[00:00:00] Speaker 05:
We'll remain off record for just a minute.

[00:00:16] Speaker 05:
We can't do anything without our clerk.

[00:00:17] Speaker 05:
Of course.

[00:00:19] Speaker 05:
No problem.

[00:00:28] Speaker 05:
See how much power you have.

[00:00:29] Speaker 05:
We're all waiting.

[00:00:33] Speaker 05:
All good.

[00:00:34] Speaker 04:
Your honors, I believe the time was 20 minutes, not 15 minutes as originally counted.

[00:00:41] Speaker 05:
Okay.

[00:00:42] Speaker 05:
Whenever you're ready, we're all set now.

[00:00:44] Speaker 04:
Wonderful.

[00:00:45] Speaker 04:
Good morning, and may it please the court.

[00:00:47] Speaker 04:
Stephanie Taub on behalf of plaintiffs Marlee Brown and Lacey Smith, I'd like to reserve five minutes for rebuttal.

[00:00:54] Speaker 05:
Council, forgive me, but I, given our atypical start, I haven't announced the case, and that's my fault.

[00:01:00] Speaker 05:
The case on argument is Brown versus Association of Flight Attendants 24-3789.

[00:01:06] Speaker 05:
We have one council appearing by video.

[00:01:08] Speaker 05:
I just need to make sure as a sound test that you can see and hear us, sir.

[00:01:13] Speaker 00:
I can, Your Honor.

[00:01:14] Speaker 05:
Okay, great.

[00:01:15] Speaker 05:
Sorry about that, Bobble.

[00:01:17] Speaker 05:
Go right ahead.

[00:01:18] Speaker 04:
Of course, thank you.

[00:01:20] Speaker 04:
This court in Damiano versus Grants Pass School District held that it was religious discrimination for an employer to fire employees for expressing their biblically-based beliefs about gender and sexuality to their coworkers.

[00:01:36] Speaker 04:
And that is precisely what Alaska Airlines did here.

[00:01:39] Speaker 05:
Why is that true of Smith?

[00:01:41] Speaker 04:
Well, Smith, if you read her notice of discharge, it's very clear that the employer said defining sexual orientation or gender identity as moral issues was a discriminatory statement.

[00:01:55] Speaker 04:
So this is clear that the employer is firing her because she held traditional moral beliefs about gender and sexual morality.

[00:02:03] Speaker 04:
How do you get from there to a religious belief?

[00:02:06] Speaker 04:
Well, the way the EEOC defines religion

[00:02:09] Speaker 04:
includes moral beliefs as to what is right and wrong that are held with the strength of religious beliefs.

[00:02:15] Speaker 04:
So under that definition, it's clear that the employer is firing her because of her moral beliefs, and those are covered and protected against religious discrimination under that EEOC's definition.

[00:02:27] Speaker 04:
And also, also under Amber Crombie versus or the EEOC versus Amber Crombie standard,

[00:02:35] Speaker 04:
The court held that an actual knowledge requirement of a plaintiff's religion is not required.

[00:02:44] Speaker 04:
That instead, even an unsubstantiated suspicion that the employee might be religious is enough.

[00:02:51] Speaker 04:
And if the employer at least suspects that this is a religious belief, then that is sufficient.

[00:02:57] Speaker 04:
And here, Alaska Airlines put out

[00:03:00] Speaker 04:
official statements on its, for instance, its social issues engagement platform.

[00:03:05] Speaker 04:
That was its official public statements saying that the airline knew that many people hold religious beliefs related to the Equality Act.

[00:03:19] Speaker 04:
And so this, the airline clearly knew that many people hold religious beliefs about gender and sexual morality.

[00:03:27] Speaker 04:
That's also common knowledge.

[00:03:29] Speaker 05:
This had to be specific as to Smith.

[00:03:31] Speaker 05:
And it puts Alaska Airlines, I find this case troubling vis-a-vis Smith in particular, because they also have an obligation to not allow a hostile worker environment to continue.

[00:03:41] Speaker 05:
They have 26,000 other employees, right?

[00:03:45] Speaker 05:
Oh, sorry.

[00:03:46] Speaker 05:
No, no, no.

[00:03:47] Speaker 05:
I'm just trying to push back and tease this out a bit, because the fact that Alaska Airlines was aware

[00:03:52] Speaker 05:
as you say, writ large, that many people have these beliefs doesn't help me very much in this argument.

[00:03:59] Speaker 04:
Well, of course, employers have a right, an obligation, to prevent hostile work environments and to protect all of their employees.

[00:04:07] Speaker 04:
The problem comes when they're weaponizing or misusing their policies to target a particular protected class.

[00:04:16] Speaker 04:
And that is what's going on here, and a reasonable jury could so find.

[00:04:21] Speaker 05:
Her statement is much less troublesome to me.

[00:04:25] Speaker 05:
It's not overtly religious, at least in its one sentence, right?

[00:04:28] Speaker 05:
And she was on probation, as you know, because of her prior conduct.

[00:04:33] Speaker 05:
And I, this one's harder.

[00:04:36] Speaker 05:
What's your strongest argument that, at step one, that this was, that she was terminated because of her religious beliefs?

[00:04:43] Speaker 04:
First myth?

[00:04:45] Speaker 04:
Yeah.

[00:04:45] Speaker 04:
Well, our strongest argument, well, we have the two main arguments, which is under the EEOC's definition.

[00:04:50] Speaker 04:
and then under Amber Crombie.

[00:04:52] Speaker 04:
So the airlines put out those social issues engagement platform acknowledging that it recognized that people hold these religious beliefs.

[00:05:02] Speaker 04:
Joseph Sprague of

[00:05:04] Speaker 04:
her present horizon interpreted Brown and Smith's comments to be raising religious concerns.

[00:05:09] Speaker 04:
The airline knew that they were repeatedly raising religious, that people were repeatedly raising religious concerns about the airline's support of the Equality Act.

[00:05:18] Speaker 04:
So under this, under this, it's very similar to the

[00:05:22] Speaker 04:
the Amber Crombie case, where an employee came in as an applicant that was wearing a head covering.

[00:05:30] Speaker 04:
And many people know that many Muslim women wear head coverings for religious reasons.

[00:05:36] Speaker 04:
So even though they didn't have actual knowledge that that employee was religious, they're suspecting that she was sufficient.

[00:05:45] Speaker 05:
But in this case, if we're just talking about Smith, it's harder than that, right?

[00:05:51] Speaker 05:
Because they investigate

[00:05:52] Speaker 05:
She didn't say that this was a religious statement.

[00:05:55] Speaker 05:
Quite the contrary.

[00:05:56] Speaker 05:
Until it got to grievance time, post-termination, her response was that her single sentence statement was intended to be a philosophical question.

[00:06:07] Speaker 04:
But she did say that it was a philosophical question.

[00:06:10] Speaker 04:
In Damiano versus Grants Pass School District, the court there held that their biblically-based beliefs on gender were also philosophically-based, and that didn't preclude bringing a religious claim.

[00:06:25] Speaker 05:
And also... Did they claim religion there?

