Brown v. Alaska Airlines, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLI BROWN; LACEY SMITH, No. 24-3789

D.C. No.

Plaintiffs - Appellants,

2:22-cv-00668-

BJR

v.

OPINION

ALASKA AIRLINES, INC.;

ASSOCIATION OF FLIGHT

ATTENDANTS-CWA AFL-CIO,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Washington

Barbara J. Rothstein, District Judge, Presiding

Argued and Submitted August 22, 2025

San Francisco, California

Filed June 24, 2026

Before: Morgan Christen, Kenneth K. Lee, and Daniel A.

Bress, Circuit Judges.

Opinion by Judge Bress;

Partial Concurrence and Partial Dissent by Judge Christen

2 BROWN V. ALASKA AIRLINES, INC.

SUMMARY *

Employment Discrimination

The panel reversed the district court’s summary

judgment in favor of defendants Alaska Airlines, Inc., and

Association of Flight Attendants-CWA AFL-CIO (“AFA”)

and remanded for further proceedings in an employment

discrimination action brought by former flight attendants

Marli Brown and Lacey Smith.

Brown and Smith claimed that Alaska fired them

because of their religious beliefs, in violation of Title VII of

the Civil Rights Act of 1964 and state anti-discrimination

laws, and that their union, AFA, discriminated against them

based on their religious beliefs during Alaska’s internal

investigation. The district court granted summary judgment

for Alaska and AFA on plaintiffs’ federal claims and further

concluded that the Railway Labor Act preempted their state

anti-discrimination claims against the union.

Plaintiffs were fired after they posted comments on

Alaska’s World, an internal intranet communications

network, in response to the company’s post announcing its

support for the Equality Act, proposed federal legislation

that would extend certain federal nondiscrimination

requirements to cover discrimination involving sex, sexual

orientation, and gender identity in various contexts. The

panel held that, whether viewed through the lens of direct

and circumstantial evidence or through the burden-shifting

McDonnell-Douglas framework for Title VII cases,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. ALASKA AIRLINES, INC. 3

plaintiffs demonstrated a genuine dispute of material fact

whether Alaska terminated them because of their religious

beliefs, and the district court therefore erred in granting

summary judgment on their Title VII and state law

claims. Plaintiffs also demonstrated a genuine dispute of

material fact whether AFA attempted to cause or acquiesced

in their firing because of their religious beliefs.

Brown posted a facially religious statement that the

Equality Act would endanger the Christian church,

encourage suppression of religious freedom, and eliminate

conscience protections, and Alaska and the union understood

the religious basis for the post. Considering the facts in the

light most favorable to Brown, there was a genuine dispute

of material fact whether she was in fact fired for engaging in

discrimination or harassment or whether Alaska instead used

the cover of its employee policies to fire her because of her

religious beliefs.

Smith’s comment on Alaska’s World, that “As a

company, do you think it’s possible to regulate morality?”

was not explicitly grounded in religious belief, but Alaska

considered Smith’s situation in connection with Brown’s,

working them up together. The panel concluded that a

reasonable jury could find that the company’s stated neutral

reasons for firing Smith were pretextual and that there was a

genuine dispute of material fact whether AFA attempted to

cause Smith’s termination based on her religious beliefs or

acquiesced in it.

Agreeing with the Second and Eighth Circuits, the panel

held that the Railway Labor Act’s duty of fair representation

did not impliedly preempt plaintiffs’ Oregon and

Washington state law anti-discrimination claims against

AFA.

4 BROWN V. ALASKA AIRLINES, INC.

Concurring in part and dissenting in part, Judge Christen

concurred in the majority’s conclusion that both plaintiffs

demonstrated a genuine dispute of material fact that should

have prevented entry of summary judgment

regarding: (1) whether plaintiffs’ union, the AFA,

attempted to cause or acquiesced in the termination of their

employment on the basis of their religious beliefs; and

(2) whether Alaska Airlines terminated Brown on the basis

of her religious beliefs. Judge Christen also agreed that the

plaintiffs’ state law claims were not preempted by the

Railway Labor Act. Judge Christen dissented from the

majority’s decision to reverse the district court’s entry of

summary judgment on Smith’s claims against Alaska

because she did not agree that Smith demonstrated a genuine

dispute of material fact about whether Alaska terminated her

because of her religion.

COUNSEL

Stephanie N. Taub (argued), David J. Hacker, and Jeffrey C.

Mateer, First Liberty Institute, Plano, Texas; Rebecca R.

Dummermuth and Tabitha M. Harrington, First Liberty

Institute, Washington, D.C.; Andrew W. Gould, Holtzman

Vogel Baran Torchinsky & Josefiak PLLC, Phoenix,

Arizona; for Plaintiffs-Appellants.

Lauren P. Watts (argued), Joe Wonderly, and Joshua M.

Goldberg, Seyfarth Shaw LLP, Seattle, Washington; Dawn

R. Solowey and Lynn A. Kappelman, Seyfarth Shaw LLP,

Boston, Massachusetts; Scott P. Mallery, Seyfarth Shaw

LLP, Sacramento, California; Benjamin Berger (argued),

Darin M. Dalmat, and Kathleen P. Barnard, Barnard Iglitzin

BROWN V. ALASKA AIRLINES, INC. 5

& Lavitt LLP, Seattle, Washington; for Defendants-

Appellees.

Natalie C. Rhoads, Liberty University School of Law,

Lynchburg, Virginia, for Amici Curiae Hindu American

Coalition, Jewish Coalition for Religious Liberty, and Islam

and Religious Freedom Action Team of the Religious

Freedom Institute.

John A. Eidsmoe and Talmadge Butts, Foundation for Moral

Law, Gallant, Alabama, for Amicus Curiae Foundation for

Moral Law.

Katherine I. Hartley, Pacific Justice Institute, Coeur d'Alene,

Idaho; Emily C. Mimnaugh, Pacific Justice Institute, Reno,

Nevada, for Amicus Curiae Pacific Justice Institute.

John C. Sullivan, Jace R. Yarbrough, and H. Justin Pace, SL

Law PLLC, Cedar Hill, Texas, for Amicus Curiae Airline

Employees for Health Freedom.

Peter C. Breen and Michael G. McHale, Thomas More

Society, Chicago, Illinois, for Amicus Curiae Thomas More

Society.

Lauren A. Bone, Women's Liberation Front, Washington,

D.C., for Amicus Curiae Women's Liberation Front.

Nathan Maxwell, Lambda Legal Defense and Education

Fund Inc., Chicago, Illinois; Gregory R. Nevins, Lambda

Legal Defense and Education Fund Inc., Decatur, Georgia;

for Amicus Curiae Lambda Legal Defense and Education

Fund, Inc.

6 BROWN V. ALASKA AIRLINES, INC.

OPINION

BRESS, Circuit Judge:

Plaintiffs Marli Brown and Lacey Smith were flight

attendants at Alaska Airlines. They claim that Alaska fired

them because of their religious beliefs, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2,

and state anti-discrimination laws. Brown and Smith also

claim that their union, the Association of Flight Attendants-

CWA AFL-CIO (AFA), discriminated against them based on

their religious beliefs during Alaska’s internal investigation.

The district court granted summary judgment for Alaska and

AFA on plaintiffs’ federal claims. The court further

concluded that the Railway Labor Act, 45 U.S.C. § 151 et

seq., preempted plaintiffs’ state law anti-discrimination

claims against the union.

We hold that the plaintiffs have demonstrated a genuine

dispute of material fact whether Alaska terminated them

because of their religious beliefs and whether AFA attempted

to cause or acquiesced in their firing on this unlawful basis.

We further hold that the Railway Labor Act’s duty of fair

representation does not impliedly preempt plaintiffs’ state

law anti-discrimination claims against AFA. We reverse and

remand for further proceedings.

I. Facts and Procedural History

In reviewing a grant of summary judgment, we recite the

facts in the light most favorable to the plaintiffs as the non-

moving parties. Garcia v. County of Merced, 639 F.3d 1206,

1208 (9th Cir. 2011).

BROWN V. ALASKA AIRLINES, INC. 7

A. Alaska’s World

Alaska is a large airline that employs approximately

26,000 people. It maintains an internal intranet

communication network that it calls Alaska’s World.

Alaska’s World is visible to all Alaska employees, with the

company describing it as a “key vehicle for employee

communications.”

Alaska posts messages on Alaska’s World, and

employees are invited to reply and comment. Alaska

explained to employees that the “[c]omments are here for us

to openly and constructively share ideas, ask respectful

questions, and understand one another and our company.”

According to Alaska’s employee guidance on posting,

“[w]e’re a big team, inclusive of many people and

perspectives,” and “[o]ur differences make us better when

we support and respect each other, allowing each of us to be

who we are.” The company has expressed its commitment

to providing “a safe space culture where employees feel

empowered to have open and critical dialogue with their

peers and leaders.”

Alaska maintains various rules for the Alaska’s World

comments section. Among other things, commenters must

be “civil and respectful,” “disagree respectfully,” and use

appropriate language. Alaska’s typical practice is to remove

any comment that violates its policies. If Alaska deletes

three of an employee’s comments, the employee is blocked

from future commenting under a “three-strikes” policy (as

discussed below, this rule has since changed). Separately

from its commenting policy, Alaska maintains a zero-

tolerance policy for “harassment or discrimination of any

kind.” The company’s employee handbook provides that

harassment includes offensive jokes, threats, intimidation,

8 BROWN V. ALASKA AIRLINES, INC.

ridicule or mockery, insults, offensive pictures, and

interference with work performance. The handbook also

forbids “[t]he use of discriminatory or hurtful language or

slurs . . . regardless of the intent or the context.”

Alaska’s disciplinary process for employees generally

entails several progressive steps. That process typically

starts with a “confirmation of oral warning” and then

proceeds to escalating discipline culminating in termination.

But Alaska “doesn’t always progressively travel up the steps

of discipline” and there is “no middle ground for certain

violations.” In some contexts in which Alaska could

terminate an employee, the company issues “last chance

agreements” that allow the offending individual to remain

employed under certain conditions.

B. Plaintiffs’ Posts on Alaska’s World

On February 25, 2021, Alaska posted on Alaska’s World

to announce the company’s support for the Equality Act.

The Equality Act is proposed federal legislation that would

extend certain federal nondiscrimination requirements to

cover discrimination involving sex, sexual orientation, and

gender identity in various contexts. Internal company

records show that Alaska “underst[ood] the issue touches on

religious freedom concerns for some, and respect[ed] there

are differing interpretations of the legislation on that point.”

As Tiffany Dehaan, Alaska’s Managing Director for Culture,

Learning & Inclusion, testified, “we knew that there was

religious concerns that were continuing to come up.” As was

typical for Alaska’s World posts, Alaska allowed its

employees to comment on the company’s Equality Act

announcement.

Plaintiffs Marli Brown and Lacey Smith are Christians

who worked as flight attendants at Alaska Airlines for eight

BROWN V. ALASKA AIRLINES, INC. 9

and six years, respectively. Both were members of AFA, a

flight attendants’ union representing roughly 50,000 flight

attendants at Alaska Airlines and other carriers nationwide.

Shortly after Alaska posted about the Equality Act on

Alaska’s World, Smith posted in response: “As a company,

do you think it’s possible to regulate morality?” Smith’s

comment prompted responses on Alaska’s World from other

commenters, some of whom expressed disagreement. Other

employees voiced complaints about Smith’s comment to

AFA.

Alaska management discussed Smith’s post internally

and with AFA. Alaska did not initially remove Smith’s post

but instead decided to respond to it on Alaska’s World.

While drafting the company’s response, Andy Schneider,

Alaska’s Senior Vice President of People, coordinated with

AFA Master Executive Council President Jeffrey Peterson.

