Selective Enforcement and Disparate Treatment
Evidence in the record demonstrates that Katherine Lense engaged in conduct materially
similar to, and in some instances more severe than, the conduct for which FA Blockhus
was accussed and terminated. Specifically, sworn testimony and documented communications
confirm that FA Lense sent sexually charged, hostile, and threatening messages to FA Blockhus while he was an active employee.
Unlike the allegations asserted against FA Blockhus, however, FA Lense’s communications were neither meaningfully investigated nor subjected to disciplinary review under United’s Working Together Guidelines or Harassment and Discrimination Policy. There is no evidence that Corporate Security conducted authentication, credibility analysis, or policy evaluation of her conduct comparable to that applied to FA Blockhus.
The failure to apply the same standards to similarly situated employees constitutes inconsistent enforcement of company policy and undermines the “just cause” requirement mandated by the
Collective Bargaining Agreement (CBA). An employer cannot impose termination for conduct it
tolerates when committed by another employee under substantially similar circumstances.
Selective enforcement of workplace standards is inconsistent with fundamental principles of
fairness, due process, and contractual discipline.
Moreover, the disparity in treatment raises serious concerns regarding investigative neutrality. If one party’s communications were scrutinized, authenticated, and treated as policy violations warranting termination, while the other party’s documented misconduct was disregarded entirely, the investigatory process cannot be characterized as balanced or objective.
The evidence therefore supports the conclusion that FA Blockhus’s termination was not the result of consistent application of policy, but rather the product of a one-sided investigation and unequal disciplinary standards. Such selective enforcement materially undermines the legitimacy of the termination decision and warrants executive review as FA Lense is still currently employed.
The disparate treatment is legally significant for several reasons:
Similarly Situated Comparator
FA Lense was a United flight attendant subject to the same policies, the same Working Together Guidelines, and the same CBA standards. The alleged conduct occurred during the same period, involved the same parties, and implicated the same behavioral standards cited in the termination letter.
Selective Enforcement:
United enforced its policies exclusively against FA Blockhus while declining to initiate investigation or discipline against FA Lense for comparable communications. Selective enforcement of company policy undermines any assertion of neutral application of standards and weakens the employer’s “just cause” determination.
Pretext and Investigatory Bias:
The company’s reliance on unauthenticated screenshots attributed to FA Blockhus, contrasted with its failure to scrutinize authenticated messages sent by FA Lense, supports an inference of investigative bias. This asymmetrical treatment suggests that the investigation was outcome-driven rather than
evidence-driven.
Undermining the “Honest Belief” :
Defense An employer cannot credibly assert an “honest belief” in misconduct where it disregards materially similar conduct by the accuser. The failure to apply equal scrutiny erodes the integrity of the investigative process and calls into question whether the termination decision was genuinely based on policy violations or was instead influenced by credibility assumptions and institutional alignment.
Contractual Implications Under the CBA:
The CBA’s just-cause requirement necessarily includes consistent application of discipline. Termination for conduct that is tolerated when committed by another employee under materially similar circumstances is inconsistent with just cause and suggests arbitrary or capricious decision-making.