Labor & Employment Law Daily Wrap Up, DISCRIMINATION—S.D. Cal.: United defeats several claims of fired 63-year-old flight attendant with AIDS, (May 20, 2026)

By Jason Albright, J.D.

His diagnosis “sometimes required him to take sick leave for worsening health or medical appointments.”

United Airlines is entitled to dismissal in part of a lawsuit brough by a 63-year-old flight attendant with AIDS who took approved FMLA leave to manage his condition and was fired in June 2023, allegedly for accumulating too many attendance “points,” after he called off work due to illness, a federal district court in California found. The court dismissed the flight attendant’s claims of age discrimination in violation of the California Fair Employment and Housing Act (FEHA); harassment in violation of the FEHA; negligent hiring, supervision, and retention; retaliation in violation of California Labor Code § 1102.5; and intentional infliction of emotional distress. The motion to dismiss in part did not include his disability discrimination, reasonable accommodation, or interactive process claims (Panzl v. United Airlines, Inc., No. 3:25-cv-02046-WQH-DEB (S.D. Cal. May 18, 2026)).

Flight attendant. The plaintiff, according to the court, is a “63-year-old Caucasian male” who was employed as a flight attendant by United Airlines since October 7, 1990.

AIDS diagnosis and disclosure. He was diagnosed with AIDS in or around May 2022, which “impacted major life activities.” His illness “caused symptoms including fatigue, diarrhea, sleep disruption, and vertigo,” which he “brought to the attention of various supervisors over the course of his employment.”

Sick leave. His AIDS diagnosis “sometimes required him to take sick leave for worsening health or medical appointments.” He alleged that, although he “always provided doctor[’s] notes to justify his absences... he was consistently penalized [] for his absences.”

Intermittent FMLA leave. Beginning around 2006, the employee was approved for intermittent FMLA leave and allegedly complied with United’s requirement that he submit medical certifications twice per year “on a near yearly basis” throughout the remainder of his employment. He alleged that he “utilized leave reasonably regularly with those certifications.”

United’s “points” system. United employs an attendance point system that the flight attendant alleged “penalizes individuals by applying attendance points for absences,” including those caused by legitimate illness or disability. If an employee accumulates 30 points, the employee is subject to termination.

Alleged disproportionate impacts. This points system, he alleged, “disproportionately impacts” people with chronic or serious medical conditions because those individuals are more likely to accumulate points. United’s management allegedly knew about the flight attendant’s “history of using FMLA leave for medical illness” and his “need to take more time off than similarly situated non-disabled employees” because he was regularly required to file medical documentation to continue using FMLA leave.

Alleged harassment. “Despite knowing of Plaintiff’s disabilities,” he alleged, United’s managers and HR staff allegedly “increasingly harassed and repeatedly penalized [Plaintiff] for disability-related absences, issuing discriminatory write-ups, making warnings, and applying attendance points to his record.” In turn, “Over the years, [Plaintiff] expressed opposition to the way he was treated for needing to take sick days.”

Fired. In the period leading up to his termination, the United allegedly “stopped issuing attendance point warnings and abruptly shifted how his absences were addressed.” On or around July 2023, he “was suddenly notified his employment was being terminated,” and United’s stated reason was that he “hit the 30 point limit when he called off work on June 22, 2023 due to illness.” The flight attendant allegedly called in prior to his shift on June 22 and “was notified he had been removed from the schedule[].”

Finally, he alleged that he “could have been easily accommodated by simply slotting in another flight attendant to take his shift.”

Lawsuit. The employee sued, asserting claims of (1) FEHA disability and age discrimination in violation (2) FEHA hostile work environment harassment on the bases of disability and age; (3) FEHA retaliation; (4) failure to provide reasonable accommodation under the FEHA; (5) failure to engage in the interactive process under the FEHA; (6) failure to prevent discrimination, harassment, or retaliation in violation of the FEHA; (7) negligent hiring, supervision, and retention; (8) wrongful termination of employment in violation of public policy; (9) whistleblower retaliation in violation of Cal. Labor Code § 1102.5; and (10) intentional infliction of emotional distress (IIED).

Motion to dismiss in part. At this juncture, United moved to dismiss only his claims of age discrimination, harassment, negligent hiring and supervision, whistleblower retaliation, and IIED.