The AFA Master Executive Council is the main governing

body for AFA’s membership at Alaska. As Master Executive

Council President, Peterson was the executive officer in

charge of administering the collective bargaining agreement

between Alaska and AFA. Peterson had substantial

communications with Alaska about plaintiffs’ posts on

Alaska’s World as the company was contemplating its

response and disciplinary actions against the plaintiffs.

Following internal company discussions and

consultations with Peterson, Schneider posted the

company’s response to Smith’s comment on Alaska’s World.

The response read:

Supporting the Equality Act is not about

regulating morality. It’s about supporting

laws that allow our LGBTQ+ employees and

10 BROWN V. ALASKA AIRLINES, INC.

guests, no matter what state they live in or fly

to, to be protected against discrimination.

Our values are our guide, and we strongly

believe that doing the right thing and being

kind-hearted require us to support this act. As

we said above, we aren’t the kind of company

that stands by and watches—we’re going to

use our voice and be a leader on these issues.

We also expect our employees to live by these

same values. Our differences are to be

respected. As stated in our People Policies,

harassment and discrimination will not be

tolerated.

In internal Alaska emails discussing this draft, Taylor Ball of

Alaska’s legal department wrote, “Employees actually do

not have the right to believe that LGBTQ rights are

‘immoral,’” to which Carmen Williams, Alaska’s Vice

President of Inflight replied, “I 100% agree.”

Peterson, the AFA Master Executive Council President,

separately sent an email to his AFA colleagues expressing

dismay about Smith’s post. Referencing Smith, he wrote,

“Employees get to be bigots in their private lives and to

express their bigoted and misinformed opinions while not at

work—as horrifying as that may be.” He added that “the

post is reprehensible and there should be repercussions.”

Peterson also told others at AFA that “this will be an ongoing

and evolving conversation with management over the next

couple weeks.” Peterson separately texted “I hate her”

(referring to Smith) to a friend who was an Alaska pilot. He

also texted Toni Monroe, an Alaska employee, that Smith’s

post was “bullshit” and that “Mngmt needs to send [Smith’s]

bigoted ass packing for a variety of reasons.” Still, Peterson

BROWN V. ALASKA AIRLINES, INC. 11

informed his AFA colleagues that the union would “represent

[Smith] through the grievance process fairly, in good faith,

and without discrimination.”

Later that day, plaintiff Marli Brown independently saw

Alaska’s post and decided to read up on the Equality Act.

After her research, Brown felt religiously compelled to post

a response. Brown posted the following comment on

Alaska’s World:

Does Alaska support: endangering the

Church, encouraging suppression of religious

freedom, obliterating women rights and

parental rights? This act will Force every

American to agree with controversial

government-imposed ideology on or be

treated as an outlaw. The Equality Act

demolishes existing civil rights and

constitutional freedoms which threatens

constitutional freedoms by eliminating

conscience protections from the Civil Rights

Act. The Equality act would affect

everything from girls’ and women’s showers

and locker rooms to women’s shelters and

women’s prisons, endangering safety and

diminishing privacy. Giving people blanket

permission to enter private spaces for the

opposite sex enables sexual predators to

exploit the rules and gain easy access to

victims. This is Equality Act[.]

Brown later explained that her post contained information

that she copied and pasted from elsewhere.

12 BROWN V. ALASKA AIRLINES, INC.

That same day, Peterson flagged Brown’s comment to

Alaska management in a text chain that included Alaska’s

Carmen Williams and Michaela Littman, the Managing

Director of Flight Operations. Peterson texted these Alaska

executives to “[c]heck out Marli Brown’s post on [Alaska’s

World] re: Equality Act. Definitely lighting up social media

tonight, as if Lacey [Smith] wasn’t enough.” Peterson then

lamented, “I wish fewer people would struggle so much with

unifying their faith with inclusivity.” Peterson later

confirmed that it was unusual for him to get involved with

Alaska’s internal response to disciplinary incidents.

Independently, AFA representative Terry Taylor posted

in a Google chat with other union officials: “Can we

PLEASE get someone to shut down comments, or put Marli

and Lacey in a burlap bag and drop them in a well” (Taylor

later revised that message), and also that Brown “needs to

go!” In an email to another flight attendant who had

complained about the posts, Taylor called the posts

“reprehensible.” Taylor would later serve as Brown’s union

representative in Alaska’s disciplinary proceedings against

Brown. Union Grievance Chairperson Stephanie Adams

privately described Brown’s comments as “shitty,” also

telling Taylor that she expected Brown to receive “[a]t least

a suspension,” to which Taylor responded: “I certainly hope

so!” Adams in private texts also distinguished Brown from

her own friends, who are “good women with good values

and believe in equality.”

That night, Alaska deleted Brown and Smith’s comments

on Alaska’s World, shut down further comments, and began

investigating both plaintiffs. The company subsequently

changed its commenting rules to remove the three-strikes

policy. It also revised its policy to state that comments on

Alaska’s World should not “express partisan or personal

BROWN V. ALASKA AIRLINES, INC. 13

(such as religious or political) opinions.” Prior to that

change, and referencing correspondence he received from a

pilot who was concerned over Smith’s and Brown’s posts

being taken down, Brad Tilden, the retiring CEO of Alaska,

expressed concern to Alaska leadership “that we not [c]ensor

people for having conservative Christian views.”

C. Alaska Investigates and Terminates Brown

Meanwhile, on March 4, 2021, Alaska investigators

interviewed Brown with AFA representative Terry Taylor

attending by video and AFA’s Stephanie Adams appearing

by phone. The investigators’ “Fact Finding Report” noted

that during the meeting, Brown identified herself as

Christian. According to this company Report, Brown

clarified that she “loves her [LGBTQ] co-workers and that

the company support[s] equity as it relates to them,” but that

she posted to express concerns about the Equality Act’s

impact on religious people, women, and children. Alaska’s

internal report from the interview documents Brown’s

specific concern with how the Equality Act would be applied

“to employees at Alaska Airlines who didn’t identify as

[LGBTQ], specifically employees with religious belief

protection at work (employees connected to the Church).”

According to the report, Brown expressed remorse for any

offense caused and claimed she “had no intent to

discriminate or create hostility.” Instead, Brown maintained

that her concerns with Alaska’s announcement were

religious in nature and requested an accommodation that

would allow her to express her beliefs.

During the investigatory meeting in which Brown

relayed her religious concerns, her AFA representative, Terry

Taylor, privately texted AFA’s Stephanie Adams,

“[a]pparently [Brown] can’t stop herself . . . I may hurl,”

14 BROWN V. ALASKA AIRLINES, INC.

with the text exchange culminating in Adams writing to

Taylor: “Nice poker face . . . NOT.” Brown’s supervisor,

meanwhile, believed that Brown’s concerns were sincere and

recommended that she be given a “record of discussion” but

no discipline.

On March 19, 2021, Alaska determined that Brown’s

comments violated the company’s anti-discrimination and

anti-harassment policies and terminated her employment.

Brown’s Notice of Discharge stated that Brown’s comment

was “offensive, discriminatory, and did not align with Alaska

Airline’s values.” In particular, “[y]our comment stating that

providing equal rights to LGBTQ individuals threatens

others and equating LGBTQ individuals to sexual predators

is hateful and discriminatory” and “targets a group of

individuals based on their legally protected characteristics.”

Alaska also explained that Brown’s “misconduct cannot be

excused by requesting a religious accommodation after the

fact,” because Alaska is “not required to provide an

accommodation that permits actions that demean and

degrade . . . other employees.” Before Brown was

terminated, she had no record of prior discipline.

AFA filed a grievance on Brown’s behalf. According to

Brown, she wanted to raise her concerns about Alaska’s

treatment of her religious beliefs in the grievance process,

but AFA urged her not to. AFA did not otherwise raise

religious discrimination at the grievance hearing. Instead, at

the grievance meeting on March 30, 2021, Brown reiterated

that she never intended to hurt her coworkers, with Taylor

highlighting Brown’s “unblemished” employment record at

Alaska. Taylor also stated that Brown’s comment was

“unfortunate” and “offensive,” but that in Taylor’s opinion,

Brown was not “beyond salvation.”

BROWN V. ALASKA AIRLINES, INC. 15

Brown’s grievance was denied on April 13, 2021, and

Alaska refused to afford Brown a “last chance agreement” to

be conditionally reinstated. AFA subsequently declined to

arbitrate Brown’s case, concluding that it was unlikely to

succeed.

D. Alaska Investigates and Terminates Smith

Alaska also investigated Smith for her post on Alaska’s

World. Alaska investigators met with Smith on March 11,

2021, a week after the investigatory meeting with Brown.

Two AFA representatives attended the Smith meeting.

During Smith’s investigatory interview, Smith did not

tell Alaska that her comment on Alaska’s World was based

on her Christian faith. Instead, acting according to advice

from her AFA representatives, Smith told investigators that

her post was merely posing a “philosophical” question. She

acknowledged there were things in the Equality Act that she

disagreed with, but she clarified that she opposed

discrimination and supported human rights and diversity.

Smith claims she did not raise her religious beliefs during

this meeting because she feared that Alaska would

discriminate against her if she “used the word ‘religion.’”

Smith later described the meeting as “hostile” and recalled

that during “repeated, aggressive questioning,” she broke

into tears.

Alaska terminated Smith’s employment on March 19,

2021, the same day it terminated Brown. In Smith’s Notice

of Discharge, Alaska based its termination on Smith’s

violation of the company’s anti-harassment and anti-

discrimination policies. The Notice of Discharge stated that

“[d]efining gender identity or sexual orientation as a moral

issue, or questioning the company’s support for the rights of

all people regardless of their gender identity or sexual

16 BROWN V. ALASKA AIRLINES, INC.

orientation, is not a philosophical question, but a

discriminatory statement.” The Notice of Discharge found

that Smith’s post “was offensive, discriminatory, and did not

align with Alaska Airline’s values,” and that “we cannot

tolerate speech that is discriminatory in nature or targets a

group of individuals based on their legally protected

characteristics.”

Unlike Brown, Smith had a prior disciplinary history,

which Alaska referenced in its Notice of Discharge. Less

than one year before Smith commented on the Equality Act

initiative, she created an online petition entitled

“Depoliticizing Alaska Airlines,” which opposed Alaska’s

public support for the Black Lives Matter (“BLM”)

movement. Smith viewed the company’s support for BLM

as tantamount to promoting “a specific political

party/ideology and creat[ing] bias.” Alaska issued Smith a

thirty-day suspension for posting the petition and instructed

her to take the petition down. Alaska told Smith that any

misconduct in the 18 months following her suspension could

result in termination. Smith’s post on Alaska’s World fell

within this window.

During Smith’s grievance process, Smith argued for the

first time that Alaska was discriminating against her based

on her religious beliefs and asked for a religious

accommodation. Her grievance was denied, as was her

request for a last chance agreement. AFA elected not to

arbitrate Smith’s grievance based on its perception that her

case was unlikely to succeed. During internal AFA

deliberations over whether to arbitrate Smith’s grievance,

notes reflect Peterson stating that Smith “[c]an be a bigot at

home but not at work.”

BROWN V. ALASKA AIRLINES, INC. 17

E. Procedural History

Brown and Smith later filed this lawsuit asserting Title

VII and collateral state law claims against Alaska and AFA

for discrimination on the basis of religious belief. Brown

brought her state law claims under the Washington Law

Against Discrimination (WLAD), Wash. Rev. Code

§§ 49.60.030, 49.60.180, 49.60.190. Smith brought her state

law claims under Oregon’s Unlawful Discrimination in

Employment law, Or. Rev. Stat. § 659A.030(1)(a), (c). The

parties agree that the plaintiffs’ state law anti-discrimination

claims turn on the same substantive standards as federal Title

VII claims. Our discussion of plaintiffs’ Title VII claims

thus encompasses the state law claims, except where

specifically noted.