[00:06:27] Speaker 05:
I mean, for me, it's quite noticeable that she didn't, in the investigation stage, didn't claim that this was an expression of her religious views.

[00:06:34] Speaker 04:
She was, she didn't know that they were going to fire her because of her moral beliefs at that time.

[00:06:41] Speaker 04:
So it wasn't until she received her notice of discharge that she realized that they were firing her because of the way that she defined gender identity and sexual orientation.

[00:06:53] Speaker 04:
So she read her notice of discharge, she realized that she was being fired because of her moral beliefs.

[00:06:58] Speaker 04:
and which she held for religious reasons, and that's when she explained her situation at the next opportunity, which was her grievance hearing.

[00:07:07] Speaker 02:
Would there have been any problem if Alaska had just taken the post down?

[00:07:10] Speaker 04:
No, we don't believe that would have risen to the level of an adverse action, if they would have just taken the post down, and that would have been an acceptable solution.

[00:07:17] Speaker 05:
They had less severe sanctions they could have imposed, for sure.

[00:07:23] Speaker 05:
Your strongest argument is that the one they took was impermissible, despite their zero tolerance policy, because no reasonable juror could decide this was anything other than on the basis of her religion?

[00:07:35] Speaker 04:
No, that's not exactly the standard.

[00:07:37] Speaker 04:
So it's that reasonable jurors could find.

[00:07:40] Speaker 05:
Oh, forgive me, that reasonable jurors could find.

[00:07:42] Speaker 05:
A reasonable juror could find.

[00:07:43] Speaker 05:
I did misspeak.

[00:07:44] Speaker 05:
That's your position, though.

[00:07:46] Speaker 04:
Yes, at a minimum.

[00:07:47] Speaker 04:
We believe that the evidence shows that a reasonable juror could find that they fired them because of their

[00:07:51] Speaker 04:
religious beliefs.

[00:07:52] Speaker 02:
Does it matter that she made the post sort of in response to Alaska's statement on this sort of company intranet?

[00:08:00] Speaker 02:
In other words, if she, for example, had said directly to another coworker who she knew was gay the same comment, would that be a different case?

[00:08:09] Speaker 04:
It could possibly, but that would depend upon, of course, the factual circumstances.

[00:08:14] Speaker 04:
So if you have a case like Bodette, for instance,

[00:08:17] Speaker 04:
where you have a supervisor that is repeatedly coercing her subordinate over a period of months, including during her performance reviews, such that she was afraid for her position.

[00:08:28] Speaker 04:
That would of course be a very different situation than this one, where the company is opening up this forum.

[00:08:35] Speaker 04:
And even a week before,

[00:08:37] Speaker 04:
on the Alaska's World website on the racial equity policy, there was open discussion, which got heated and even led to accusations that the comments were offensive to other people, but they allowed that discussion.

[00:08:51] Speaker 04:
And so this was the forum without disciplining or even removing comments.

[00:08:57] Speaker 04:
So this was the forum plaintiffs were posting into.

[00:09:01] Speaker 04:
But then because of plaintiffs, the airline

[00:09:05] Speaker 04:
It fired them, of course, and then changed its commenting policy to prohibit religious comments moving forward.

[00:09:12] Speaker 01:
And I'm still trying to think of line drawing here, and I think that's a favorable fact for your clients that Alaska had opened this intranet forum.

[00:09:19] Speaker 01:
But what if with flight attendants on a flight gets in the PA system and says, you know, put your seats and trays upright, and oh, by the way, the Equality Act can endanger our religious liberties?

[00:09:29] Speaker 01:
Would Alaska be able to discipline a flight attendant who does that?

[00:09:33] Speaker 04:
Most likely, yes.

[00:09:35] Speaker 04:
I don't see why.

[00:09:36] Speaker 04:
If that was their neutral policy that was applied in a non-discriminatory way, that a flight attendant can't go on and post their positions about controversial subjects over their intercom, which probably is their policy, then that would be a very different case here.

[00:09:55] Speaker 04:
So the problem is not only did the airline

[00:09:58] Speaker 04:
flight or define its policy to define their religious beliefs as inherently discriminatory, but it applied its harassment policy in a way that discriminates against Christians.

[00:10:08] Speaker 04:
So even just looking at that with the way the airline treated flight attendants who were accused of discriminating and harassing against Christians was very lenient.

[00:10:18] Speaker 04:
it let those flight attendants go with just an oral warning or no discipline at all.

[00:10:24] Speaker 04:
But when Christians were accused of violating the same policy, Christian flight attendants, they were given lengthy suspensions or terminations.

[00:10:31] Speaker 02:
Is there any problem with Alaska going forward, prohibiting on Alaska's world the discussion of religious topics?

[00:10:40] Speaker 02:
Is that something you think they can do?

[00:10:42] Speaker 02:
It's not this case because we're talking about a termination, but is that one way they can address this?

[00:10:46] Speaker 04:
discussion of religious topics going forward, it could potentially be a solution if they want to.

[00:10:54] Speaker 02:
I thought you said they now don't allow religious comments at all on Alaska's world.

[00:10:58] Speaker 02:
Is that correct?

[00:10:59] Speaker 04:
They don't.

[00:11:00] Speaker 04:
They changed their commenting policy to not allow religious comments.

[00:11:04] Speaker 04:
The reason why that's very important here is because they changed that commenting policy because of plaintiffs.

[00:11:11] Speaker 04:
So it shows that what happened to plaintiffs was religious discrimination.

[00:11:15] Speaker 04:
and that they are targeting them because they found an expression of their religious beliefs to be inappropriate, to be discriminatory.

[00:11:23] Speaker 04:
And this court, in fellowship of Christian athletes on Banque, held that disparaging

[00:11:29] Speaker 04:
traditional Christian beliefs about marriage as discriminatory or hurtful was itself evidence of anti-religious animus.

[00:11:38] Speaker 04:
So we'd argue that the same finding could be here, that a reasonable jury viewing all the facts in the light most favorable to Brown and Smith

[00:11:49] Speaker 04:
could see that the airline disparaging their religious beliefs as discriminatory and offensive and even hateful is evidence of anti-religion.

[00:12:00] Speaker 02:
There's also a claim against the union.

[00:12:01] Speaker 02:
So do the facts look any different when you're looking at Alaska Airlines as a defendant versus the union?

[00:12:09] Speaker 04:
The facts are overlapping, but the facts against the unions are very stark.

[00:12:14] Speaker 04:
So we have the most salient fact is the fact that the union president repeatedly contacted the airline to report plaintiff's comments for discipline.

[00:12:24] Speaker 04:
And in one of those comments, when he was reporting Brown and Smith, he complained about their religious faith.

[00:12:31] Speaker 04:
He said, check out Marley Brown's post, as if Lacey's wasn't enough.

[00:12:36] Speaker 04:
I wish fewer people would struggle so much.

[00:12:38] Speaker 04:
with unifying their faith with inclusivity.

[00:12:41] Speaker 04:
So this is direct evidence that the union president was offended by their religious beliefs and was complaining to the airline and seeking to get them disciplined because of those religious beliefs.

[00:12:51] Speaker 02:
There's also this preemption issue with respect to the state law claims.