Age discrimination. The court first dismissed his FEHA age discrimination claim. Although he alleged that is 63 years old and had a “long career for more than three decades” at United, the court observed, “‘[T]he mere fact’ that Plaintiff is above 40 years of age ‘does not give rise to the inference’ that United’s alleged adverse employment actions were ‘motivated by a desire to discriminate on the basis of [age].’” Here, nothing alleged in the employee’s first amended complaint (FAC) suggested that United had a discriminatory motive related to his age—as opposed to his disability—in any of its personnel actions.

FEHA harassment. The flight attendant’s FEHA harassment claim was likewise dismissed. He alleged that “his supervisors repeatedly applied attendance points and issued warnings for absences tied to his AIDS-related medical needs and approved medical leave,” “despite knowing of his alleged disability,” but United contended that his allegations described “routine personnel actions,” which do not rise to the level of harassment under the FEHA. Under California precedent, “harassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment.” Roby v. McKesson Corp., 47 Cal. 4th 686, 708 (Cal. 2009), as modified (Feb. 10, 2010). And here, the FAC failed to allege specific facts detailing a “situation[] in which the social environment of the workplace bec[ame] intolerable because the harassment... communicate[d] an offensive message” to the flight attendant. Id. at 706.

Negligence. The employee’s claim of negligent hiring, supervision, and retention fared similarly. He argued that he sufficiently alleged that “supervisory and HR personnel knew or should have known, through years of twice-annual FMLA certifications and disclosures of AIDS-related symptoms,” about his AIDS diagnosis. Unpersuaded, the court observed that the real issue here was whether United’s supervisors had “prior knowledge of” or should have known that the staff who allegedly mistreated him had a “propensity” to discriminate, harass, or retaliate against him, and his FAC was devoid of facts to support that inference.

Retaliation. Next, the flight attendant’s California Labor Code retaliation claim was dismissed. To establish a prima facie case of whistleblower retaliation under California Labor Code § 1102.5, a plaintiff must show that (1) the plaintiff engaged in a protected activity, (2) the plaintiff’s employer subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two. Here, the employee failed to adequately allege either a protected disclosure or causation.

Protected disclosures under Section 1102.5 “encompass[] reports or complaints of a violation made to an employer,” but the disclosing employee must have “reasonable cause to believe that the information discloses a violation” of law. The employee need not cite in the disclosure a specific that the employee believes the employer is violating, but the employee “must be able to point to some legal foundation for his suspicion” of unlawful activity. Here, the flight attendant alleged that, “[o]ver the years, [he] expressed opposition to the way he was treated for needing to take sick days.” He also alleged that he “raised complaints about violations of the FEHA, California Constitution, and Government Code Section 12900 et seq. while he worked for [Defendant].” These allegations, the court found, were too conclusory and vague to adequately allege that he engaged in a protected disclosure under Section 1105.2.

Even assuming he did allege a protected disclosure, the flight attendant also failed to adequately allege causation. He did not identify to whom he “expressed opposition” regarding his treatment, and he thus failed to adequately allege that United was aware of his complaints, an “essential component” of establishing the required causal link between the protected disclosures and the adverse employment action.

IIED. Finally, the court dismissed his IIED claim. The flight attendant argued that United “repeatedly penalized disability-related absences, abruptly stopped warnings, and fired him,” which “caused severe emotional distress.” He also contended that the facts giving rise to his disability discrimination claim satisfied the “extreme and outrageous conduct” element of his IIED claim. Unpersuaded, the court observed that “[p]ersonnel management decisions alone—even those made for discriminatory reasons—are insufficient to form the basis of an IIED claim.” Here, viewing his allegations in the light most favorable to him, the court concluded that the flight attendant’s allegations concerned personnel management decisions. Even assuming that he plausibly alleged a discriminatory motive behind his termination, he failed to allege facts that would support a reasonable inference of “extreme and outrageous conduct” by United.

The court accordingly granted the airline’s motion to partially dismiss the flight attendant’s FAC, with leave to amend to correct the identified deficiencies.

The case is No. 3:25-cv-02046-WQH-DEB.

Judge: Hayes, W.

Attorneys: Alex Karl Dibona (Shegerian & Associates) for Timothy Panzl. Brittney Shea Slack (Wilson Turner Kosmo) for United Airlines, Inc.

Companies: United Airlines, Inc.

Cases: AgeDiscrimination DisabilityDiscrimination Discrimination Whistleblowers Retaliation TortClaims Discharge CaliforniaNews