The district court concluded that the Railway Labor

Act’s federal duty of fair representation preempted plaintiffs’

state law anti-discrimination claims against the union,

dismissing these claims under Rule 12(b)(6). After

discovery, the district court granted summary judgment to

Alaska and AFA on plaintiffs’ Title VII and remaining state

law claims. In reasoning we will address below, the district

court held that Brown and Smith failed to establish a genuine

dispute of material fact that Alaska and AFA discriminated

against them because of their religious beliefs. Brown and

Smith appealed.

II. Title VII and Collateral State Law Anti-Discrimination

Claims

A. Legal Standards

We review the district court’s grant of summary

judgment de novo. Damiano v. Grants Pass Sch. Dist. No.

7, 140 F.4th 1117, 1136 (9th Cir. 2025). Under Federal Rule

18 BROWN V. ALASKA AIRLINES, INC.

of Civil Procedure 56(a), “[t]he court shall grant summary

judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” In reviewing the grant of

summary judgment, we “view the facts and draw reasonable

inferences” in favor of the nonmoving parties, here

plaintiffs. Scott v. Harris, 550 U.S. 372, 378–379 (2007).

“A factual issue is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1055 (9th Cir.

2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

Under Title VII, it is unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).

In addition, Title VII prohibits labor organizations from

“discriminat[ing] against” an individual, “adversely

affect[ing] his status as an employee,” or “caus[ing] or

attempt[ing] to cause an employer to discriminate against an

individual,” “because of” religion, among other protected

grounds. Id. § 2000e-2(c). As the EEOC has explained,

unions may not “knowingly acquiesce in employment

discrimination against their members, join or tolerate

employers’ discriminatory practices, or discriminatorily

refuse to represent employees’ interests.” U.S. Equal Emp.

Opportunity Comm’n, New Compliance Manual: Section 12

Religious Discrimination, § 12-I.B (2021) (EEOC

Compliance Manual).

This case involves claimed discrimination on the basis of

plaintiffs’ religious beliefs. Title VII defines “religion” to

BROWN V. ALASKA AIRLINES, INC. 19

“include[] all aspects of religious observance and practice,

as well as belief.” 42 U.S.C. § 2000e(j). Accordingly,

“[d]iscrimination on the basis of religious beliefs is

discrimination on the basis of religion for purposes of Title

VII.” Damiano, 140 F.4th at 1155 (citing Groff v. DeJoy,

600 U.S. 447, 458 (2023)). An employer firing an employee

“because of” her religious beliefs is therefore unlawful, as is

a union causing or attempting to cause an employer to fire

an employee on this protected basis. 42 U.S.C. § 2000e-

2(a), (c). “Title VII’s ‘because of’ test incorporates the

‘simple’ and ‘traditional’ standard of but-for causation. That

form of causation is established whenever a particular

outcome would not have happened ‘but for’ the purported

cause.” Bostock v. Clayton Cnty., Ga., 590 U.S. 644, 656

(2020). In addition, Title VII also contains a “more forgiving

standard,” id. at 657, by which “an unlawful employment

practice is established when the complaining party

demonstrates that [a protected ground] was a motivating

factor for any employment practice.” 42 U.S.C. § 2000e-

2(m); see also EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768, 772–73 (2015); Hittle v. City of Stockton, 101

F.4th 1000, 1012 (9th Cir. 2024).

A Title VII plaintiff may pursue her claim by producing

“direct or circumstantial evidence” that her employer acted

adversely because of an unlawful discriminatory reason.

Damiano, 140 F.4th at 1154 (quoting McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). Alternatively,

the plaintiff may proceed under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). See Damiano, 140 F.4th at 1154.

Under McDonnell Douglas, a plaintiff alleging

discriminatory treatment must initially make out a prima

facie case by showing: “(1) she is a member of a protected

20 BROWN V. ALASKA AIRLINES, INC.

class; (2) she was qualified for her position; (3) she

experienced an adverse employment action; and

(4) similarly situated individuals outside her protected class

were treated more favorably or other circumstances

surrounding the adverse employment action give rise to an

inference of discrimination.” Id. at 1155. “At summary

judgment, the degree of proof necessary to establish a prima

facie case is ‘minimal and does not even need to rise to the

level of a preponderance of the evidence.’” Id. (quoting

Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)). If

the plaintiff makes out a prima facie case under McDonnell

Douglas, “the defendant bears the burden of producing a[]

neutral explanation for its action, after which the plaintiff

may challenge that explanation as pretextual.” Id. at 1154–

55 (quoting Comcast Corp. v. Nat’l Ass’n of Afr. Am-Owned

Media, 589 U.S. 327, 340 (2020)).

At summary judgment, the plaintiff’s obligation is not to

show decisively that she will win, but that triable issues

remain for a jury to resolve. Thus, “[w]e have repeatedly

held that it should not take much for a plaintiff in a

discrimination case to overcome a summary judgment

motion.” France v. Johnson, 795 F.3d 1170, 1175 (9th Cir.

2015) (collecting cases). In particular, we have repeatedly

said that “very little[] evidence is necessary to raise a

genuine issue of fact regarding an employer’s motive.”

Opara v. Yellen, 57 F.4th 709, 723–24 (9th Cir. 2023)

(quoting McGinest, 360 F.3d at 1124) (alteration in original);

see also, e.g., Damiano, 140 F.4th at 1155; Chuang v. Univ.

of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir.

2000).

In this case, Smith and Brown both established, at

minimum, a genuine dispute as to the first three elements of

their prima facie case. Smith and Brown claim they were

BROWN V. ALASKA AIRLINES, INC. 21

discriminated against based on their religious beliefs, a

protected ground. See Damiano, 140 F.4th at 1154–55. The

record supports the conclusion that both plaintiffs were

qualified for their positions as flight attendants. Brown had

been working as a flight attendant since 2013, with an

unblemished employment record at Alaska prior to her

termination. Despite a prior disciplinary issue relating to her

BLM petition, Smith similarly received a substantial amount

of positive customer feedback. Both plaintiffs had good

working relationships with LGBTQ colleagues, with no

history of negative interactions. Finally, because plaintiffs

were terminated, they of course suffered an adverse

employment action. See, e.g., Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

Accordingly, whether viewed through the lens of direct

and circumstantial evidence or through the McDonnell-

Douglas framework, plaintiffs’ Title VII claims boil down to

the same question: construing the record in the light most

favorable to Brown and Smith, does the record create a

genuine dispute of material fact whether Alaska and AFA

discriminated against them based on their religious beliefs?

We answer that both plaintiffs have established a triable

issue.

B. Brown Established a Genuine Dispute of Material Fact

Although Brown posted on Alaska’s World after Smith,

we begin with Brown because her case presents a more

straightforward claim of religious discrimination and

because understanding Brown’s case helps to put Smith’s

case in context. We hold that Brown produced sufficient

evidence to survive summary judgment on her Title VII and

state law claims against Alaska and AFA.

22 BROWN V. ALASKA AIRLINES, INC.

1. Brown’s Title VII Claim Against Alaska

i.

We start with the observation that Brown’s post on

Alaska’s World on its face reflected the expression of

religious belief. In the post, Brown contended that the

Equality Act would “endanger[] the Church,” “encourag[e]

suppression of religious freedom,” and “eliminat[e]

conscience protections.” During Alaska’s investigation, and

even though she claims AFA counseled her not to, Brown

defended herself by maintaining that her post was grounded

in her religious beliefs, specifically requesting a religious

accommodation. Alaska’s internal “Fact Finding Report”

confirms that Alaska understood Brown to be offering, at

least in part, a religious perspective on the Equality Act. As

Alaska’s Carmen Williams similarly testified, “if you read

her comment . . . you can tell that she’s talking about

religious concerns that she may have.” This same

understanding was confirmed by Peterson’s text to Alaska

management, in which he specifically connected Brown’s

post to religion when saying: “I wish fewer people would

struggle so much with unifying their faith with inclusivity.”

As Peterson later testified, it was “self-evident” that Brown’s

post was based on her religious convictions.

The fact that Brown was terminated after posting a

facially religious statement, by a company (and cooperating

union) that understood the religious basis for the post,

provides the initial grounding for a genuine dispute of

material fact regarding whether Alaska terminated Brown

because of her religious beliefs. See Hittle, 101 F.4th at 1012

(“Under Title VII, the plaintiff need only demonstrate[] that

race, color, religion, sex, or national origin was a motivating

factor for any employment practice, even though other

BROWN V. ALASKA AIRLINES, INC. 23

factors also motivated the [unlawful employment] practice.”

(quotations omitted)). The district court concluded that “the

only reasonable inference that one can draw is that Alaska

did not terminate Plaintiffs because of their religion, but

because of the comments they posted.” But because

Brown’s post was at least partially religious in nature and

was understood that way by Alaska and AFA, the district

court’s conclusion does not resolve the issue. See, e.g., A.G.

v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195,

1202 (9th Cir. 2016) (“We draw all justifiable factual

inferences in favor of the nonmoving party, and we reverse

an order granting summary judgment if any rational trier of

fact could resolve a material factual issue in favor of the

nonmoving party.”).

The district court additionally determined that Brown’s

post was not “grounded in religious belief at all” because

“Brown testified that her Christian faith taught her to speak

up for the vulnerable,” which the court described as not

“anything other than a universal human precept.” The court

further discounted that Alaska discriminated on the basis of

religion because Brown “was unable to point to any specific

passage in the Bible, teaching of her religious leaders, or

other religion-specific source,” and because any view

concerning the binary nature of human sexuality was

“neither unique to, nor a particular tenet of, Christianity

specifically or religion more broadly.”

This reasoning was mistaken. The role of the courts in

assessing a plaintiff’s religious beliefs is limited to

determining “whether the beliefs professed by the [plaintiff]

are sincerely held and whether they are, in [her] own scheme

of things, religious.” United States v. Seeger, 380 U.S. 163,

185 (1963); see also Masterpiece Cakeshop, Ltd. v. Colo.

C.R. Comm’n, 584 U.S. 617, 639 (2018) (“It hardly requires

24 BROWN V. ALASKA AIRLINES, INC.

restating that government has no role in deciding or even

suggesting whether the religious ground for Phillips’

conscience-based objection is legitimate or illegitimate.”);

Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993)

(“Title VII protects more than . . . practices specifically

mandated by an employee’s religion.”). It did not matter

whether Brown could support her Alaska’s World post with

chapter and verse from an authoritative religious text. See

Damiano, 140 F.4th at 1155 (“[I]t is well-established that an

individual may sincerely hold a religious belief that is not

reflected in a biblical passage or scripture.”). Nor is the

religious nature of Brown’s post undermined by the fact that

more than one religion may share in the same underlying

views, or that the beliefs expressed could be regarded as non-

religious human values. See id. (“Nor can the courts easily

distinguish between beliefs springing from religious and

secular origin.” (quoting Callahan v. Woods, 658 F.2d 679,

687 (9th Cir. 1981))).

In this case, moreover, other circumstantial evidence

beyond the evident religious grounding of Brown’s post

supports the inference that Alaska may have terminated

Brown based on her religious beliefs. Internal Alaska emails

showed the company discussing how “[e]mployees actually

do not have the right to believe that LGBTQ rights are

‘immoral.’” And the change in company policy that

Brown’s post engendered came only after the CEO

expressed concern about “[c]ensor[ing] people for having

conservative Christian views.”

The communications involving AFA Master Executive

Council President Jeffrey Peterson also support Brown’s

assertions of possible anti-religious bias. Despite AFA’s role

as Brown’s union representative, it is apparent that AFA and

Peterson in particular were heavily involved in Alaska’s

BROWN V. ALASKA AIRLINES, INC. 25

investigation of Brown, perhaps to an unprecedented degree.