[00:12:57] Speaker 02:
Before we get into the merits of the preemption issue, does this issue really matter from a liability standpoint?

[00:13:02] Speaker 02:
I understand you want to be able to pursue the state law claims on behalf of your clients against the union, but would it change anything in terms of the bottom line?

[00:13:10] Speaker 04:
All the parties agree that the analysis here would be the same, but it could affect the damages.

[00:13:17] Speaker 02:
In what way?

[00:13:19] Speaker 04:
There are different requirements or there are different standards under the legal.

[00:13:23] Speaker 02:
Do you believe you'd be possibly entitled to greater relief under state law?

[00:13:27] Speaker 04:
Yes, your honor.

[00:13:31] Speaker 04:
So the reason why the preemption issue should be addressed is there is conflict within this circuit.

[00:13:38] Speaker 04:
And we argue that this court should follow the very detailed reasoning of Figueroa v. Ferguson, which found that state law employment discrimination claims are within the intent of Congress and are not preempted.

[00:13:52] Speaker 04:
Adkins versus Morales is very

[00:13:54] Speaker 04:
or did not address that issue of whether state employment discrimination claims are preempted.

[00:14:00] Speaker 04:
And because those state claims derive from the state statute rather than from the collective bargaining agreement, they are not preempted.

[00:14:12] Speaker 05:
Are there further questions at this point?

[00:14:16] Speaker 05:
Is that a no?

[00:14:16] Speaker 05:
Yeah.

[00:14:18] Speaker 03:
OK.

[00:14:18] Speaker 05:
I don't think we have any further questions at this point.

[00:14:19] Speaker 05:
Would you like to reserve your time?

[00:14:21] Speaker 05:
Yes, Your Honor.

[00:14:21] Speaker 05:
You bet.

[00:14:26] Speaker 03:
Good morning.

[00:14:27] Speaker 03:
May it please the court, Lauren Paris Watts of Seifarth Shaw on behalf of Alaska Airlines.

[00:14:32] Speaker 03:
Your honors, this court should affirm the district court's grant of summary judgment in Alaska's favor.

[00:14:38] Speaker 03:
I want to clarify the reason for Alaska's termination of appellant's employment and then address why the appellant's position is untenable, both practically and legally, and also why Alaska's decision was an exercise of its business judgment.

[00:14:55] Speaker 03:
With respect to the basis for termination, appellants terminated the employment not because of the religious beliefs, but because of their discriminatory conduct.

[00:15:05] Speaker 03:
And I would ask the court to look at the evidence, which was just referenced by counsel, which is the notice of discharge.

[00:15:11] Speaker 03:
So for Smith, it says that Smith broadcasted, well, the reason she was terminated is because she broadcasted statements that all LGBTQ individuals are immoral.

[00:15:21] Speaker 03:
That is what the,

[00:15:24] Speaker 03:
how Alaska interpreted her comments, and that is reflected in the Notice of Discharge.

[00:15:29] Speaker 02:
How is that self-evidently a reasonable interpretation?

[00:15:33] Speaker 02:
Perhaps that's an interpretation, but all it says is, do you think it's possible to regulate morality?

[00:15:38] Speaker 03:
Well, Your Honor, the fact that she puts a question mark and uses it as a rhetorical device doesn't change it from

[00:15:46] Speaker 03:
an expression of her belief that folks who are at issue in this article, which is the LGBTQ community, are immoral.

[00:15:56] Speaker 05:
So I agree the question, Mark, doesn't change.

[00:15:59] Speaker 05:
I mean, it's a provocative statement.

[00:16:01] Speaker 05:
So I think in response to Judge Perez's question, if you could circle back on it, I think it's an important point.

[00:16:09] Speaker 05:
Even if we interpret it as I think Alaska did, it's not a sincere question.

[00:16:12] Speaker 05:
I think they interpreted it as a statement.

[00:16:15] Speaker 05:
How does that change the equation that you're really asked to respond to here?

[00:16:21] Speaker 05:
And the question being how is it?

[00:16:22] Speaker 05:
A primitive statement that one cannot regulate morality.

[00:16:24] Speaker 05:
Let's take it as that, because I think that's how Alaska pretty clearly interpreted it.

[00:16:29] Speaker 05:
But you've asked us to look at that one sentence statement and compare it to the notice of discharge.

[00:16:36] Speaker 03:
Right, which is the notice of discharge meaning how Alaska not only interpreted it, that's the record, the evidence of how Alaska interpreted that statement and what Alaska told Smith as part of her investigatory process and her termination, how they interpreted that statement.

[00:16:50] Speaker 05:
Right, and so I guess what Judge Bras is getting at, I think, and certainly what I would like you to get at is to talk about that goal from whether that's a reasonable interpretation or what happens if we think it wasn't a reasonable interpretation.

[00:17:00] Speaker 03:
Well, Your Honor, I would remind the court that it's not for the court to sit as a super personnel department and to second guess Alaska's decision.

[00:17:08] Speaker 03:
The question is, did Alaska enforce neutral policies, anti-discrimination policies, which it did.

[00:17:17] Speaker 03:
And we don't just have Alaska's interpretation of this.

[00:17:20] Speaker 03:
We also have the response from Alaska's workforce to these statements, responses like highly offensive,

[00:17:27] Speaker 03:
I feel like I'm in sixth grade again being abused by other kids.

[00:17:31] Speaker 03:
Somebody's using their soapbox to further marginalize already marginalized people.

[00:17:35] Speaker 05:
Right.

[00:17:35] Speaker 05:
So can we just, I think that's right.

[00:17:37] Speaker 05:
And this is why I think Alaska was in a really tough spot.

[00:17:40] Speaker 05:
They have to make sure and the record as far as I can see is they were very concerned about making sure they didn't have a hostile work environment.

[00:17:46] Speaker 05:
Okay.

[00:17:47] Speaker 05:
I get that.

[00:17:47] Speaker 05:
Judge Bress is also right, I think, clearly there are other steps they could have taken.

[00:17:51] Speaker 05:
And so I'm trying to make sure that we understand clearly what your argument is about the legal ramifications here.

[00:17:58] Speaker 05:
Alaska didn't have to interpret this quite as broadly as it did, I don't think.

[00:18:02] Speaker 05:
So what do we do if we think that the statement, and I'm willing to go with you that it was an affirmative statement as opposed to a question, but what do we do if we think that there was another

[00:18:14] Speaker 05:
interpretation Alaska could have given it, or that Alaska, more importantly, that Alaska's interpretation as expressed in the notice of discharge was an unreasonable interpretation?

[00:18:23] Speaker 03:
Well, Your Honor, I would remind the court as to Smith, since we're focusing on her statement.

[00:18:27] Speaker 03:
We're focusing on Smith, right.

[00:18:28] Speaker 03:
Was in progressive discipline.

[00:18:29] Speaker 03:
And the record is very clear that she was told in no uncertain terms anything else, an attendance issue, will result in termination.

[00:18:37] Speaker 03:
She was within six months of the most egregious discipline that Alaska had ever given a flight attendant.

