UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID SAMBRANO, individually and on 

behalf of all others similarly situated, et al.,

Plaintiffs,

v. Civil Action No.: 4:21-cv-01074-P

UNITED AIRLINES, INC., 

Defendant.

PLAINTIFFS’ SUPPLEMENTAL BRIEF 

Case 4:21-cv-01074-P Document 260 Filed 05/02/24 Page 1 of 8 PageID 19148
The Supreme Court’s recent decision in Muldrow v. City of St. Louis, 601 U.S. ---, 144 S. 

Ct. 967 (2024), provides powerful support for Plaintiffs’ pending request for reconsideration of 

this Court’s decision dismissing several of Plaintiffs’ claims and concluding that some Plaintiffs 

had not sufficiently alleged an adverse employment action under Title VII. Doc. 231 at 3–7. In 

particular, the Court rejected the sufficiency of Plaintiffs’ allegations about draconian maskingand-testing rules like those that banished employees to eating meals alone outside and other 

punitive measures United took to set certain employees apart to face ridicule and coercion. 

According to the Court, those events did not rise to the level of altering the “terms, conditions, or 

privileges of employment” because they did not clear the “de minimis” or “materiality” standard 

recently established by the Fifth Circuit. Id. This Court further concluded that “the ‘de minimis’ 

and ‘materiality’ standards are one and the same.” Id. 

As already shown, that approach subjected Plaintiffs to an improperly high standard at the 

pleading stage, and the Court should grant Plaintiffs’ motion for reconsideration. Doc. 241. But 

Muldrow provides further reason to reconsider that decision: the Supreme Court has now 

“change[d] the legal standard” for Title VII claims by “lower[ing] the bar ... plaintiffs must meet”

for showing an adverse employment action. 144 S. Ct. at 975 & n.2 (2024). Rather than requiring 

Plaintiffs to show a “material harm[],” they need only show “some harm.” Id. at 972–73. Plaintiffs 

easily meet that standard.

1. There can be no dispute that Muldrow significantly altered the landscape for determining 

whether a plaintiff has identified a discriminatory impact to the terms, conditions, or privileges of

employment. In Muldrow, the Supreme Court rejected the heightened standards that courts have 

applied when considering Title VII claims. A Title VII plaintiff “need not show that the injury 

[from discrimination] satisfies a significance” or materiality test, but rather must only “show some 

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harm” from the discrimination. Id. at 972–73 (emphases added). As Justice Kavanaugh correctly 

observed, this is “a relatively low bar” that a plaintiff “should easily be able to show[.]” Id. at 980 

(Kavanaugh, J., concurring in the judgment). In fact, as Justice Kavanaugh further observed, that

standard affords Title VII plaintiffs many ways to satisfy their burden by showing a harm in terms 

of: “money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, 

career prospects, interest level, perks, professional relationships, networking opportunities, effects 

on family obligations, or the like.” Id. (Kavanaugh, J., concurring in the judgment). 

In reaching this decision, the Supreme Court rejected the extra-textual standard that has

infected many Title VII decisions, where courts reject “minor alterations of employment,” 

requiring instead a showing of “material harm[].” Id. at 973. That approach led courts to look for 

claims about lost “title, salary, or benefits,” ignoring claims of “only minor changes in working 

conditions.” Id. In other words, this led courts to read “de minimis” as equivalent to “material.” 

The Supreme Court rejected that approach, holding that a Title VII plaintiff “does not have

to show ... that the harm incurred was ‘significant’ ... or any similar adjective,” such as material.

Id. at 974. Rather, the plaintiff must only show that she was “treat[ed] worse” based on religious 

beliefs. Id. And nothing in the statute “says anything about how much worse.” Id. And the worse

treatment need not result in “economic or tangible” harm. Id. (quotation marks omitted). Simply 

put, “there is nothing” in the statute that “establish[es] an elevated threshold of harm.” Id.1

 

1

As Justice Kavanaugh put it: “The discrimination is harm.” Id. at 980 (Kavanaugh, J., concurring 

in the judgment). United will no doubt point to criticisms of the majority opinion found in the 

concurrences from Justices Thomas and Alito. And United will likely suggest that there is still a 

“trifling harm” exception under Title VII that excuses their actions. Id. at 977 (Thomas, J., 

concurring in the judgment). But that ignores the import of the Muldrow decision, which is that 

companies cannot take intentional discriminatory action against their employees and employees 

are not obligated to make a materiality showing to prove discrimination. Id. at 976. As Justice 

Thomas notes, the change in employment terms (i.e., working conditions) need only be 

“disadvantageous” in some respect. Id. at 977 (Thomas, J., concurring in the judgment).