Soon after Brown posted on Alaska’s World, Peterson

reported the matter to Alaska management and, critically,

wrote to various Alaska executives by text: “I wish fewer

people would struggle so much with unifying their faith with

inclusivity.” A reasonable jury could conclude that

Peterson’s comment specifically connected Brown’s post to

her religious faith, and that it did so in a disparaging way by

suggesting an infirmity in Brown’s religious beliefs. The

same is true of Peterson calling Smith a “bigot” and

“bigoted,” terms that in the context of this case could be

understood as pejorative references to religious beliefs.

The district court considered the comments of Peterson

and others at AFA “coarse and unprofessional” but

determined that none “raise[d] an inference of

discrimination on the basis of religion.” (Emphasis omitted).

Construing the facts in the light most favorable to Brown,

we conclude differently. Although some of the inappropriate

statements from AFA personnel lacked a religious

connotation, a reasonable jury could conclude that others

did. In view of AFA’s involvement in the investigatory and

disciplinary process, the arguably disparaging statements

that allude to a protected ground support an inference of

discrimination. See, e.g., Dominguez-Curry v. Nevada

Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005) (“Where

a decisionmaker makes a discriminatory remark against a

member of the plaintiff’s class, a reasonable factfinder may

conclude that discriminatory animus played a role in the

challenged decision.”); Sheehan v. Donlen Corp., 173 F.3d

1039, 1044 (7th Cir. 1999) (observing that “isolated

comments may constitute direct evidence of discrimination”

if “causally related to the discharge decision making

process”).

26 BROWN V. ALASKA AIRLINES, INC.

In addition, the fact that Brown was terminated outright,

rather than given any lesser punishment under Alaska’s

progressive discipline policy, contributes to the inference

that she was terminated because of her religious beliefs. See

Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1117 (9th

Cir. 2011) (explaining that a “triable issue of pretext” may

be raised through evidence of an “employer’s deviation from

established policy or practice” (citing Diaz v. Eagle Produce

Ltd. P’ship, 521 F.3d 1201, 1214 (9th Cir. 2008))). That

conclusion is made more plausible in this case by the fact

that Brown was an employee with an otherwise unblemished

disciplinary record who got along well with her LGBTQ

coworkers, received positive customer feedback, and

showed contrition at her internal investigatory meeting.

ii.

Alaska argues that it did not fire Brown for her religious

beliefs but because it regarded her as having violated the

company’s anti-discrimination and harassment policies.

This argument captures the genuine dispute in this case; it

does not settle it. That is because for the reasons we have

given, a reasonable jury could find Alaska’s position

pretextual. See McGinest, 360 F.3d at 1123 (explaining that

evidence “that the defendant’s explanation is unworthy of

credence is [a] form of circumstantial evidence that is

probative of intentional discrimination” (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147

(2000))). The issue is not whether the company could have

concluded that Brown violated a company policy, but

whether its assertion that she did is worthy of credence, and

whether that asserted finding was instead motivated by an

improper discriminatory reason.

BROWN V. ALASKA AIRLINES, INC. 27

This genuine dispute is underscored, and not resolved,

by the Notice of Discharge that Alaska issued to Brown,

which sets forth Alaska’s reasoning for firing Brown. That

Notice referred to Brown as having engaged in “actions that

demean and degrade, or are designed to demean or degrade,

other employees.” A reasonable juror could find that this

was an overstated or even inaccurate accounting of Brown’s

post, which does not discuss Alaska employees. Similarly,

the Notice of Discharge asserts that Brown’s post was

“hateful” and “equat[ed] LGBTQ individuals to sexual

predators.” The district court believed that Alaska’s

interpretation was “reasonable,” but a reasonable jury could

disagree and find this description overwrought or

misleading. Cf. Meriwether v. Hartop, 992 F.3d 492, 514

(6th Cir. 2021) (“[T]he university derided him and equated

his good-faith [religious] convictions with racism. An

inference of religious hostility is plausible in these

circumstances.”).

The company’s explanations in Brown’s Notice of

Discharge thus highlight the disputes of material fact and the

issues of pretext that a jury must resolve. While Alaska

claims it fired Brown for violating its anti-discrimination

policies—which would be a “legitimate nondiscriminatory

reason,” Bodett v. CoxCom, Inc., 366 F.3d 736, 740 (9th Cir.

2004)—it is incorrect to say that, “viewing the record in the

light most favorable to [Brown], any reasonable factfinder

would find that [she] violated those policies,” Damiano, 140

F.4th at 1156, or that this violation was necessarily the

driving reason for her termination.

Alaska argues that by plaintiffs’ logic, an employee

could make discriminatory and harassing statements and

escape discipline by claiming the comments were religiously

motivated. That concern is misplaced. There is no dispute

28 BROWN V. ALASKA AIRLINES, INC.

that an employer can punish discrimination and harassment,

even if it is religiously inspired. See Bodett, 366 F.3d at 740

(affirming summary judgment for employer in case of

alleged religious discrimination where plaintiff “coerc[ed]

and harass[ed] an openly gay subordinate” during numerous

one-on-one interactions); Peterson v. Hewlett-Packard Co.,

358 F.3d 599, 602, 607 (9th Cir. 2004) (affirming summary

judgment for employer in case of alleged religious

discrimination where plaintiff made religious comments that

he said he specifically “intended to be hurtful” to other

employees, and where employee “intended to demean and

harass his co-workers”). But adverse employment actions

made on the basis of the religious beliefs themselves are

improper. See Damiano, 140 F.4th at 1155. We of course do

not sit as a super-personnel board. But nor may employers

always avoid further inquiry into their employment

decisions under Title VII whenever they hold up a facially

neutral company policy as the reason for their decision,

because an employee may demonstrate that the reason was

pretextual or that unlawful discrimination otherwise

motivated the decision. See Bostock, 590 U.S. at 645 (“[I]t

is irrelevant what an employer might call its discriminatory

practice, how others might label it, or what else may

motivate it.”); Damiano, 140 F.4th at 1154–55 (explaining

that if an employer offers “a neutral explanation for its

action, . . . the plaintiff may challenge that explanation as

pretextual” (quotations omitted)).

Unlike the cases Alaska cites, moreover, this case does

not involve direct employee-to-employee harassment.

Rather, it concerns a post in response to Alaska’s own

invitation to share comments that reflect “[o]ur

differences”—in this case, as to a piece of proposed federal

legislation with which many people may disagree, including

BROWN V. ALASKA AIRLINES, INC. 29

on religious grounds. See Peterson, 358 F.3d at 605 n.5

(“[A]n employee’s opposition to a policy of his employer or

his advocacy regarding a controversial public issue invokes

different considerations than his expressive activity intended

to demean or degrade co-workers.”). Indeed, Alaska was

fully aware that some would object to the Equality Act for

religious reasons. That Alaska created a forum for employee

discussion on controversial issues, then fired Brown after

she made religious objections of the kind Alaska anticipated,

provides a further reason for regarding this case as

presenting a genuine dispute of fact on the reason for

Brown’s termination. Alaska’s World’s openness as a forum

is an important contextual feature of this case (and one that

may not recur, given Alaska’s updated rules for commenting

on Alaska’s World).

In sum, the issue is not whether Alaska can punish

employees who engage in discrimination and harassment (it

can). The issue here is instead a factual one of whether

Brown was in fact fired for engaging in discrimination or

harassment, or whether Alaska instead used the cover of its

employee policies to fire Brown because of her religious

beliefs. Construing the facts in the light most favorable to

Brown, there is a genuine dispute of material fact on this

point, and so summary judgment for Alaska was improper.

Our decision in this case is necessarily limited to its

specific facts. But we draw support from our recent decision

in Damiano, 140 F.4th at 1117. In that case, two school

officials launched a campaign questioning the school

district’s policy requiring the use of preferred pronouns on

school campuses. Id. at 1129–31. Both claimed that their

campaign was based on “their philosophical and Christian

religious beliefs, as well as their understandings of scientific

evidence.” Id. at 1128. Months later, and after an

30 BROWN V. ALASKA AIRLINES, INC.

independent investigation into the plaintiffs’ campaign, the

school board terminated plaintiffs and then reinstated them

in less desirable positions. Id. at 1135–36.

As relevant here, the plaintiffs brought Title VII claims

against the school district alleging they were discriminated

against based on their religious beliefs. Id. at 1136. The

school district responded that it had terminated the plaintiffs

for “legitimate, non-discriminatory reasons,” namely,

because after a lengthy investigation, it had concluded that

the plaintiffs’ campaign violated “multiple District policies,”

including a policy against disrupting the school

environment. Id. at 1132, 1156. Even though (unlike here)

there were no comments about the plaintiffs’ religion that

could be regarded as negative, id. at 1156 n.25, we still held

that “there [was] a genuine issue of material fact regarding

the credibility of the District’s proffered reasons for

terminating” the plaintiffs, i.e., the District’s assertedly

honest belief that the plaintiffs had violated district policies.

Id. at 1156.

That conclusion applies with equal if not greater force

here, where Brown’s post on Alaska’s World contained self-

evidently religious objections, the record contains arguably

negative comments about religious faith, Brown was fired

outright in short order, and a jury could question the

reasoning in the Notice of Discharge. 1

1

Although plaintiffs at times frame their case as one of religious

accommodation, that theory is less apt for this case. That theory

generally applies when an employee has a religious practice or obligation

that conflicts with an employment duty, and where he asks his employer

for an accommodation. See Groff, 600 U.S. at 456. What we have here

is an allegation that plaintiffs were fired because of their religious beliefs,

BROWN V. ALASKA AIRLINES, INC. 31

2. Brown’s Title VII Claim Against AFA

Brown also established a genuine dispute of material fact

over whether AFA “discriminated against” Brown,

“adversely affected h[er] status as an employee,” or “caused

or attempted to cause” Alaska to discriminate against Brown

“because of” her religious beliefs. 42 U.S.C. § 2000e-2(c);

see also EEOC Compliance Manual. Under our cases, a

union under Title VII “has an affirmative obligation to

oppose employment discrimination against its members,”

and if the union instead “acquiesce[s] or join[s] in the

Company’s discrimination practices, it too is liable to the

injured employees.” Woods v. Graphic Commc’ns, 925 F.2d

1195, 1200 (9th Cir. 1991) (quoting Bonilla v. Oakland

Scavenger Co., 697 F.2d 1297, 1304 (9th Cir. 1982)).

In this case, as we recounted above, AFA (through

Peterson) became immediately engaged in Alaska’s efforts

to investigate Brown and Smith, even though it was “rare”

for Peterson to get involved in discipline cases. In the case

of Brown (and also Smith), it appears that Peterson

affirmatively reported Brown’s post to Alaska leadership,

which was also rare for him to do. Peterson was otherwise

intimately involved in communicating with Alaska about the

company’s response to the Smith and Brown posts. And

critically, it was Peterson who used the words “bigots” and

“bigoted,” and who had expressed exasperation to Alaska

over plaintiffs’ purported inability to “unify[] their faith with

inclusivity.” It is true that Peterson informed his AFA

colleagues that the union would “represent [Smith] through

which is more naturally regarded as a straightforward discrimination

claim as opposed to a failure to accommodate. Still, Brown’s request for

a religious accommodation is relevant, as an evidentiary matter, to the

reason why Alaska may have fired her.

32 BROWN V. ALASKA AIRLINES, INC.

the grievance process fairly, in good faith, and without

discrimination,” a comment that we assume could be fairly

extended to Brown. But a jury could find Peterson’s

representation unworthy of credence given his comments

disparaging the plaintiffs and their views, including by

arguable reference to their religion.

In addition, there is a genuine dispute whether AFA’s

representation of Brown reflected bias against her because

of her religious beliefs. Brown maintains that in the lead-up

to her March 4, 2021 meeting with Alaska investigators, her

AFA representative, Terry Taylor, was dismissive of Brown’s

understanding of the Equality Act and her request for a

religious accommodation. During that meeting, Brown

maintains that “Terry said very little in my defense,” and

“[e]ven though [Brown] had told Terry that [Brown’s]

question came from [her] religious beliefs, [Terry] did not

mention that.”