[00:18:43] Speaker 03:
uh... which was a thirty-day unpaid suspension so her making a statement that

[00:18:48] Speaker 03:
could have resulted in something less.

[00:18:51] Speaker 02:
Maybe a... I don't really see how that changes the quality of the statement.

[00:18:54] Speaker 02:
I mean, I think she was on thin ice, so if she did something else, she was on warning.

[00:18:59] Speaker 02:
The question is, is this that something else that would justify the termination, or was this really... Could a reasonable jury, looking at these facts, construing all the facts in the plaintiff's favor, view this as discrimination on the basis of religious views?

[00:19:15] Speaker 03:
Your Honor, yes.

[00:19:18] Speaker 03:
the uh... statement which we i think we're working with the with the understanding that this isn't just a question this is her making a statement with a question mark rhetorically is is meant to uh...

[00:19:32] Speaker 03:
to agitate the situation.

[00:19:35] Speaker 01:
We're at the summer judgment stage, and we have to construe facts most favorable to the non-moving party, the flight attendants.

[00:19:42] Speaker 01:
And this whole statement, as a company, do you think it's possible to regulate morality?

[00:19:46] Speaker 01:
It can be viewed in different ways.

[00:19:47] Speaker 01:
And there's one way, which Alaska took as an offensive statement, but that could be just the other view is Alaska asked its employees, what are your views on this act?

[00:19:57] Speaker 01:
And she expressed her views.

[00:20:00] Speaker 01:
So, you know, why isn't this for a jury to turn what this statement meant and was Alaska justified in firing them?

[00:20:07] Speaker 03:
I appreciate that Judge Lee.

[00:20:09] Speaker 03:
Alaska didn't ask what are your views on the morality of the LGBTQ community, which is what she's commenting on.

[00:20:15] Speaker 03:
Alaska posted the Equality Act, which was about providing rights to the LGBTQ community.

[00:20:22] Speaker 03:
which she could have commented on, whether she was in support or not in support of that act.

[00:20:27] Speaker 03:
That's not what she did.

[00:20:28] Speaker 03:
She then used that opportunity to broadcast to 26,000 people that she thinks that that lifestyle is immoral.

[00:20:36] Speaker 01:
She never used those words.

[00:20:37] Speaker 01:
Again, you're kind of imputing this.

[00:20:38] Speaker 01:
It says, do you think it's possible to regulate, i.e.

[00:20:40] Speaker 01:
legislate, morality?

[00:20:43] Speaker 01:
In part, this was Alaska's problem.

[00:20:45] Speaker 01:
They picked a law that was probably controversial.

[00:20:48] Speaker 01:
People have differing views, and then asked them for their opinions.

[00:20:53] Speaker 01:
And you're going to get opinions pro and con.

[00:20:55] Speaker 01:
And it looks like she expressed an opinion that's con.

[00:20:58] Speaker 01:
But if she used a slur or certain things, I think we can all agree, Alaska would be justified in firing.

[00:21:06] Speaker 01:
But this is a pretty vague statement that's susceptible to multiple meanings.

[00:21:12] Speaker 03:
Your Honor, respectfully, I don't think it's a vague statement, and I think the context matters, especially with this particular... Can I ask you to stop there, though?

[00:21:20] Speaker 05:
I appreciate that you're basically answering Judge Lee's question by saying you think it can't be, cannot be interpreted two different ways.

[00:21:27] Speaker 05:
I get that, but what do we do about the fact... I think we're skipping over a step here.

[00:21:34] Speaker 05:
got a response from her.

[00:21:37] Speaker 05:
She's got a question mark at the end of that statement.

[00:21:39] Speaker 05:
Alaska, there's some indication that Alaska interpreted initially as a philosophical question.

[00:21:45] Speaker 05:
There's an internal dialogue where they say, this isn't a philosophical question.

[00:21:48] Speaker 05:
How should we respond?

[00:21:49] Speaker 05:
And they responded.

[00:21:50] Speaker 05:
They didn't immediately take it down or discipline her.

[00:21:52] Speaker 05:
I'm really interested in the legal ramifications of that being management's initial response to her and then

[00:22:00] Speaker 05:
or management, I'll just say Alaska's management, recognizing that their employees were not taking it that way.

[00:22:06] Speaker 05:
They were offended.

[00:22:07] Speaker 05:
So hence this overlap with the hostile work environment.

[00:22:10] Speaker 05:
How do we analyze that?

[00:22:11] Speaker 05:
I'm looking now, I've given you the fact pattern as I understand it, and I'm trying to figure out as a matter of law, does that change the permissibility of Alaska taking the steps that it took against a person who was on probation?

[00:22:23] Speaker 03:
Um, I think it's important to just kind of fill out that content, that, that record a little bit on what happened.

[00:22:28] Speaker 03:
So when she posted this statement and then they respond and, and they put in their response, she just said, as well as, you know, we have policies against discrimination.

[00:22:39] Speaker 03:
The record is that that was not limiting that that wasn't the only response.

[00:22:44] Speaker 03:
It was something that they needed to immediately put up that they needed to respond.

[00:22:48] Speaker 03:
I think this was my memory.

[00:22:49] Speaker 03:
I'm sorry, your honor.

[00:22:50] Speaker 03:
I don't remember this exactly, but I think this was happening towards the end of a week.

[00:22:53] Speaker 03:
And so they felt like they needed to respond immediately.

[00:22:56] Speaker 03:
That doesn't mean that they weren't going to discipline her.

[00:22:58] Speaker 03:
That doesn't mean that they weren't going to investigate it.

[00:23:00] Speaker 03:
But they needed to do something to respond.

[00:23:03] Speaker 05:
But was that response one that went out to the whole group?

[00:23:06] Speaker 05:
Yes.

[00:23:07] Speaker 05:
Not just to her?

[00:23:08] Speaker 03:
Yes.

[00:23:08] Speaker 05:
OK.

[00:23:10] Speaker 05:
Yes.

[00:23:10] Speaker 05:
And then I'm into it.

[00:23:11] Speaker 05:
Thank you for that clarification.

[00:23:12] Speaker 05:
And then I'm interested in the legal consequences of Alaska recognizing, if I can say that, if I interpret the record to be that Alaska realizes over the course of a few days

[00:23:22] Speaker 05:
This is not landing well in the workplace, and people are offended and concerned.

[00:23:27] Speaker 05:
Again, I'm going to their duty vis-a-vis the hostile work environment.

[00:23:32] Speaker 05:
So how does that change the legal analysis?

[00:23:35] Speaker 03:
Well, Your Honor, one, it wasn't over a few days.

[00:23:37] Speaker 03:
This is happening pretty quickly within a day.

[00:23:40] Speaker 03:
And why I think it matters from a legal perspective is that once Alaska is aware that its employees are

[00:23:49] Speaker 03:
employees, meaning folks in that protected community, are interpreting these statements as harassment.

[00:23:56] Speaker 03:
We are now asking Alaska to be on the razor's edge of liability and think about whether they protect the people in the LGBT community from their concerns or

[00:24:05] Speaker 03:
somebody who at that point wouldn't even know that she's religious.

