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No Liability For Supervisor’s Off-Duty Sexting
Hanin Atalla and Erik Lund met in the fall of 2017 when Atalla shadowed Lund at Rite Aid during her pharmacy school rotations. When Atalla’s rotation at Rite Aid ended, she attended a celebratory dinner with Lund and his wife, and the two kept in touch. Atalla later began work at Rite Aid as a graduate intern and then hourly staff pharmacist; Lund was her supervisor. Atalla and Lund became close friends, celebrated a Friendsgiving, joked regularly, and frequently went to lunch. They texted on their personal cell phones about a range of personal matters, including travel and vacations, exercise, food, weight loss, restaurants and getting together for meals, family and relatives, birthdays, fashion, drinking and alcohol, work issues, their respective spouses, pets, and social media. They also dined together as couples with their spouses, including once for Atalla’s birthday.
Approximately one month after Atalla’s birthday, while Atalla was at home and Lund was at a hotel for personal business, Lund began texting Atalla on their personal cell phones about the alcohol he was preparing to drink at the hotel. Shortly thereafter, Lund texted her a “Live Photo” of him masturbating, followed by a text that said, “I am so drunk right now.” He then texted, “Meant to send to wifey,” to which Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Lund then sent several more texts stating, “Both of us” and “Race to the bottom” accompanied by a photo of his penis. Atalla texted, “Erik, stop please,” to which he replied, “You are right.” The exchange ended.
Rite Aid promptly fired Lund and Atalla said she would not be returning to work. She filed a claim for violation of the Fair Employment and Housing Act (FEHA) for sexual harassment, failure to prevent sexual harassment, and a hostile work environment, among other things. The trial court granted Rite Aid’s motion for summary judgment, and Atalla appealed.
The California Court of Appeal affirmed the trial court because Atalla had not raised a triable issue of material fact that Lund was acting in the capacity of a supervisor in during the text exchange. Rather, the Court agreed with the trial court and Rite Aid that Lund and Atalla had an extensive texting relationship that predated her employment, the exchange occurred outside the workplace and outside of work hours, and the exchange arose from their friendship (yet also ended it). Moreover, Atalla admitted that she and Lund were friends before she worked at Rite Aid, and their friendship was not connected to her work at Rite Aid.
Because Atalla could not make the fundamental showing that Lund was acting in a supervisorial capacity, the Court affirmed the trial court’s ruling and dismissed the case.
Atalla v. Rite Aid, 2023 WL 2521909 (Cal. Ct. Appeal).
Note: Texting and drinking do not mix. This supervisor lost both his job and a friend. In addition, he could have been personally liable for damages had he been texting in his capacity as a supervisor.