The record raises factual questions about whether AFA’s

representation of Brown was colored by potential

disagreement with her religious views. As Brown was

advocating a religious defense during her investigatory

meeting, it was AFA’s Taylor who privately texted “I may

hurl” to her AFA colleague Stephanie Adams, who was also

participating in the meeting. As noted above, Adams had

written to others that Brown was unlike her own friends,

whom she described as “good women with good values and

[who] believe in equality.” Taylor had also earlier written in

private communications to other AFA colleagues that Brown

“needs to go!,” that the Smith and Brown posts on Alaska’s

World were “reprehensible,” and that someone should “put

Marli and Lacey in a burlap bag and drop them in a well.”

Although not all these comments had a clear religious

valence considered in isolation, in the context of the rest of

BROWN V. ALASKA AIRLINES, INC. 33

the record as a whole, a jury could regard them as additional

evidence that AFA personnel harbored general disagreement

with Brown’s religious beliefs, which may have affected

their representation in the disciplinary process.

Going into the March 30, 2021 grievance hearing, Brown

again claims that Taylor was dismissive of her religious

concerns, with Taylor allegedly telling Brown that her post

on Alaska’s World was “wrong and hurtful” and that Brown

“did not have religious protections because what [she] did

was wrong.” Brown further claims that Taylor tried to

dissuade her from raising religious discrimination and

accommodation at the grievance hearing. At the grievance

hearing itself, moreover, Brown claims that “Terry never

defended my comment as arising from my religious beliefs

and concerns, nor did she raise my concern that I was being

discriminated against on the basis of religion.” Taylor

instead reportedly described Brown’s comments as

“unfortunate” and “offensive,” while maintaining that

Brown had a strong employment record and was not

“beyond salvation.”

For its part, AFA maintains that it adequately defended

Brown and protected her interests, even if some AFA

employees may have disagreed with Brown’s position on the

Equality Act as a policy matter. AFA also points out that

after the grievance hearing, Brown expressed that AFA had

done a good job defending her. AFA’s account may

ultimately carry the day with the jury. But between the

comments that could be interpreted as expressing a negative

view of Brown’s faith, Taylor’s claimed unwillingness to

defend Brown on religious discrimination grounds, and

Taylor’s efforts to dissuade Brown from raising this defense,

it is genuinely disputed whether AFA attempted to cause

Brown’s termination based on her religious beliefs or

34 BROWN V. ALASKA AIRLINES, INC.

acquiesced in it. See 42 U.S.C. § 2000e-2(c); Woods, 925

F.2d at 1200.

C. Smith Established a Genuine Dispute of Material Fact

Turning now to Smith, we hold that Smith also produced

sufficient evidence to survive summary judgment on her

Title VII and state law claims against Alaska and AFA.

1. Smith’s Title VII Claim Against Alaska

Smith’s situation is different than Brown’s in several

respects. Smith, who posted on Alaska’s World before

Brown did, wrote only the following: “As a company, do you

think it’s possible to regulate morality?” Smith was known

to wear a cross necklace and therefore may have been

regarded as Christian within the company, but Smith’s

comment on Alaska’s World was not explicitly grounded in

religious belief. In her investigatory meeting, Smith also did

not describe her post in religious terms, claiming she was

raising a “philosophical” question. Smith only expressly

invoked her religious beliefs much later, after she had been

terminated. And unlike Brown, Smith had a prior

disciplinary history based on the suspension she received in

connection with her BLM petition.

But although Smith’s post did not expressly invoke

religion, “morality” is often associated with religious beliefs.

See 29 C.F.R. § 1605.1 (EEOC guidelines defining

“religious practices to include moral or ethical beliefs as to

what is right and wrong which are sincerely held with the

strength of traditional religious views”). “Moral” beliefs

about the matters addressed in the Equality Act—which

concern sexual identity and orientation—can likewise be

understood to include religious beliefs. Indeed, AFA’s

Peterson agreed that moral beliefs can be part of one’s

BROWN V. ALASKA AIRLINES, INC. 35

religious beliefs. And here, Alaska evaluated Smith’s post

after having already acknowledged internally that the

company’s support for the Equality Act “touches on

religious freedom concerns for some,” as “religious concerns

. . . were continuing to come up.” Alaska thus could have

reasonably understood that Smith was invoking beliefs about

“morality” that are commonly tied to religion, that is, moral

beliefs that are held because of religious convictions. This

context provides substantial grounding for discerning a

genuine dispute of fact.

But we ultimately need not decide how we would have

resolved Smith’s Title VII claim against Alaska if the facts

involved Smith alone. The difficulty we have is that, as

discussed above, there is a genuine dispute of material fact

whether Alaska discriminated against Brown because of her

religious beliefs. And it is apparent that Alaska considered

Smith’s situation in connection with Brown’s, working them

up together.

When Smith first posted on Alaska’s World, the airline

did not immediately remove the post but instead posted its

own reasoned response, taking Smith’s post down only later

in the day, after Brown had posted her separate, facially

religious, comment. AFA’s Peterson also lumped both

plaintiffs together in his comment that he “wish[ed] fewer

people would struggle so much with unifying their faith with

inclusivity.” As we discussed above, Peterson sent this text

to Alaska executives Williams and Littman. Further, Smith’s

investigatory meeting at Alaska took place after Brown’s

(which involved considerable airing of religious objections),

and Alaska terminated both plaintiffs on the same day.

Given the substantial overlap between Alaska’s responses to

Brown and Smith, and the fact that Alaska fully appreciated

that there would be religious objections to the Equality Act,

36 BROWN V. ALASKA AIRLINES, INC.

we do not think it can be said, as the district court concluded,

that “there is simply no evidence in the record that Alaska

knew that Smith’s comment was based on her religion when

it decided to terminate her.”

As was true for Brown, Alaska argues that it fired Smith

for the neutral reason that she violated company anti-

harassment and anti-discrimination policies. But perhaps

even more so than in the case of Brown, a reasonable jury

could find the company’s stated reasons pretextual. See

Damiano, 140 F.4th at 1156. After initially treating Smith’s

post as sufficiently legitimate to warrant a measured

response from the company on Alaska’s World, Smith’s

Notice of Discharge changed tunes and asserted that Smith’s

single-line comment, offered in the form of a question, was

“offensive” and “discriminatory,” going so far as to

characterize it as speech “that targets a group of individuals

based on their legally protected characteristics.” Once again,

a reasonable jury could conclude that these descriptions of

Smith’s post are overwrought or inaccurate, and thus

pretextual, especially given that Smith made her comment in

an open employee forum in which Alaska invited employees

to explore “our differences.”

Once again, our conclusions are necessarily limited to

the facts of Smith’s case, which are uniquely tied into

Brown’s. We hold that Smith created a triable dispute on her

Title VII claim against Alaska. 2

2

Our dissenting colleague thoughtfully disagrees on this one aspect of

our decision and would affirm summary judgment for Alaska on Smith’s

Title VII claim (while otherwise agreeing that Smith can move forward

with her claims against the union and that Brown can move forward on

all her claims). But as to Smith’s Title VII claim against Alaska, and

BROWN V. ALASKA AIRLINES, INC. 37

2. Smith’s Title VII Claim Against AFA

For substantially the same reasons as Brown, we further

hold that there is a genuine dispute of material fact whether

AFA attempted to cause Smith’s termination based on her

religious beliefs or acquiesced in it. See 42 U.S.C. § 2000e-

2(c); Woods, 925 F.2d at 1200.

As was true in the case of Brown, AFA’s Peterson was

heavily involved in Alaska’s efforts to investigate and

discipline Smith, even though this level of involvement was

rare for him. Peterson’s “struggle with faith” text extended

to Smith as well as Brown, and he repeatedly referred to

Smith as a “bigot” and “bigoted.” As we noted above,

Peterson did tell others at AFA that the union would

“represent [Smith] through the grievance process fairly, in

good faith, and without discrimination.” But a reasonable

jury could find that Peterson’s explanation was not

believable when, among other things, he was internally

saying that “Mngmt needs to send [Smith’s] bigoted ass

packing for a variety of reasons.”

Similarly, during the investigatory and grievance

process, Smith claims she felt pressured not to raise her

religious objections to the Equality Act, although it is not as

clear from the record that this claimed pressure came from

especially given Alaska’s coincident consideration of Smith’s post with

Brown’s, we think a genuine dispute of fact remains, even as a jury may

ultimately be persuaded by the dissent’s reasoning. Nor, in our view, is

it plausible that a failure to terminate Smith would have generated hostile

work environment exposure for Alaska. See Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (observing that a hostile work environment is one

“permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” (internal

citations and quotations omitted)).

38 BROWN V. ALASKA AIRLINES, INC.

AFA. However, during internal AFA deliberations over

whether to arbitrate Smith’s grievance, notes reflect Peterson

stating that Smith “[c]an be a bigot at home but not at work.”

Ultimately, although there is less evidence that AFA

attempted to dissuade Smith from raising a religious defense

than in the case of Brown, the fact remains that the union

was handling both cases at the same time, and the “bigot”

comments were specifically directed to Smith. Under these

circumstances, we believe that a jury should consider the

question of whether AFA violated Title VII in its handling of

Smith’s investigation and grievance.

III. Railway Labor Act Preemption

Having concluded that both Smith and Brown created a

triable issue on their Title VII and collateral state law claims,

we must address whether the Railway Labor Act (RLA), 45

U.S.C. § 151 et seq., preempts plaintiffs’ state law anti-

discrimination claims against the union. See Wash. Rev.

Code §§ 49.60.030, 49.60.190 (Brown); Or. Rev. Stat.

§ 659A.030(1)(c) (Smith). We hold that the RLA’s duty of

fair representation does not preempt these claims.

A. Governing Legal Framework

We begin our analysis with Title VII itself. Title VII

expressly preserves state law anti-discrimination claims and

does not preempt state law unless it “purports to require or

permit the doing of any act which would be an unlawful

employment practice under this subchapter,” 42 U.S.C.

§ 2000e-7, i.e., in cases of “actual[] conflict” with Title VII.

Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281

(1987); see also Rains v. Criterion Sys., Inc., 80 F.3d 339,

345 (9th Cir. 1996). There is no such claimed conflict here.

Instead, AFA’s argument is that the RLA’s federal duty of fair

representation impliedly preempts employees’ Title VII-

BROWN V. ALASKA AIRLINES, INC. 39

style state law claims against unions. We therefore turn in

depth to the RLA.

The RLA “authorizes employees in the railroad and

airline industries to select a union to act as their exclusive

representative for collective bargaining with their

employer.” Beckington v. Am. Airlines, Inc., 926 F.3d 595,

597 (9th Cir. 2019). The authority to act as the exclusive

bargaining representative also “carries with it ‘a correlative

duty’ . . . to ‘represent fairly the interests of all bargaining-

unit members during the negotiation, administration, and

enforcement of collective-bargaining agreements.’” Id. at

600 (emphasis omitted) (quoting Int’l Bhd. of Elec. Workers

v. Foust, 442 U.S. 42, 46–47 (1979)). This duty of fair

representation requires unions “to serve the interests of all

members without hostility or discrimination toward any, to

exercise its discretion with complete good faith and honesty,

and to avoid arbitrary conduct.” Id. (quoting Air Line Pilots

Ass’n, Int’l v. O’Neill, 499 U.S. 65, 76 (1991)). The unions’

duty of fair representation is judicially implied from the

RLA, as is the right to bring an unfair representation claim.

See Foust, 442 U.S. at 47; Beckington, 926 F.3d at 598, 600;

Krakowski v. Allied Pilots Ass’n, 973 F.3d 833, 839–40 (8th

Cir. 2020); see also Marquez v. Screen Actors Guild, Inc.,

525 U.S. 33, 44 (1998) (“When a labor organization has been

selected as the exclusive representative of the employees in

a bargaining unit, it has a duty, implied from its status under

§ 9(a) of the [National Labor Relations Act (NLRA)] as the

exclusive representative of the employees in the unit, to

represent all members fairly.”).