[00:24:08] Speaker 02:
Is this a situation the company created by having, by posting, you know, support for a political initiative and then inviting people to comment on it?

[00:24:16] Speaker 02:
I mean, it seems a very different case if a flight attendant is just saying something to a co-worker or to passengers, but here it's an open forum.

[00:24:25] Speaker 03:
Respectfully, Your Honor, two points on that.

[00:24:27] Speaker 03:
One, they're supporting an act that was to provide the same rights to the LGBTQ community.

[00:24:36] Speaker 03:
They're not posting an article asking for people to comment on morality or transgender rights.

[00:24:43] Speaker 02:
So what if she posted saying, I don't think LGBTQ people should have the same rights?

[00:24:49] Speaker 02:
Is that harassment?

[00:24:52] Speaker 03:
Yes.

[00:24:53] Speaker 02:
Okay, so the position of the company is essentially once it posts these things and invites comments, it's not okay to have a negative comment?

[00:25:01] Speaker 03:
No, the position of the company is that you can share your, and actually looking at even the commenting rules, if you have a position that is going to violate Title VII, it's going to be harassment, or violate their policy rather, it's going to be harassment.

[00:25:16] Speaker 03:
They would tell you not to do that with 26,000 people, not to broadcast that view.

[00:25:20] Speaker 03:
The commenting rule, the amended rule tells you that there are certain topics that shouldn't be debated here.

[00:25:26] Speaker 03:
They were not asking, as relates to Smith, which is who we're talking about,

[00:25:32] Speaker 03:
There's nothing about that article that would have invited her to comment on the morality.

[00:25:37] Speaker 03:
And I guess I would.

[00:25:39] Speaker 05:
I'm not sure why not.

[00:25:40] Speaker 05:
It seems to me that you're right between these two hypotheticals that my colleagues have asked you to entertain.

[00:25:46] Speaker 05:
One was as a flight attendant who just sort of suespante makes this announcement on a flight.

[00:25:49] Speaker 05:
And I think you've said, not OK.

[00:25:51] Speaker 05:
Or maybe that was opposing counsel.

[00:25:52] Speaker 05:
Forgive me.

[00:25:53] Speaker 03:
Yeah, that was opposing counsel.

[00:25:54] Speaker 03:
But I agree.

[00:25:54] Speaker 05:
But Judge Brez has asked you a different question.

[00:25:56] Speaker 05:
Given that Alaska has this forum,

[00:26:00] Speaker 05:
Right.

[00:26:00] Speaker 05:
And they're posting their position on something.

[00:26:03] Speaker 05:
And it is a forum that's not just an announcement, because they could certainly email their employees and just say, hey, we support this Black Lives Matter or we support this Equality Act.

[00:26:15] Speaker 05:
It is in a forum that invites response, isn't it?

[00:26:19] Speaker 03:
It is.

[00:26:20] Speaker 05:
And there's a pop-up that says, beyond best behavior, we have a zero tolerance policy, of course I'm summarizing.

[00:26:26] Speaker 05:
So how does that change the analysis?

[00:26:29] Speaker 05:
The pop-up?

[00:26:29] Speaker 05:
No, the fact that Alaska is making this announcement, it wants to be able to show its support for the Equality Act.

[00:26:36] Speaker 05:
I appreciate that.

[00:26:38] Speaker 05:
But it could have done that in a way that didn't ask for employees to jump into the conversation.

[00:26:44] Speaker 05:
What they did, that's Judge Press's point, right?

[00:26:47] Speaker 05:
They posted it in a place where employees were, I think, invited to respond.

[00:26:52] Speaker 05:
So it's kind of dangerous waters, but that's what they did.

[00:26:55] Speaker 05:
How does that change our analysis?

[00:26:57] Speaker 03:
So they were invited to respond.

[00:26:59] Speaker 03:
And the question in my mind, and I would ask the court to think about,

[00:27:02] Speaker 03:
is what were they invited to respond with, not with harassing statements.

[00:27:07] Speaker 03:
And we have evidence in the record of other people who had, not on the internet, but who had responses to Alaska's support of the Equality Act.

[00:27:15] Speaker 03:
We have Joe Sprague, who was the president of Horizon Air.

[00:27:19] Speaker 03:
He made a number of religious-based comments in response to the

[00:27:24] Speaker 03:
Alaska support for the Equality Act, no disciplinary action taken against him, and he was talking with other executives.

[00:27:29] Speaker 03:
So this is the highest level of Alaska.

[00:27:31] Speaker 03:
They're talking about people not agreeing with Alaska's position.

[00:27:35] Speaker 03:
There's evidence in the record of a pilot, I think we call him Pilot G, who also has concerns with Alaska's position on the Equality Act.

[00:27:42] Speaker 03:
And the CEO, Brad Tilden,

[00:27:45] Speaker 03:
engages with him and talks to him about that, and we can see an email thread on the inside of how they're receiving the pilot's comments, and there are no negative responses.

[00:27:56] Speaker 03:
So it's not that Alaska is taking issue with the fact that people are not in support of the Equality Act.

[00:28:01] Speaker 03:
They are taking issue with the fact that Smith and

[00:28:05] Speaker 03:
Brown, who we haven't talked much about, but both of those individuals made statements that went beyond the bounds of just religious expression.

[00:28:12] Speaker 03:
They violated Title VII.

[00:28:14] Speaker 03:
So long as we have religions that are not perfectly aligned with Title VII, we will have restrictions on religious expression in the workplace.

[00:28:24] Speaker 03:
There are things that we say in our scriptural studies or in our small groups that just have no place at work.

[00:28:30] Speaker 03:
I might say, for example,

[00:28:31] Speaker 03:
I'm called to love my neighbor as myself.

[00:28:34] Speaker 03:
That's OK for me to say that.

[00:28:35] Speaker 03:
That doesn't violate Title VII.

[00:28:38] Speaker 03:
But what we don't want is somebody who, let's say, has a religious belief against the military, for example, because their religion has religious tenets not to promote violence.

[00:28:52] Speaker 03:
And now they're going into the workplace and making harassing statements towards the military and our veterans.

[00:28:56] Speaker 03:
There have to be boundaries to what can be said.

[00:29:02] Speaker 02:
Alaska had decided in its notice of discharge the reason we're firing you is because of your the nature of the religious beliefs expressed in your posts I take it we all agree They can't do that right even if the Alaska might have also regarded the statements as harassing You know if they were firing them because of their beliefs and

[00:29:27] Speaker 03:
and not their conduct, their harassing conduct, I would agree.

[00:29:30] Speaker 03:
They can't fire them for their beliefs.

[00:29:32] Speaker 03:
They can fire them for engaging in conduct, even if inspired by religion, if it violates Title VII or their policies, which is what they did.

[00:29:40] Speaker 02:
Right.

[00:29:40] Speaker 02:
But I mean, the question I guess I keep coming back to is, who should decide this?

[00:29:45] Speaker 02:
Should this be decided by a court, or should this be decided by jurors who would listen to these arguments and hear the witnesses and hear the testimony of the people who are involved in this?

