me to avoid problems....”
Afont reported the “threat” to the company, was told it would be investigated, but that she would need to work, as assigned, on Dec. 23 through Dec. 25. She quit, then seeking reinstatement after the holiday season.
After being denied reemployment, she sued.
Bringing the action on her behalf was Los Angeles attorney Lisa A. Maki. Afont later substituted herself in as counsel and was, in the end, represented by Christopher Saldaña of the San Diego law firm of Shewry & Saldaña.
Rosenblatt awarded summary judgment to Alaska Airlines, as well as to Smith, who was also sued. (Afont did not appeal the judgment in favor of Smith.)
The trial judge found that “the evidence does not demonstrate that the disagreement and text messages between plaintiff and Smith were related to plaintiff’s race, age or gender,” thus defeating the claim under the FEHA.
Hoffstadt agreed, saying that “plaintiff offered no evidence of Smith’s discriminatory motive, which defeats her FEHA-based harassment claim against the Airline as a matter of law.”
Afont also sued for wrongful termination, saying there was a constructive discharge. Hoffstadt declared:
“The trial court correctly concluded that plaintiff’s decision to resign was unreasonable as a matter of law because ‘Smith’s conduct did not rise to the level of creating an intolerable working condition.’ The Airline had no time to create ‘intolerable or aggravated’ working conditions because plaintiff resigned on a Saturday night, less than 36 hours after first informing any Airline personnel about Smith’s December 21 text message and mere hours after the Airline’s human resources official informed her that the Airline would be conducting an investigation.
“On appeal, plaintiff contends that the Airline made her working conditions intolerable because the Airline did not give her the next three days off (over the holiday season) and, instead, forced her to choose between resigning or facing the possibility of flying in the same plane as Smith, the man she believed had threatened her. Even if we ignore the precedent indicating that a single incident is rarely, if ever, enough to create intolerable working conditions…, plaintiff was never put to the choice she portrays on appeal. Although the human resources official told plaintiff she had to work her upcoming shift or resign, there is no evidence to support her assertion that she might be scheduled to fly with Smith. Plaintiff had never once flown with Smith in the months they were both trainees, and the Airline’s human resources official assured plaintiff that she was not scheduled to fly with any male flight attendants during her upcoming shifts. Plaintiff’s insistence that there was still a possibility that Smith might be substituted onto one of her flights at the last minute was based on nothing but her own conjecture, and the trial court properly gave it no weight.”
The case is Afont v. Alaska Airlines, B260719.
Saldaña, who represented Afont in the trial court, was also her attorney on the appeal. In both the trial court and appellate court, Davis Wright Tremaine acted for Alaska Airlines, with Camilo Echavarria, Rochelle L. Wilcox and Aaron N. Colby handling the appeal.
Afont has authored a book titled “The Dang Factor.” Under her name on the cover, she is described as “The Relationship Guru.”
One of the definitions for “dang” she offers on her Facebook page is:
“Someone you look at and think to yourself: DANG! You dig him! You think he is hot. You admire him. You respect him. You love to touch him. And you want to have sex with him!”
Afont, a graduate of Thomas Jefferson School of Law in San Diego, was admitted to the State Bar in 1993. She was on inactive status from 1995-2000, and has been on that status since 2013.
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