Because of the similarities between the RLA and the

Labor Management Relations Act (LMRA), which amended

the NLRA, courts considering RLA preemption draw on

LMRA case law. See Alaska Airlines Inc. v. Schurke, 898

40 BROWN V. ALASKA AIRLINES, INC.

F.3d 904, 913 & n.1 (9th Cir. 2018) (en banc) (citing

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994)).

And it is by now well-established that under the LMRA and

RLA, the federal duty of fair union representation has

preemptive force over some state laws. See, e.g., Vaca v.

Sipes, 386 U.S. 171, 180–82 (1967); Adkins v. Mireles, 526

F.3d 531, 539 (9th Cir. 2008); Richardson v. United

Steelworkers of Am., 864 F.2d 1162, 1165–67 (5th Cir.

1989); Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161,

1168, 1170–71 (4th Cir. 1985). 3

Our principal decision in this area is Adkins, 526 F.3d

531, an LMRA case. There, we held that “[t]he federal

statutory duty which unions owe their members to represent

them fairly also displaces state law that would impose duties

upon unions by virtue of their status as the workers’

exclusive collective bargaining representative.” Id. at 539.

To avoid preemption, we explained, “aggrieved workers

must make a showing of additional duties, if they exist,

beyond the normal incidents of the union-employee

relationship.” Id. (emphasis added). These “duties must

derive from sources other than the union’s status as its

members’ exclusive collective bargaining representative,

3

While there are different preemption doctrines stemming from the RLA

and other labor statutes, we address only the strand of RLA preemption

involving the union’s duty of fair representation. The separate RLA

preemption doctrine that “preempt[s] a state-law claim whose resolution

depends upon the meaning of a CBA” is not implicated here. Adkins,

526 F.3d at 539; see also Alaska Airlines, 898 F.3d at 913–14. That

doctrine involves claims that turn on the construction of CBAs. Alaska

Airlines, 898 F.3d at 913–14. In contrast, AFA in this case seeks

preemption of plaintiffs’ state law claims based on AFA’s status (and

corresponding duties) as plaintiffs’ exclusive collective bargaining

representative.

BROWN V. ALASKA AIRLINES, INC. 41

such as an express provision of the collective bargaining

agreement or a collateral contract.” Id. at 539–40.

Adkins involved former employees of a warehouse who

sued their union. Id. at 536. The plaintiffs raised a breach

of the federal duty of fair representation and various state

law claims, including breach of contract, breach of the

implied covenant of good faith and fair dealing, fraud, and

intentional infliction of emotional distress. Id. at 536–37,

540. The theory of the case was that the union’s secretary-

treasurer “harbored animosity” toward the plaintiffs’

warehouse after the employees burned their teamster jackets

on national television. Id. at 537. The plaintiffs alleged that

the secretary-treasurer “exacted revenge” nearly a decade

later during a union-initiated negotiation with their employer

over the terms of the CBA. Id. According to plaintiffs, the

union materially misrepresented the terms of the CBA to

them, colluded with the employer to induce employees to

accept a less favorable CBA, and failed to represent the

employees adequately in CBA negotiations. Id. at 537–38.

We held, as relevant here, that the LMRA’s duty of fair

representation impliedly preempted plaintiffs’ state law

claims. Id. at 540–42. Addressing each state law claim

individually, we concluded that the employees “made no

showing of additional duties beyond the normal incidents of

the union-employee relationship.” Id. at 540. Instead,

federal law preempted the claims because each claim

“implicates the duty of fair representation.” Id. at 536. The

plaintiffs’ emotional distress claim, for example, was

“inextricably linked to Appellee’s performance of duties

owed in their capacity as union representatives.” Id. at 541.

Thus, “[b]ecause the duty of fair representation occupies the

field of regulation of union-member relations when a union

42 BROWN V. ALASKA AIRLINES, INC.

carries out its representational functions,” the emotional

distress claim was preempted. Id. at 541–42.

B. Survey of Approaches in Other Circuits

The question in this case is whether Brown and Smith

can maintain Title VII-style state law anti-discrimination

claims against AFA. As the district court correctly

recognized, “Adkins did not involve state-law

antidiscrimination claims, and the Ninth Circuit has not

expressly addressed whether the duty of fair representation

preempts claims under a state’s antidiscrimination statute.”

Following Adkins, district courts in our circuit have divided

on the issue. Compare Thompson v. Int’l Bricklayers &

Allied Craftworkers Union, 2013 WL 3865073, at *4 (W.D.

Wash. July 24, 2013) (federal duty of fair representation

preempts state law anti-discrimination claim against union),

Wright v. N. Am. Terrazo, 2013 WL 441517, at *6 (W.D.

Wash. Feb. 5, 2013) (same), and Guidry v. Marine

Engineers, 2012 WL 646302, at *3–4 (N.D. Cal. Feb. 28,

2012) (same), with Padilla v. Pac. Bell Tel. Co., 2015 WL

728695, at *4–5 (C.D. Cal. Feb. 19, 2015) (federal duty of

fair representation does not preempt state law anti-

discrimination claim against union), Martinez v. Kaiser

Found. Hosps., 2012 WL 2598165, at *7–8 (N.D. Cal. July

5, 2012) (same), and Swain v. Dywidag-Sys. Int’l USA, Inc.,

2009 WL 1578918, at *5–6 (N.D. Cal. June 4, 2009) (same).

The Second and Eighth Circuits have directly addressed

this issue, however, and both courts held that unions’ federal

duty of fair representation does not preempt state anti-

discrimination law. In Figueroa v. Foster, 864 F.3d 222 (2d

Cir. 2017), the Second Circuit held that the duty of fair

representation does not preempt the New York State Human

Rights Law (NYSHRL) for claims of discrimination filed by

BROWN V. ALASKA AIRLINES, INC. 43

a union member against a labor organization, even when that

organization engages in discrimination while “acting in its

capacity as a collective bargaining agent.” Id. at 224. In

Figueroa, union members filed complaints against their

union with the New York state agency responsible for

administrative enforcement of the NYSHRL. Id. at 225. The

employees alleged that the union had engaged in

discrimination in violation of the NYSHRL, Title VII, and

other federal non-discrimination laws in the course of

serving as the employees’ collective bargaining agent. Id.

The union then sued the state agency in federal court seeking

to stop the state agency from investigating it on the theory

that federal law preempted the NYSHRL. Id. at 225–26.

The Second Circuit held that the federal duty of fair

union representation did not preempt the NYSHRL. Using

the rubric of conflict preemption, Figueroa concluded that

upon examination of “the textual and structural relationships

between the NLRA, Title VII, and the NYSHRL,” “[t]here

is no evidence that the NLRA’s duty of fair representation

was designed or intended to preempt state laws focused on

combatting invidious discrimination, such as the NYSHRL.”

Id. at 233.

The Second Circuit began with the observation that

unions are subject to both federal labor laws and federal anti-

discrimination laws like Title VII, and that Title VII has an

express anti-preemption provision, as we noted above. Id.

(citing 42 U.S.C. § 2000e-7). Because the NYSHRL was a

model for Title VII and “regulate[s] virtually the same

discrimination” as Title VII, Figueroa concluded that

Congress “sought to preserve[] the States’ coordinate

regulatory role” in protecting employees against

discrimination. Id. (quotations omitted).

44 BROWN V. ALASKA AIRLINES, INC.

Nor did federal labor law conflict with this, as it was not

impossible for unions to comply with both the federal duty

of fair representation and state anti-discrimination laws. Id.

at 234. State anti-discrimination law was likewise not an

obstacle to the federal duty of fair representation because

both prohibit discrimination against employees. Id. at 235.

Indeed, as the Second Circuit observed, the Supreme Court

has explained that the “statutory duty of fair representation

was developed in the 1940s in a series of cases involving

alleged racial discrimination by unions certified as exclusive

bargaining representatives under the Railway Labor Act.”

Id. (brackets omitted) (quoting Vaca, 386 U.S. at 177). Thus,

the Second Circuit reasoned, federal labor law and state anti-

discrimination law “work in tandem to protect union

members from invidious discrimination in all of its forms.”

Id.

The Eighth Circuit reached substantially the same

conclusion when examining whether the doctrine of

complete preemption allowed for removal of state law

claims to federal court. See Markham v. Wertin, 861 F.3d

748, 759 (8th Cir. 2017). In Markham, a union member

claimed that his union discriminated against him based on

his disability, in violation of Missouri law, when it failed to

ensure he could remain in an on-the-job training program.

Id. at 752. The Eighth Circuit held that the NLRA’s implied

duty of fair representation did not completely preempt the

plaintiff’s Missouri law claim. Id. at 758–59. The federal

duty did not preempt the entire field, nor did the state anti-

discrimination law “conflict with . . . or otherwise frustrate

the federal scheme.” Id. at 759.

The Tenth Circuit appears to have reached a different

conclusion, see Thomas v. Nat’l Ass’n of Letter Carriers, 225

F.3d 1149, 1158 (10th Cir. 2000), although the case involved

BROWN V. ALASKA AIRLINES, INC. 45

somewhat different claims, its analysis was relatively

abbreviated, and the decision pre-dated the Second and

Eighth Circuit decisions by some years. In Thomas, as

relevant here, a federal postal service employee sued his

union for allegedly agreeing with the Postal Service to

discharge the employee because of his religious beliefs. Id.

at 1154, 1158. The plaintiff sued his union under state law

for wrongful discharge and civil conspiracy. Id. at 1154. As

to wrongful discharge, he claimed that the union’s actions

violated “Kansas public policy protecting the free exercise

of religion.” Id. at 1158.

The Tenth Circuit held that these claims “actually

amount to a claim for breach of the duty of fair

representation.” Id. And it held that they were preempted

because the federal duty of fair representation

“encompass[es] the alleged actions of the Union” of

coordinating with the Postal Service “to discriminate against

plaintiff due to his religious belief.” Id. We note, however,

that unlike Figueroa and Markham, it does not appear that

Thomas involved claims under state anti-discrimination

statutes.

C. Application

Having surveyed the case law, we agree with the Second

and Eighth Circuits and hold that the RLA’s duty of fair

representation does not preempt plaintiffs’ Oregon and

Washington anti-discrimination claims against their union.

There is no conflict between these respective duties in

federal and state law, nor does state anti-discrimination law

stand as an obstacle to the federal duty. See Figueroa, 864

F.3d at 234–35; Markham, 861 F.3d at 759. Instead, “each

serves to reinforce the anti-discriminatory purpose of the

other,” “work[ing] in tandem to protect union members from

46 BROWN V. ALASKA AIRLINES, INC.

invidious discrimination in all of its forms.” Figueroa, 864

F.3d at 235.

We draw support for this conclusion from Title VII itself.

As we have discussed, Title VII covers labor unions. See 42

U.S.C. § 2000e-2(c). And Title VII expressly preserves state

law except in the limited circumstance when state law

“purports to require or permit the doing of any act which

would be an unlawful employment practice under this

subchapter.” Id. § 2000e-7. It would be strange for a

Congress that enacted a Title VII regime that covers unions

and preserves state anti-discrimination laws to

simultaneously, in the RLA, preempt these same state laws

as to discrimination claims against unions. See Figueroa,

864 F.3d at 233–34 (relying on Title VII’s preservation of

state law). That is especially so when the genre of

preemption at issue here is judicially implied rather than

expressly set forth in the RLA. We have understandable

reluctance in extending a court-implied doctrine of

preemption arising from a court-imputed duty of fair

representation in a way that would interfere with the

directives of Title VII. Cf. In re Volkswagen, 959 F.3d 1201,

1206 (9th Cir. 2020) (“A high threshold must be met if a state

law is to be preempted for conflicting with the purposes of a

federal Act.” (quotations omitted)); Env’t Encapsulating

Corp. v. City of New York, 855 F.2d 48, 58 (2d Cir. 1988)

(“[A] state’s police powers are not displaced by federal law

unless there is compelling evidence that this was the

manifest aim of Congress. The burden of overcoming this

presumption in favor of state law is heavy in those cases that

rely on implied preemption, which rests in turn on

inference.” (citation omitted)).