[00:29:56] Speaker 02:
and hear people explain some of these text messages, particularly the one about unifying faith with inclusivity, which I think is a tough piece of evidence for your side, and make the judgment as to whether the reason the firing happened was because of harassment or maybe because of religion.

[00:30:15] Speaker 03:
Well, Your Honor, as to the evidence, and the evidence specifically against Alaska,

[00:30:20] Speaker 03:
There isn't, well first we'll look at the comparator evidence.

[00:30:24] Speaker 03:
Lots of comparator evidence in here.

[00:30:25] Speaker 03:
No record of people's religious background.

[00:30:29] Speaker 03:
So it's like a race discrimination case where we don't know anybody's race but the plaintiff.

[00:30:33] Speaker 03:
They have to be outside the protected category to be a comparator.

[00:30:36] Speaker 02:
I thought the idea was there was some other kinds of comments that were also harassing or could be perceived to be harassing and didn't result in termination.

[00:30:44] Speaker 03:
Right.

[00:30:45] Speaker 03:
And for us, some of them did result in termination.

[00:30:48] Speaker 03:
Some of them, I think, had a last chance agreement.

[00:30:50] Speaker 03:
And we can go through each one if we need to.

[00:30:51] Speaker 05:
We're not going to do that because you're wildly over time.

[00:30:53] Speaker 05:
So OK.

[00:30:54] Speaker 05:
Thank you.

[00:30:55] Speaker 03:
Thank you, Your Honor.

[00:30:56] Speaker 03:
No, no, no.

[00:30:57] Speaker 03:
You can please finish answering such a precious question.

[00:31:00] Speaker 03:
Thank you.

[00:31:02] Speaker 03:
So as to the comparator evidence, for the reasons articulated in our brief, there's lots of reasons why those are different.

[00:31:10] Speaker 03:
And yes, there are some who have engaged in harassing behavior.

[00:31:14] Speaker 03:
um, and had different treatment.

[00:31:17] Speaker 03:
Um, but it still matters.

[00:31:19] Speaker 03:
Were they religious or non-religious?

[00:31:20] Speaker 03:
And there's good case law that talks about if we don't know that they're outside of the protected category, it's a not relevant comparator.

[00:31:26] Speaker 03:
Were they in the same working group?

[00:31:28] Speaker 03:
Was it the same conduct which matters?

[00:31:30] Speaker 03:
And I know that was a question, you know, if it's 26,000 or one, does that matter?

[00:31:35] Speaker 03:
Um, also the other evidence as against Alaska progressive discipline policy, the commenting rules, these things.

[00:31:41] Speaker 03:
There was no evidence tying that to the decision maker and to prove discriminatory animus, which we have case law.

[00:31:48] Speaker 03:
I think it's the PepsiCo case that says you need to have that nexus.

[00:31:51] Speaker 03:
Thank you, Your Honor.

[00:31:51] Speaker 05:
Thank you for your argument.

[00:31:57] Speaker 00:
Good morning, Your Honor.

[00:31:59] Speaker 00:
May please the court, Ben Berger on behalf of Association of Flight Attendants.

[00:32:03] Speaker 00:
First off, I want to apologize for my non-appearance this morning because of some late breaking health reasons.

[00:32:10] Speaker 00:
But with that said, I would like to use my time this morning to address three points.

[00:32:14] Speaker 00:
First, AFA explained its legitimate non-discriminatory reason for not advancing plaintiff's grievances to arbitration.

[00:32:23] Speaker 00:
Very simply, that was because it did not believe it could persuade a neutral arbitrator to overturn those discharge decisions.

[00:32:30] Speaker 00:
In the same way that you heard Council for Alaska talk about courts do not sit as a form of super management, they also don't sit as a form of super

[00:32:40] Speaker 00:
grievance panel to second-guess a union's decision when it's evaluating grievances.

[00:32:45] Speaker 02:
Let's assume you're right on that.

[00:32:46] Speaker 02:
Does that resolve the case, though, as to the union?

[00:32:49] Speaker 00:
It does, Your Honor, because here, even if we accept that plaintiffs have offered circumstantial evidence of discrimination, which we dispute, then under the burden-shifting framework, we then examine whether the union has offered its legitimate nondiscriminatory reason.

[00:33:07] Speaker 00:
plaintiff's briefing has ever disputed that that reason that the union didn't think these cases were winnable would not be... No, I mean, I'm not... The arbitration, I think you have a fair point at that stage in the process.

[00:33:19] Speaker 02:
The question I would have is what about earlier when union leaders are essentially referring the plaintiffs to Alaska for discipline?

[00:33:31] Speaker 00:
Well, on that point, I really do want to correct the record, because it is not the case that the union reported either of the plaintiffs for discipline.

[00:33:39] Speaker 00:
In Ms.

[00:33:40] Speaker 00:
Smith's case, Alaska already had actual knowledge of her post.

[00:33:45] Speaker 00:
And when Mr. Peterson contacted Ms.

[00:33:47] Speaker 00:
Williams, he did not

[00:33:49] Speaker 00:
make any request for discipline to be imposed.

[00:33:52] Speaker 00:
Similarly for Ms.

[00:33:53] Speaker 00:
Brown.

[00:33:54] Speaker 05:
But this part of the record is difficult for you, I think, because there's also testimony that he wasn't typically as involved as he was in this case.

[00:34:02] Speaker 05:
He seems to be, why couldn't the jury decide that he was going out of his way?

[00:34:06] Speaker 00:
Well, because we actually have the record evidence to see what his request was.

[00:34:10] Speaker 00:
And this, I think, is significant.

[00:34:12] Speaker 00:
What you heard from counsel or plaintiffs this morning say, what his actual request was when he contacted Ms.

[00:34:18] Speaker 00:
Williams is, can we please have

[00:34:20] Speaker 00:
these comments shut down.

[00:34:21] Speaker 00:
And you heard counsel say that would actually not be an adverse action.

[00:34:25] Speaker 00:
So we have to look at what was the actual request that Mr. Peterson said.

[00:34:32] Speaker 02:
Is there not a set of facts here under which a jury could conclude that Mr. Peterson and others were involved in bringing about the termination of these two plaintiffs?

[00:34:46] Speaker 00:
No, I don't think so, Your Honor, because

[00:34:49] Speaker 00:
You can take his individual comments for what they are, which I am happy to explain why we don't believe their amounts of circumstantial or direct evidence.

[00:34:57] Speaker 00:
But the problem that plaintiffs have is that those comments, the vast majority of them, preceded the union's decision to actually grieve the terminations.

[00:35:08] Speaker 00:
What's interesting here is that many of the questions that Your Honor asked this morning about how to interpret the statement that Ms.

[00:35:16] Speaker 00:
Smith made

[00:35:17] Speaker 00:
You can look at Alaska's notes from the grievance hearing where you will find Stephen Mahler, the union representative, making those very arguments.

[00:35:27] Speaker 00:
So the union thought, they filed these grievances because even though some union officers thought that the comments were ill-advised, they were personally disagreed with their attitude towards transgender individuals, the union took the position quite immediately

[00:35:46] Speaker 00:
We don't think that discharge is the punishment that's warranted here.

