Soldinger v. Northwest Airlines, Inc.

• Citation: 51 Cal.App.4th 345,58 Cal.Rptr.2d 747
• Decision Date: 27 November 1996
• Docket Number: No. B084660,B084660
• Court: California Court of Appeals
• Parties: , 153 L.R.R.M. (BNA) 3050, 72 Fair Empl.Prac.Cas. (BNA) 1261, 96 Cal. Daily Op. Serv. 8686, 96 Daily Journal D.A.R. 14,291 Geraldine SOLDINGER, Plaintiff and Appellant, v. NORTHWEST AIRLINES, INC., Defendant and Respondent.

Page 747

58 Cal.Rptr.2d 747

51 Cal.App.4th 345, 153 L.R.R.M. (BNA) 3050,

72 Fair Empl.Prac.Cas. (BNA) 1261,

96 Cal. Daily Op. Serv. 8686,

96 Daily Journal D.A.R. 14,291

Geraldine SOLDINGER, Plaintiff and Appellant, v. NORTHWEST AIRLINES, INC., Defendant and Respondent.

No. B084660.

Court of Appeal, Second District, Division 3, California.

Nov. 27, 1996.

Review Denied March 12, 1997.

Rosenfeld, Meyer & Susman, Todd W. Bonder, Lisa M. Jacobsen, Stacy J. Barancik, Greines, Martin, Stein & Richland, Barbara W. Ravitz and Barry M. Wolf, Beverly Hills, for Plaintiff and Appellant.

Rintala, Smoot, Jaenicke & Brunswick, J. Larson Jaenicke, Alan M. Brunswick and Melodie K. Larsen, Los Angeles, for Defendant and Respondent.

ALDRICH, Associate Justice.

This case involves the scope of federal preemption under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. 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. Under the facts of this case, we hold the RLA does not preempt the employee's civil lawsuit since her grievance does not grow out of the interpretation or application of her collective bargaining agreement (a "minor dispute"). We therefor reverse the summary judgment granted by the trial court.

INTRODUCTION

This religious discrimination lawsuit was brought by appellant and plaintiff Geraldine Soldinger against her employer, respondent and defendant Northwest Airlines, Inc. Soldinger appeals from a summary judgment entered in favor of Northwest Airlines.

The issues we address are:

(1) Does the RLA preempt Soldinger's state law (Gov.Code, § 12900 et seq.) allegations of religious discrimination and retaliation?

(2) Does the RLA preempt Soldinger's allegations that Northwest Airlines failed to accommodate Soldinger's religious beliefs (Gov.Code, § 12940, subd. (j)) and does the collective bargaining agreement between Northwest Airlines and Soldinger's union, in itself, constitute an accommodation?

3) Does the RLA preempt Soldinger's claim for intentional infliction of emotional distress?

(4) Did Soldinger exhaust her administrative remedies with regard to her claim for retaliation?

FACTUAL AND PROCEDURAL BACKGROUND

Since this matter comes to us upon the granting of a summary judgment in favor of Northwest Airlines, we view the facts in the light most favorable to Soldinger. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590, 52 Cal.Rptr.2d 877.)

1. Soldinger.

Soldinger was a Conservative Jew. Her husband was a Holocaust survivor, having been in a concentration camp during World War II. Their children were educated in religious school and raised in a religious environment. Soldinger kept a kosher ¹ home and strictly observed the three major Jewish holidays, Yom Kippur, Rosh Hashanah and Passover. The Soldingers treated these holidays as days of observance. On these holidays, the Soldingers did not drive, answer the telephone or watch television.

Soldinger began her employment with Northwest Airlines in 1977, having her first job with Northwest Airlines's predecessor company. During her 14 years with Northwest Airlines, Soldinger had never worked on the three major Jewish holidays, which included the first two days of Passover. ² The celebration of Passover includes a family gathering and a religious ceremony, the Seder. A Seder is held on the first two nights; it can last several hours. Observant Jews take time off for Passover.

2. The bidding procedures and Northwest Airlines Practices.

Soldinger's employment was governed by a collective bargaining agreement (the CBA) between Northwest Airlines and her union, the International Association of Machinists and Aerospace Workers (the Union).

The CBA controlled the methods by which employees obtained days off. In December of each year, employees bid for their desired vacation for the next year. Vacation bids, as administered by the Union, were awarded by seniority. Employees also requested individual days off, or "day-at-a-time" (DAT) vacation. Employees submitted such requests no more than 14 days in advance of the date requested off. Ten days prior to the day off requested, employees were informed if the request was awarded or denied. If employees did not receive the time requested, they could trade with other employees. Northwest Airlines did not have a written policy regarding time off for religious holidays.