The district court reached a contrary conclusion on the

preemption question based on our decision in Adkins. While

BROWN V. ALASKA AIRLINES, INC. 47

other district courts have read Adkins differently and found

no preemption of state anti-discrimination claims, see, e.g.,

Martinez, 2012 WL 2598165, at *8, some have read it as the

district court here did, see, e.g., Wright, 2013 WL 441517, at

*5–6. Although Adkins contains some broader language that

could be construed in the abstract to extend to state anti-

discriminations claims, Adkins did not involve state law anti-

discrimination claims, as the district court acknowledged.

We thus do not believe that Adkins should be read to resolve

an issue that it did not consider.

And it bears noting that the claims in Adkins were

different than those here, which gives context to the

language in the opinion that some lower courts have perhaps

understandably overread. The state law claims in Adkins

pertained specifically to the union’s negotiation with the

employer over a CBA and alleged misrepresentations to

employees about the terms of the CBA. See 526 F.3d at 537–

38. It was in that sense that the claims were “inextricably

linked to Appellee’s performance of duties owed in their

capacity as union representatives,” and sought to directly

“impose duties upon unions by virtue of their status as the

workers’ exclusive collective bargaining representative.” Id.

at 539 (emphasis added).

Compliance with state anti-discrimination laws, by

contrast, seem to us the type of “additional duties” that

Adkins contemplated as being outside the RLA’s preemptive

reach. Id. Those laws do not seek to replicate the “normal

incidents of the union-employee relationship,” which is

more properly understood to refer to the classic work of the

union as an exclusive bargaining agent, along the lines of the

claims in Adkins itself. Id.; see also Martinez, 2012 WL

2598165, at *7 (explaining that Adkins does not direct the

preemption of state discrimination claims because “[t]he

48 BROWN V. ALASKA AIRLINES, INC.

duty not to discriminate arises from a source other than the

Union’s status as its members’ exclusive collective

bargaining representative—i.e., the duty under [California

anti-discrimination law]. While the duty of fair

representation may also provide a remedy for the alleged

discrimination, that does not mean that the right to obtain a

remedy based on an independent source is thereby negated

and displaced.”).

We do not decide in this case the full reach of the

“additional duties” that state law may impose upon unions

consistent with the RLA. It suffices for present purposes that

Title VII-style state anti-discrimination laws sufficiently fit

that bill, especially when Title VII specifically covers unions

and preserves state law absent an actual conflict. Finally,

just as the Second Circuit in Figueroa caveated, “[t]his

opinion addresses only [the union’s] claim that the duty of

fair representation” preempts Oregon and Washington anti-

discrimination law in their “entirety” when applied to

unions. 864 F.3d at 235. To the extent there could be other

“potential conflict[s]” between more specific aspects of

federal labor law and state anti-discrimination laws, we do

not address them here. Id. We hold only that Washington

and Oregon’s anti-discrimination laws “present[] no

potential conflict so incompatible with federal labor laws

that all of [their] provisions must fail.” Id.

* * *

For the foregoing reasons, we reverse the district court’s

grant of summary judgment to Alaska and AFA and its

dismissal of plaintiffs’ state law discrimination claims

against AFA. We remand for proceedings consistent with

this opinion.

REVERSED AND REMANDED.

BROWN V. ALASKA AIRLINES, INC. 49

Christen, J., concurring in part and dissenting in part:

I concur in the majority’s conclusion that both plaintiffs

demonstrated a genuine dispute of material fact that should

have prevented entry of summary judgment regarding:

(1) whether plaintiffs’ union, the AFA, 1 attempted to cause

or acquiesced in the termination of their employment on the

basis of their religious beliefs; and (2) whether Alaska

Airlines terminated Marli Brown on the basis of her religious

beliefs. I also agree that the plaintiffs’ state-law claims are

not preempted by the Railway Labor Act, 45 U.S.C. § 151 et

seq. But I dissent from my colleagues’ decision to reverse

the district court’s entry of summary judgment on Lacey

Smith’s claims against Alaska because I do not agree that

Smith demonstrated a genuine dispute of material fact about

whether Alaska terminated her because of her religion.

The fatal defects in Smith’s prima facie case obligated

the district court to grant summary judgment in Alaska’s

favor. Most notably, Alaska would have had to be

clairvoyant to know that Smith considered the statement she

posted on the company’s internal website to be an expression

of her faith because the statement itself gave no hint that it

was religiously motivated and Smith did not claim that it was

an expression of her religion when Alaska interviewed her

during its investigation.

Smith did not argue that Alaska’s termination decision

constituted religious discrimination until a month after she

was fired. See Williams v. Legacy Health, 174 F.4th 1201,

1205 (9th Cir. 2026) (explaining that to establish a Title VII

religious discrimination claim “[t]he employer must have

been informed of the [religious] belief” (citation modified)).

1

Association of Flight Attendants-CWA AFL-CIO.

50 BROWN V. ALASKA AIRLINES, INC.

And as our precedent makes clear, Alaska had ample reason

to terminate Smith even after she gave notice that she

considered the statement to be religiously motivated because

an employee may not rely on her religious beliefs as a shield

if her conduct or actions otherwise constitute harassment of

other employees in the workplace. See Peterson v. Hewlett-

Packard Co., 358 F.3d 599, 607–08 (9th Cir. 2004) (holding

that employers “need not accept the burdens that would

result from allowing actions that demean or degrade, or are

designed to demean or degrade, members of its workforce”).

The majority suggests a jury could decide that Alaska’s

decision to fire Smith was motivated by hostility toward her

faith. In part, it reaches this conclusion by drawing an

adverse inference from the fact that Alaska responded to

Smith’s online comment before terminating her for violating

its anti-discrimination and anti-harassment policies. But

given Smith’s coworkers’ reactions, it was appropriate for

Alaska to promptly reiterate its commitment to a workplace

free of discrimination and harassment, and refrain from

taking disciplinary measures until it completed its

investigation and considered Smith’s explanation. No

adverse inference may be fairly drawn from Alaska’s

decision to take down Smith’s post because her comment

exposed Alaska to claims that it tolerated a hostile work

environment. See Matthews v. Walmart, 417 F. App’x 552,

554 (7th Cir. 2011). This is especially true considering

Smith’s persistent history of noncompliance with Alaska’s

anti-discrimination and anti-harassment policies.

I would affirm the district court’s order granting

summary judgment in Alaska’s favor on Smith’s Title VII

claim and the entry of summary judgment on the

corresponding state-law anti-discrimination claims.

Accordingly, I respectfully dissent from the majority’s

BROWN V. ALASKA AIRLINES, INC. 51

reversal of the district court’s summary judgment ruling on

Smith’s intentional discrimination claims against Alaska.

I.

The order in which the events unfolded here matters, as

does the unique environment in which Alaska’s in-flight

employees work. Alaska explained that its in-flight

employees function as a team to navigate emergency

situations while in the air and far from outside help. To

ensure passenger and employee safety, flight attendants must

trust that they will have each other’s back when the time

comes to handle an emergency situation. In keeping with

this goal, Alaska has a “zero-tolerance” policy for

harassment and discrimination.

In August 2020, Alaska Airlines announced a series of

racial justice commitments, including a statement in support

of the Black Lives Matter movement. In response, Lacey

Smith, a flight attendant for Alaska, emailed Alaska’s CEO

as well as her supervisor with concerns that Alaska was

taking a political stance. Alaska’s CEO responded that

Alaska was “trying to stay out of the political aspect of this,”

and Smith’s supervisor hand-delivered a flyer to Smith

explaining that Alaska was not supporting an “anti-police-

officer” stance or staking a political position, but was

supporting an “international human rights movement”

acknowledging the “discrimination Black people face every

day.” Smith’s supervisor encouraged her to reach out if she

had any questions or remaining concerns. Smith did not

discuss her concerns further with her supervisor.

A few days after receiving these responses, Smith wrote

and circulated a petition titled “Depoliticizing Alaska

Airlines.” Smith’s petition described the Black Lives Matter

52 BROWN V. ALASKA AIRLINES, INC.

organization as having “political ties into Marxist

communism through its self-proclaimed Marxist leaders.”

The petition included the statement that “[b]y supporting

[the Black Lives Matter movement] the company

automatically places itself in direct support of a specific

political party/ideology and creates bias.” The petition

accused Alaska of hostility toward the police and military

and stated that Alaska approved “rioting and upheaval.”

Smith posted the petition on a social media website,

circulated it among her coworkers, and encouraged them to

share it with others. After an investigation, Alaska

concluded that Smith’s campaign constituted harassment

and other Alaska employees reported concerns about their

ability to “work[] safely” with her. In a Notice of Discipline,

Alaska further explained that Smith ignored “clear guidance

from the Company that its support of Black Lives Matter

relates entirely to the human rights movement and not the

political organization” and instead published a petition that

“mischaracterize[d]” Alaska’s support of the movement.

The Notice explained that Smith failed to correct her

knowing mischaracterization of Alaska’s position and that

her petition was still active. Smith did not claim that her

Black Lives Matter petition was religiously motivated.

Alaska suspended Smith for thirty days, the longest

suspension that the AFA union had witnessed for an Alaska

employee, and placed her on probation for eighteen months.

Alaska expressly told Smith that any misconduct in the

ensuing eighteen months could result in termination.

Just six months later, Alaska posted an article on its

company website that expressed the company’s support for

the Equality Act. The article described the Equality Act as

seeking to “amend existing civil rights laws protecting

individuals from discrimination based on race, color,

BROWN V. ALASKA AIRLINES, INC. 53

national origin, sex, disability and religion” and to “add

clear, consistent protections to prohibit discrimination on the

basis of sexual orientation and gender identity.” Minutes

later, Smith commented, “As a company, do you think it’s

possible to regulate morality?” The internal company

website where this exchange occurred is accessible by

26,000 Alaska employees and retirees. Alaska posted a

response to Smith’s comment, also visible to all of its

employees, within a few hours:

Supporting the Equality Act is not about

regulating morality. It’s about supporting

laws that allow our LGBTQ+ employees and

guests, no matter what state they live in or fly

to, to be protected against discrimination.

Our values are our guide, and we strongly

believe that doing the right thing and being

kind-hearted require us to support this act. As

we said above, we aren’t the kind of company

that stands by and watches—we’re going to

use our voice and be a leader on these issues.

We also expect our employees to live by these

same values. Our differences are to be

respected. As stated in our People Policies,

harassment and discrimination will not be

tolerated.

Throughout the day, Alaska received feedback

confirming that other employees were alarmed by Smith’s

comment. AFA specifically received feedback from multiple

flight attendants concerning Smith’s comment, some of

whom “questioned how they could safely fly with her.” AFA

relayed to Alaska that it was receiving similar comments.

54 BROWN V. ALASKA AIRLINES, INC.

Marci Brown, also an Alaska flight attendant, posted a

comment to Alaska’s Equality Act post more than eleven

hours later. Unlike Smith’s, Brown’s comment expressly

invoked her religious beliefs. More comments from

coworkers negatively responding to Brown’s comment

followed, and Alaska decided to delete both flight

attendants’ posts.