[00:35:49] Speaker 00:
And the union took many steps to advocate for plaintiffs in that respect.

[00:35:53] Speaker 00:
So it's our position that the actual institutional decision of the union to grieve these discharges is what's significant, not individual comments that may have preceded that decision.

[00:36:07] Speaker 01:
But these statements that we have in the record are really, really bad for you.

[00:36:11] Speaker 01:
I mean, things like,

[00:36:15] Speaker 01:
You mentioned, can we please get someone to shut down comments or put Marlee and Lacey in a burlap bag and drop them in a well?

[00:36:21] Speaker 01:
She needs to go.

[00:36:21] Speaker 01:
The union president saying the post is reprehensible and there should be repercussions.

[00:36:26] Speaker 01:
I mean, the unions are supposed to defend union members.

[00:36:29] Speaker 01:
Sometimes they do bad things, inappropriate things, but unions defend their members, not say there should be repercussions.

[00:36:36] Speaker 01:
I mean, this is really, really bad stuff.

[00:36:38] Speaker 00:
Well, the union did defend its members because it filed grievances and represented them at the grievance hearing.

[00:36:44] Speaker 00:
and even attempted to negotiate last chance agreements.

[00:36:47] Speaker 00:
But it's your honor that the quote that you reference about Mr. Peter saying these comments are reprehensible and there should be consequences in that very same statement, which was an internal union discussion.

[00:36:57] Speaker 00:
So no reason to think that the union would be, you know, making a show for some outside audience.

[00:37:05] Speaker 00:
This was Mr. Peterson saying to a union member who didn't want the union to make any advocacy

[00:37:11] Speaker 00:
on Ms.

[00:37:11] Speaker 00:
Smith's behalf.

[00:37:12] Speaker 00:
He said, we have a duty of fair representation to these individuals.

[00:37:16] Speaker 00:
And if they are disciplined, we will subscribe to a... Why couldn't a reasonable jury view that as insincere?

[00:37:25] Speaker 02:
In the context of somebody who said, yeah, this person is reprehensible and we want to put them in a burlap bag.

[00:37:32] Speaker 02:
Nonetheless, we will honorably defend them.

[00:37:37] Speaker 00:
It's difficult to, I think,

[00:37:39] Speaker 00:
make that inference when he's talking internally to union audiences.

[00:37:42] Speaker 00:
This is not him talking to the grievance themselves.

[00:37:45] Speaker 00:
It's not him talking to Alaska.

[00:37:46] Speaker 00:
This is what he's explaining internally.

[00:37:50] Speaker 00:
So I think we really have... That's the problem.

[00:37:52] Speaker 05:
It's the internal comments that are so concerning, sir.

[00:37:55] Speaker 05:
He's talking to Alaska.

[00:37:56] Speaker 02:
But also the text, though, I wish fewer people would struggle so much with unifying their faith with inclusivity.

[00:38:02] Speaker 02:
That was not purely internal, was it?

[00:38:05] Speaker 00:
That's true.

[00:38:08] Speaker 00:
But I think here,

[00:38:09] Speaker 00:
We find comments very similar to this in recent cases that this court has decided.

[00:38:14] Speaker 00:
So I'm thinking in particular of the Hiddle case, and Damiano too, frankly, another case that you heard counsel for plaintiffs mentioned, where the court found statements that particularly, yes, they referenced the plaintiff's religion, but the context is important.

[00:38:31] Speaker 00:
It was not that Mr. Peterson said, I find objectionable plaintiffs

[00:38:37] Speaker 00:
religiously inspired view that there are two unfixed sexes.

[00:38:42] Speaker 00:
He said, I wish that plaintiffs could articulate their views in a way that also was consistent with the requirements of being honoring inclusivity in the workplace.

[00:38:56] Speaker 05:
I think a jury could decide that.

[00:38:59] Speaker 05:
They could decide that, but would they have to?

[00:39:03] Speaker 00:
I would say because Hiddle and Damiano were decided on summary judgment that the posture here is the same.

[00:39:10] Speaker 00:
There's only one reasonable inference.

[00:39:12] Speaker 00:
But even if the court were inclined to view it that way, then we still have to complete the rest of the burden shifting framework, which applies whether we're using the McDonnell Douglas framework or the alternative, more holistic framework.

[00:39:26] Speaker 00:
The union then still

[00:39:29] Speaker 00:
gets to put forward its legitimate nondiscriminatory reason for taking the action that it did.

[00:39:34] Speaker 00:
And it is plaintiff's obligation to point to one of two things, either new evidence that shows that it was more likely than not that the underlying reason was discriminatory, which plaintiffs have not done.

[00:39:47] Speaker 00:
They've not said we have additional evidence.

[00:39:49] Speaker 00:
Or they can point to evidence from their prima facie case, but that specifically undermines the reason that the union

[00:39:58] Speaker 00:
offered.

[00:39:59] Speaker 00:
In fact, in the Damiano case, the court reiterated language from an earlier case, Chong, that made this point explicit.

[00:40:08] Speaker 00:
It is okay for a plaintiff to rely on its Prima Fascia case, but it has to specifically undermine the decision that the union made and its reasoning.

[00:40:16] Speaker 00:
We don't find evidence of that because the union did follow its written procedures, and there is testimonial and documentary evidence of what the union

[00:40:27] Speaker 00:
when it was deciding whether or not to take the two cases to arbitration, what the merits of that would be.

[00:40:32] Speaker 02:
And can you address, I know your time is running short, but since you represent the union, the preemption issue only affects the union.

[00:40:38] Speaker 02:
Can you address that?

[00:40:40] Speaker 00:
Yes.

[00:40:40] Speaker 00:
And your honor is correct that the issue is essentially moot.

[00:40:43] Speaker 00:
And I don't think you found any argument in the briefing from counsel that the damages would be different under state law.

[00:40:49] Speaker 00:
But even if it wasn't, the law of this circuit is governed by Adkins and what Adkins reflects

[00:40:55] Speaker 00:
is it refutes the conflation that plaintiffs are trying to make between two kinds of RLA preemption.

[00:41:02] Speaker 00:
One form of preemption stems from the creation of system boards, which channel disputes over contractual issues to arbitration.

[00:41:12] Speaker 00:
That's the one that plaintiffs rely on, but that's not what at issue here.

[00:41:16] Speaker 00:
What's at issue here is the form of preemption that flows from the union status as exclusive representative

[00:41:23] Speaker 00:
And then the consequent doctrine of duty of fair representation, it is that.

[00:41:28] Speaker 02:
If that is the right interpretation of Adkins, does that put us on?

[00:41:33] Speaker 02:
Does that mean we're splitting with the second and eighth circuits on this?

[00:41:38] Speaker 00:
I do think that, yes, there is language from those cases that suggests that they interpret it differently, but I would submit that the ninth circuit has understood this language correctly because we have to go back to the statute itself.

[00:41:51] Speaker 00:
there are different provisions of the RLA that correspond to each of these preemption doctrines.

[00:41:57] Speaker 00:
We have the provision that establishes system boards and the minor dispute concept, the major minor distinction.

[00:42:07] Speaker 00:
That is one statute.