Northwest Airlines routinely replaced employees who were absent from work. On a daily basis, employees and supervisors covered other employees' shifts. They did this for important reasons and even on short notice. Full-time and part-time employees were used for this purpose. Sometimes, a shift was not completely covered and "people manage[d]."

3. Soldinger's efforts to be off for Passover and the termination of her employment.

In December 1990, Soldinger presented her vacation bid for the following year. Her vacation bid requested the week from March 29, 1991 through the following Sunday; this time would include the beginning of Passover (Friday, March 29). Soldinger was unsuccessful in this request because the week had been selected by others with higher seniority.

Soldinger's regular days off were Thursday, Friday and Saturday (March 28-30.) She was able to trade with other employees for time off on Monday, Tuesday and Wednesday (April 1-3). In order to have the complete week off, she needed not to work on Sunday, March 31, 1991, which also happened to be Easter Sunday.

On March 18, 1991, Soldinger submitted a DAT request asking to have March 31, 1991, off. On March 24, 1991, she learned her request had been denied. That day, Soldinger posted a sign on the employee bulletin board stating: " '[D]esperate. Need need Also on March 24, 1991, Soldinger asked to speak to Steven Holme, the manager of station operations. Since he was not in his office, Soldinger left a note for Holme. In the note Soldinger asked to take March 31, 1991 off, if necessary without pay, because it was a Jewish holiday.

                Sunday, March 31 off.  Will pay back Thursday, Friday, Saturday.' "   Seeking to trade days off, Soldinger unsuccessfully asked more than 15 employees to accommodate her
                

On March 27, 1991, Holme discussed the note with Soldinger. Soldinger said March 31st was a religious holiday and thus she could not come to work. Holme said, "You're not here, you're fired." When Soldinger tried to explain, Holme said, "Well, what makes you think it's more important for you to have your holiday off than someone celebrating Easter?" After Soldinger told Holme she could not come to work, the conversation ended. Holme made no attempt to assist Soldinger in securing the day off.

On March 31, 1991, Soldinger did not report to her job in Operations at Los Angeles Airport. That day, approximately 50-60 people worked in operations. Eight other employees were qualified to work in that department, but were assigned elsewhere. Northwest Airlines replaced Soldinger that day with two other employees, covering Soldinger's responsibilities with ease. On April 8, 1991, Soldinger was fired. Northwest Airlines claimed Soldinger was fired for being insubordinate and for being "AWOL."

4. Northwest Airlines's treatment of other employees.

Chris Canale, who was not Jewish, also worked in Operations. He had the habit of saying "Hey, Jew. Hey, go Jew him down. Hey you yid." ³ Soldinger had reported these comments to management about four months before she was fired from her job. Canale had not been successful in obtaining March 31, 1991 off. Canale asked his supervisor for the day off because he wanted to go to the mountains. To accommodate Canale's request, the supervisor was able to switch Canale's shift with a third employee.

Northwest Airlines supervisor Renee Kaufman knew of no other employee who had been fired for being AWOL. These employees' trade rights might have been suspended, but the employees were not fired. No other employee who had been insubordinate had been fired. The other insubordinate employees had been disciplined or reprimand letters had been placed in their files. In 1991, nine other customer service agents were fired; none was fired for being insubordinate or AWOL.

5. Grievance, the Department of Fair Employment and Housing proceedings and Soldinger's return to work.

On April 9, 1991, Soldinger and the Union filed a grievance protesting termination of Soldinger's employment. Northwest Airlines denied the grievance and it was ultimately referred to arbitration, which was held on November 5, 1991. As a result of the arbitration, Soldinger was reinstated with no loss of seniority, but without back pay.

Soldinger returned to work on March 16, 1992. Dick Schukraft, Northwest Airlines's passenger service manager, told the Union representative Soldinger should not have gotten her job back and he did not want her there. Schukraft made a number of anti-Semitic remarks to another Jewish employee. Schukraft suggested Jews did not have to work because they had money and the other employee should take care of "her people," meaning passengers from New York.

Soldinger tried to return to Operations. However, Schukraft refused to allow her to take the required training, claiming no one was receiving the training. Subsequently, however, people were trained for four positions within Operations. Schukraft also denied Soldinger bumping rights. When Soldinger tried to bid on a supervisory position, Schukraft gave it to someone with lower seniority.

Soldinger filed two charges with the California Department of Fair Employment and Housing (DFEH). One was filed on April 12, 1991; the second was filed on June 30, 1993. DFEH rejected both charges and issued two right-to-sue letters.

6. Proceedings in the trial court....