At the time Smith made her online comment, she was

still on probationary status as a result of the Black Lives

Matter petition she had circulated. Rather than immediately

terminating Smith, Alaska opened a second investigation

and interviewed Smith about her Equality Act post. Smith

said nothing to suggest that her comment was an expression

of religion. Instead, she characterized the post as a

“philosophical question.” Alaska terminated Smith on

March 19, 2021. In its notice of termination, Alaska stated:

This was not the first time [Smith] engaged

in conduct that was contrary to [Alaska’s]

Company values and had a significant

negative impact on other employees. . . . Like

[Smith’s] conduct in August 2020, [Smith’s]

comment here created a negative impact on

other employees, was made in a public

forum, promulgated divisiveness, and

undermined the Company’s efforts to create

an inclusive work environment free of

harassment and discrimination.

The notice went on to explain that Smith “failed to learn

from the August 2020 incident,” and concluded that Smith’s

post was discriminatory and did not align with Alaska’s

values. More than a month after her termination, Smith

BROWN V. ALASKA AIRLINES, INC. 55

claimed for the first time that her online statement reflected

her religious beliefs.

II.

A.

Title VII precludes employers from discharging

employees on account of their “race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2(a). “Religion” is

defined as “all aspects of religious observance and practice,

as well as belief, unless an employer demonstrates that he is

unable to reasonably accommodate” a “religious observance

or practice without undue hardship on the conduct of the

employer’s business.” Id. § 2000e(j). To establish a Title

VII violation, a plaintiff may either “produce direct or

circumstantial evidence demonstrating that a discriminatory

reason more likely than not motivated the employer” or “rely

on the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).” Damiano v. Grants

Pass Sch. Dist. No. 7, 140 F.4th 1117, 1154 (9th Cir. 2025)

(citation modified). The majority concludes that Smith

defeats summary judgment under either theory. In my view,

this decision cannot be squared with the facts of this case or

with controlling precedent.

B.

Smith did not provide direct or circumstantial evidence

demonstrating that her religion was more likely than not a

motivating factor in Alaska’s decision to terminate her. As

the majority acknowledges, the question she posed on

Alaska’s internal website did not make any mention of

religion at all. In its entirety, Smith’s comment read: “As a

company, do you think it’s possible to regulate morality?”

During Alaska’s investigation, Smith insisted that she was

56 BROWN V. ALASKA AIRLINES, INC.

merely posing a philosophical question rather than asserting

to the investigators that her Christian beliefs caused her to

conclude that the Equality Act was immoral. The majority

posits that “‘morality’ is often associated with religious

beliefs,” but references to morality are not inherently

religious. Maj. Op. at 34. People of many faiths, including

those with no religious affiliation, make moral judgments.

There is no record evidence that Alaska knew or even

suspected Smith’s comment was religiously motivated;

when Alaska interviewed her, Smith did not mention

religion. 2

The majority suggests that because Smith sometimes

wore a cross, Alaska could have inferred that she is

Christian. Fair enough, but the question is whether there is

evidence of discrimination, i.e., whether Alaska fired Smith

because of her religion. See Bostock v. Clayton Cty., 590

U.S. 644, 656–57 (2020). It is blackletter law that this

requires more than merely demonstrating the employer’s

knowledge of the employee’s protected classification. Hittle

v. City of Stockton, 101 F.4th 1000, 1014 (9th Cir. 2024).

Even if Smith had showed that the decision-maker at Alaska

knew she was Christian (she did not), knowledge of Smith’s

faith does not warrant the inference that her religious beliefs

prompted her online comment regarding the Equality Act, or

that Alaska’s decision to terminate her had anything to do

with religion. To be sure, Smith’s online comment allowed

2

During the pendency of this litigation, Smith explained that she did not

volunteer that her comment stemmed from her religious beliefs because

she feared religious discrimination. This explanation might be relevant

to a hostile work environment claim, but it does not change Smith’s

obligation to raise an issue of fact about what Alaska knew when it

decided to fire her. On appeal, Smith waived her retaliation, disparate

impact, and hostile work environment claims.

BROWN V. ALASKA AIRLINES, INC. 57

an inference that she was hostile toward the company’s

support of the Equality Act, but it gave no hint that Smith’s

disapproval of Alaska’s stance was a reflection of her

religious views. Cf. Robinson v. Adams, 847 F.2d 1315, 1316

(9th Cir. 1987) (“An employer cannot intentionally

discriminate against a job applicant based on race unless the

employer knows the applicant’s race.”); Raytheon Co. v.

Hernandez, 540 U.S. 44, 54 n.7 (2003) (“If [the decision-

maker] were truly unaware that such a disability existed, it

would be impossible for her hiring decision to have been

based, even in part, on respondent’s disability.”). As the

district court recognized, some Christians support LGBTQ

rights, and some do not.

The majority decides Smith established a prima facie

disparate treatment case by conjoining her termination with

Brown’s because the two were fired on the same day. From

this temporal proximity, my colleagues curiously conclude

that Smith’s case was “uniquely tied into Brown’s.” Maj.

Op. at 36. This is wrong for several reasons. First, Brown’s

statement was overtly religious in nature, unlike Smith’s.

Second, Smith posted her comment more than eleven hours

before Brown posted hers, so there can be no suggestion that

Smith’s statement would have been understood as chiming

in with the religious views that Brown expressed. Third,

during Brown’s pre-termination interview, Brown explicitly

articulated that her online post was an expression of her

religious beliefs and, as explained, Smith said nothing

comparable. Fourth, though I agree that the extremely

disparaging statements by some of the union’s

representatives cannot be excused, neither may they be

attributed to Alaska’s decision-maker, and nothing in the

record supports the suggestion that the union made the

decision to terminate Smith. See Cornwell v. Electra Cent.

58 BROWN V. ALASKA AIRLINES, INC.

Credit Union, 439 F.3d 1018, 1030 (9th Cir. 2006)

(explaining that a plaintiff must put forth “specific” and

“substantial” circumstantial evidence to create a triable issue

with respect to whether the employer intended to

discriminate on the basis of a protected classification).

Finally, and perhaps most glaringly, Smith was still on

probation for the Black Lives Matter petition she circulated,

and that episode culminated in Alaska’s express warning that

another violation of the company’s anti-harassment policy

could result in her termination. Smith disregarded the

express warning Alaska gave her after that incident,

repeating the type of comment that concerned her coworkers

in 2020. For these reasons, the backdrop to which Smith’s

termination was “uniquely tied” was not Brown’s

termination, it was Smith’s own probationary status for

violating Alaska’s anti-harassment policy just six months

earlier. In light of the sequence in which these facts unfolded

and the concerns expressed by Smith’s coworkers, it is not

surprising that Alaska decided to end Smith’s employment

rather than continue to accept the risk that her conduct would

prompt other employees to claim that Alaska tolerated a

hostile work environment.

Even if Smith had established a prima facie case under

McDonnell Douglas, Alaska articulated legitimate,

nondiscriminatory reasons for terminating her. The law does

not require more. To rebut the presumption of

discrimination that arises when a plaintiff establishes a prima

facie case, “the defendant must clearly set forth . . . the

reasons” for terminating the plaintiff, and the explanation

“must be legally sufficient to justify a judgment for the

defendant.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 255 (1981).

BROWN V. ALASKA AIRLINES, INC. 59

Alaska terminated Smith because her comment, which

was posted in view of Alaska’s entire workforce,

“undermine[d] Alaska’s stance” and “question[ed] the

Company’s support for the rights of all people,” which

Alaska considered a company value. Alaska reasonably

deemed the comment to violate its anti-discrimination and

anti-harassment policies as well as the terms of Smith’s

probation. It is settled law that Title VII allows employers

to discipline employees for discriminatory conduct, even

where such conduct is religiously motivated; indeed, Title

VII’s prohibition on workplace discrimination requires

employers to take corrective action in some circumstances.

See Peterson, 358 F.3d at 601–02, 607 (considering a case in

which an employee referred to gay individuals as “evil” and

explaining that “an employer need not accommodate an

employee’s religious beliefs if doing so would result in

discrimination against his coworkers or deprive them of

contractual or other statutory rights”); Bodett v. CoxCom,

Inc., 366 F.3d 736, 740–41, 746 (9th Cir. 2004) (affirming

summary judgment against a plaintiff who claimed she was

religiously discriminated against after she was terminated

for telling an LGBTQ coworker that “homosexuality is

wrong” and “a sin”).

Alaska’s decision to terminate Smith was especially

reasonable given the unique circumstances in which its in-

flight employees work. Alaska’s flight attendants operate as

a team to navigate stressful and potentially life-threatening

circumstances in tight quarters, far from help. This type of

work setting requires that Alaska’s employees trust each

other and back-up their coworkers. The ability to work

together in stressful or dangerous circumstances starts with

mutual respect. Alaska made clear that it would take very

60 BROWN V. ALASKA AIRLINES, INC.

seriously employee conduct that causes other staff to

question whether they can work safely with their coworkers.

Once an employer offers “a neutral explanation for its

action, . . . the plaintiff may challenge that explanation as

pretextual.” Damiano, 140 F.4th at 1154–55 (quoting

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589

U.S. 327, 340 (2020)) (citation modified). “The ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” Burdine, 450 U.S. at 253.

The majority concludes that a reasonable juror could find

Alaska’s stated reasons for terminating Smith pretextual

because Alaska seemingly viewed Smith’s post as

sufficiently legitimate to warrant a response, but later

characterized the comment as “discriminatory.” Maj. Op. at

36. In the majority’s view, Alaska’s response was potentially

“overwrought or inaccurate.” Maj. Op. at 36. But as even

the majority recognizes, our court does not “sit as a super-

personnel department that reexamines . . . the propriety of”

employers’ business decisions. Stewart v. Henderson, 207

F.3d 374, 378 (7th Cir. 2000). And here, the record

unambiguously shows that Smith’s comment was broadcast

to all 26,000 current and former Alaska employees. The day

after Smith posted her comment, Alaska continued to receive

feedback from other employees that raised concerns about

workplace harassment, and the union reported that it

received comments from multiple flight attendants who

“questioned how they could safely fly with her.” It was

reasonable for Alaska to reiterate its mission and values in a

message visible to the employees who received Smith’s

comment and then, after receiving still more expressions of

concern from employees, to delete Smith’s comment and

commence an investigation. After taking time to interview

BROWN V. ALASKA AIRLINES, INC. 61

Smith, Alaska concluded that Smith’s comment and her

explanation for it warranted corrective action. Cf. Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997)

(holding that even the presence of “shifting” justifications

for an adverse action is not sufficient to defeat summary

judgment when the justifications “are not incompatible”).

The majority’s disagreement with Alaska’s

characterization of Smith’s comment is insufficient to defeat

summary judgment. Maj. Op. at 36; see Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (noting

that in considering an employer’s proffered reason for an

adverse employment action, “courts only require that an

employer honestly believed its reason for its actions, even if

its reason is foolish or trivial or even baseless” (citation

modified)). Pursuant to Alaska’s “zero-tolerance” anti-

harassment policy, the airline could have gone straight to

termination for the Black Lives Matter incident in 2020. The

fact that Alaska chose to issue Smith a lesser punishment in

the form of suspension is compelling support for the

conclusion that its final decision to terminate her

employment sixth months later, for similar misconduct, was

not a pretext for religious discrimination but rather a

decision prompted by Smith’s failure to abide by Alaska’s

directive to comply with its anti-discrimination and anti-

harassment policies. See Staunch v. Continental Airlines,

511 F.3d 625, 632 (6th Cir. 2008) (explaining the fact that an

employer gave a termination warning “is strong evidence

that its final decision to terminate [plaintiff’s] employment”

after another violation of company policy was not

pretextual).

62 BROWN V. ALASKA AIRLINES, INC.

III.

For the reasons explained, I would affirm the district

court’s order granting Alaska’s motion for summary

judgment as to Smith’s Title VII and corresponding state-law

anti-discrimination claims. Accordingly, I respectfully

dissent from the court’s reversal of the district court’s

summary judgment ruling on Smith’s intentional

discrimination claims against Alaska.