[00:42:09] Speaker 00:
And then there is a separate provision in section one of the RLA, which deals

[00:42:15] Speaker 00:
with the workers' rights to have union representatives and then the doctrine of duty of fair representation and preemption that flows from that.

[00:42:23] Speaker 02:
So we want to be focused on what... Why is this not like a separate or independent duty, you know, in the meaning of Adkins?

[00:42:31] Speaker 02:
That it's not in the... That if you're discriminating against somebody based on their race or their religion, that that's kind of outside the collective bargaining process itself and there can be a separate claim.

[00:42:46] Speaker 00:
Well, yes, what Adkin says is that there could be a state-based claim if there was union actions that were distinct from the union's role as collective bargaining representative.

[00:42:59] Speaker 00:
But I don't think there's any dispute that all of the complaints that plaintiffs have about the union's conduct deal squarely with how it was acting as a representative.

[00:43:11] Speaker 05:
Thank you, counsel.

[00:43:12] Speaker 05:
You're considerably over time.

[00:43:14] Speaker 05:
So we're going to stop you there.

[00:43:15] Speaker 05:
Thank you.

[00:43:16] Speaker 05:
Could you give me one minute, please?

[00:43:32] Speaker ?:
OK.

[00:43:34] Speaker 04:
Thank you, Your Honors.

[00:43:35] Speaker 04:
The union just said that Peterson was not reporting the plaintiffs for discipline.

[00:43:40] Speaker 04:
The record shows that this is not true.

[00:43:43] Speaker 04:
He wrote, management needs to send her bigoted ASS packing.

[00:43:48] Speaker 04:
That's at 5ER1150.

[00:43:51] Speaker 04:
He wrote, management appears to be taking this seriously behind the scenes, or at least the initial signs are encouraging.

[00:43:58] Speaker 04:
And of course, you didn't hear that from me.

[00:44:00] Speaker 04:
That is at 6ER1296.

[00:44:02] Speaker 04:
And there are over 20 statements showing their hostility or the union's intent to get them fired or disciplined.

[00:44:10] Speaker 04:
Those are all compiled in a chart.

[00:44:13] Speaker 04:
that is on 6ER 1295 through 1301.

[00:44:17] Speaker 04:
And this all gave the airline the impression that the union agreed with the terminations, or at least Smith's, quote, off the record.

[00:44:29] Speaker 04:
That's at 5ER 982.

[00:44:32] Speaker 04:
So this is clearly not a situation

[00:44:36] Speaker 04:
where they were abiding by their standard practice.

[00:44:39] Speaker 04:
The airline or the union argued that they were just concerned with the manner that they were expressing their views, not with the views themselves.

[00:44:48] Speaker 04:
But the record, again, shows that this is not true.

[00:44:51] Speaker 04:
Adams wrote that she's not friends with Brown because, quote, her friends are all good women with good values who believe in equality, and she's too old to deal with crazy people and their SHIT.

[00:45:03] Speaker 04:
That's at 6ER1352.

[00:45:06] Speaker 04:
Taylor and Peterson called them their post-representable.

[00:45:09] Speaker 04:
When Brown was explaining her religious beliefs to the company, Taylor texted Adams that she may hurl, and they joked about Taylor not being able to keep poker face when representing her.

[00:45:19] Speaker 04:
This is for ER 849 to 50.

[00:45:23] Speaker 04:
And the union, even their decision to take the case arbitration was infected with anti-religious bias.

[00:45:31] Speaker 04:
You look at the union screening notes when they're discussing whether to take the case arbitration.

[00:45:36] Speaker 04:
The union writes, still again, calls Smith a bigot and says, you can be a bigot at home but not at work.

[00:45:44] Speaker 04:
And putting on the pride hat, I was very offended by the question.

[00:45:47] Speaker 04:
So the union chose not to take the cases of Brown and Smith's arbitration, but they took the case of CC and RN

[00:45:55] Speaker 04:
RN was accused of inappropriately touching or groping three women.

[00:45:59] Speaker 04:
The union argues that RN deserves another chance.

[00:46:03] Speaker 04:
So a reasonable jury viewing all of the evidence could certainly find that this was religious discrimination.

[00:46:09] Speaker 04:
The union was deeply offended by their religious beliefs and the expression of those beliefs and did not represent them well or that infected their representation.

[00:46:19] Speaker 04:
In Woods versus Graphic Communications, this court stated that overt acts of discrimination by union officials are violations of Title VII.

[00:46:30] Speaker 04:
And that is clearly what's going on here.

[00:46:32] Speaker 04:
In Goodman versus Luke and Steele,

[00:46:34] Speaker 04:
The Supreme Court interpreted the otherwise discriminate against language to say the plain language of the statute includes discrimination in the way that union officials represented workers.

[00:46:46] Speaker 04:
So this is clearly discrimination.

[00:46:50] Speaker 04:
And as to the company, the airline argued that plaintiffs were not fired for their religious beliefs, but a reasonable jury could find otherwise.

[00:47:01] Speaker 04:
At 5ER1055,

[00:47:05] Speaker 04:
The decision maker here wrote that she 100% agreed that employees are not entitled to their own beliefs on these issues, calling the beliefs themselves discriminatory.

[00:47:15] Speaker 04:
The decision maker also called opposite Brown, using the phrase opposite sex, discriminatory, because it implied that there were only two sexes.

[00:47:23] Speaker 04:
That's at 4ER 780 through 81.

[00:47:27] Speaker 05:
Plaintiff supervisors, I think the case against Smith is

[00:47:30] Speaker 05:
really different.

[00:47:31] Speaker 05:
Can you focus the point of your argument now on the comments related to Smith?

[00:47:35] Speaker 05:
Yes.

[00:47:36] Speaker 04:
Smith's supervisor testified that there was no way for Smith to have expressed her moral beliefs about LGBTQ issues to other employees without violating company policy.

[00:47:49] Speaker 04:
So it was about the airline defining her beliefs as inherently discriminatory, which is discriminatory on the basis of religion.

[00:47:59] Speaker 04:
So Smith's

[00:48:00] Speaker 04:
That was at 3ER 599 through 601.

[00:48:05] Speaker 04:
And Brown Supervisor also said something similar, that she could not have expressed her beliefs in any way that was consistent with company policy.

[00:48:15] Speaker 04:
That is 4ER 720.

[00:48:17] Speaker 04:
So Title VII.

[00:48:23] Speaker 04:
Title VII protects employees, all sorts of employees.

[00:48:27] Speaker 04:
Employers have obligations to all of their employees.

[00:48:31] Speaker 04:
And these are very important civil rights protections.

[00:48:35] Speaker 04:
Employees should not be afraid of losing their jobs just because their employers don't like their religious beliefs.

[00:48:43] Speaker 04:
We're asking for this court to reverse the opinion below.

[00:48:47] Speaker 05:
Thank you.

[00:48:48] Speaker 05:
We appreciate your argument and advocacy very much.

[00:48:50] Speaker 05:
We'll take that case under advisement and get to an opinion just as soon as we can.

[00:48:54] Speaker 05:
We'll stand in recess for today.