Hanin Atalla and Erik Lund met in the “early fall” of 2017, during her last year of pharmacy school, when she did a six-week “business administrative rotation with Rite Aid.” The rotation entailed Atalla “shadow[ing]” Lund. Lund was Atalla’s “preceptor” for the rotation. Atalla did six other rotations besides the Rite Aid rotation as part of her pharmacy school requirements. When Atalla’s rotation with Rite Aid ended, Atalla celebrated at a dinner with Lund and his wife. Atalla stayed in close touch with Lund thereafter.

Starting from the time Atalla did her six-week rotation with Lund, she and Lund developed a social relationship. Over time, they became close friends. They were friends before Atalla started working at Rite Aid. Atalla also viewed Lund as a mentor.

Atalla and her husband celebrated a Friendsgiving at the home of Lund and his wife in 2017. Atalla and Lund texted frequently; they joked with one another in texts; they texted about personal matters; they texted about a wide range of things; and they sent multimedia messages to one another as well. They would go out to lunch together.

Atalla’s friendship with Lund continued after Atalla began working at Rite Aid in March 2018. They continued to text frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media, drinking and alcohol, birthdays, fashion, and work issues. They exchanged hundreds of texts. They would go out for coffee and meet up for lunch. In December 2018, Lund and his wife joined Atalla and her husband (and another couple) for dinner to celebrate Atalla’s birthday.

One month after Atalla and Lund dined together in celebration of her birthday, they engaged in their final text exchange, also on their personal cell phones. On January 4, 2019, a Friday night, Lund texted Atalla a “Live Photo” of him engaging in a sexual act by himself while he was drunk. The next morning, Lund texted Atalla, “Wanted to apologize I was embarrassing drunk last night.”

On Sunday, January 6, 2019, Atalla called her training pharmacist and said she was not feeling well and would not be able to work that week. On January 10, 2019, Atalla’s counsel, John Waterman sent a letter to Rite Aid asserting a claim of sexual harassment. Atalla’s counsel also advised that Atalla “will not be returning to work at Rite Aid.” Atalla’s counsel said he had already obtained a right-to-sue letter and would be filing a complaint that coming Monday, January 15, 2019.

Rite Aid interviewed Lund who admitted what he had done, and investigated whether there were any other complaints of sexual harassment against Lund; the investigation revealed none.

Rite Aid made the decision to terminate Lund on Monday, January 14, 2019. That same day, their counsel emailed a letter to Atalla’s counsel advising of Lund’s termination and assuring them, “Ms. Atalla remains an active employee in our system, and she is welcome to return to work.”

Rite aid concluded that Atalla had no intention of returning to work at Rite Aid and, rather, had decided to resign and pursue litigation. Accordingly, on January 21, 2019, Atalla’s status in Rite Aid’s system was changed to “resignation with the possibility of re-hire.” On January 22, 2019, Rite Aid sent Atalla a separation notice, along with her vacation payout.

Atalla filed a sexual harassment, failure to prevent sexual harassment, wrongful constructive termination, discrimination, and retaliation action against her former employer, Rite Aid Corporation and Thrifty Payless, Inc., dba Rite Aid.

The Rite Aid defendants brought a summary judgment motion. Rite Aid attached over 500 pages filled with text messages (along with images and photographs) exchanged between Atalla and Lund.

The trial court granted summary judgment noting that the “question is whether the harassment arose from a completely private relationship unconnected with the employment. I think defendants have met their burden of showing that this is the case. The Court of Appeal affirmed in the published case of Atalla v. Rite Aid Corporation -F082794 (March 2023).

The underlying goal of FEHA in this context is to provide effective measures to prevent workplace  harassment. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, at pp. 1046-1047.)  “‘Under the FEHA … there is a need to determine whether sexual conduct that occurs off the worksite or after working hours constitutes an “unlawful employment practice” within the ambit of the act.’ “ (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1422, quoting § 12940 (italics added).)”

“We affirm the trial court’s conclusion that Atalla has not raised a triable issue of material fact with respect to the required showing that Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, Lund and Atalla had ‘an extensive texting relationship’ and their January 4, 2019 late-night text exchange, which ‘occurred outside the workplace and outside of work hours,’ was ‘spawned from a personal exchange that arose from a friendship between [them].’ Summary judgment is therefore proper as to Atalla’s sexual harassment claims.”