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Firing Over Graphic Anti-Abortion Message Constitutional

Feb. 4, 2019, 4:06 PM

Southwest Airlines Co. didn’t violate a former employee’s constitutional rights when it fired her in part for sending graphic anti-abortion messages to a union leader, a Texas federal court ruled Feb. 1.

The court allowed the employee’s claims based on retaliation under the Railway Labor Act and religious discrimination under Title VII of the Civil Rights Act of 1964 to continue, however.

Former Southwest flight attendant Charlene Carter was a nonmember objector to Transport Workers Union of America Local 556, and regularly posted in an open Southwest flight attendant Facebook group in opposition to the union’s leadership and policies. After learning that the union’s president participated in the 2017 Women’s March on Washington, Carter sent her critical private messages that included anti-union statements and graphic anti-abortion pictures.

Southwest fired Carter for disparaging its employees and violating its bullying policy, and said that her conduct may also violate its anti-harassment policy. The union represented Carter during the grievance process and negotiated for Southwest to rehire her. Carter rejected the offer, and an arbitrator ruled for Southwest.

Carter’s constitutional claims failed because neither Southwest nor the union is a government actor, said Judge Karen Gren Scholer of the U.S. District Court for the Northern District of Texas. The court also dismissed Carter’s RLA free speech claims because they required anti-union animus by Southwest. The fair representation claims also failed because there was no proof that the union’s conduct was irrational.

But Carter’s RLA retaliation claims could continue because the firing may have been motivated by Carter’s protected anti-union speech. The court also allowed Carter’s claim against the union for religious discrimination under Title VII to continue because the union had not challenged it.

The court also rejected Southwest’s arguments to dismiss because the claims were precluded by the arbitration or minor disputes that should have been brought under the RLA’s dispute resolution process.

Jenkins & Watkins PC and the National Right to Work Legal Defense Foundation represented Carter. Reed Smith LLP and Polsinelli PC represented Southwest. Cloutman & Greenfield PLLC and Cloutman & Cloutman LLP represented the union.

The case is Carter v. Transp. Workers Union of Am., N.D. Tex., No. 3:17-CV-2278, 2/1/19.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com