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2. Muldrow thus deals a fatal blow to United’s repeated insistence that Plaintiffs must show 

material harm. Mot. to Dismiss at 2 (Doc. 209) (arguing that “material” and “more than de 

minimis” are equivalent (citing Hamilton v. Dallas County, 79 F.4th 494, 504 (5th Cir. 2023))). 

As United sees it, Title VII allows it to discriminate against its employees, provided it only 

discriminates a little bit or in trivial ways. As the playground adage goes: “no blood, no foul.” 

But that standard, the Supreme Court has now confirmed, has no basis in Title VII’s text. Muldrow, 

144 S. Ct. at 972. 

Muldrow also confirms that this Court’s motion-to-dismiss decision must be reconsidered. 

In that decision, the Court noted that the Fifth Circuit in Hamilton “left ‘for another day the precise 

level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s 

terms, conditions, or privileges of employment.’” Doc. 231 at 5 (quoting 79 F.4th at 505). And 

the Court nonetheless applied a materiality standard. Id. at 6 (“In other words, the ‘de minimis’

and ‘materiality’standards are one and the same.”). But Muldrow answers this question, rejecting 

the materiality standard and confirming that a plaintiff need only show that she was “left worse 

off.” 144 S. Ct. at 977. Further, Muldrow confirms that courts need not wade into “how much 

worse” off. Id. at 974. What matters is that there is “some injury” and “that the injury asserted 

concern the terms or conditions of” employment. Id. at 976.

Thus, with Muldrow in place, there is no need to search for post-Hamilton guidance about

the level of harm sufficient to maintain a Title VII discrimination claim. Indeed, that inquiry led 

this Court to a conclusion Muldrow now rejects. The Court compared Plaintiffs’ allegations about 

changed workplace conditions to the allegations in Harrison v. Brookhaven School District, 82 

F.4th 427, 432 (5th Cir. 2023), where the plaintiff was subject to a “$2,000 out-of-pocket 

expenditure,” and to the allegations in Hamilton about “the inability to take weekends off[.]” 

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Doc. 231 at 6–7. Using those allegations as the yardstick, the Court concluded that Plaintiffs 

Castillo and Hamilton had not identified sufficiently similar levels of harm. Id. But Muldrow 

rejects such a comparison. Rather, the test is whether Plaintiffs alleged “some harm” from United’s 

actions, and the exact degree of harm is irrelevant. Muldrow, 144 S. Ct. at 972, 974. 

3. As Plaintiffs already demonstrated, the Second Amended Complaint sufficiently alleges 

such harm in spades. Plaintiffs Hamilton and Castillo allege that United required them to wear 

respirators (not masks) without training or oxygenation breaks. SAC ¶¶ 116, 128 (Doc. 156). 

Further, Castillo alleges that this requirement put him “and his co-workers at significant safety 

risk” by limiting “his ability to communicate with colleagues during important maintenance 

activities.” Id. ¶ 117. Plaintiffs also allege that United waged a campaign of coercion to pressure 

them to abandon their beliefs and health. Id. ¶¶ 49–56, 63–79. And this context is certainly 

“suggestive of intentional discrimination.”2

 Muldrow, 144 S. Ct. at 976. Indeed, class discovery 

has confirmed that United wanted to punish employees with masking-and testing accommodations 

by making the policy sound “very serious” and terminating those who had just two infractions. 

See Doc. 239 at 23–26; Doc. 243 at App.72–73, 94, 130, 165; Doc. 243-1 at App.409, 443. 

Accordingly, Castillo’s and Hamilton’s allegations clearly suffice to state a claim, and the Court 

should apply Muldrow when reconsidering its decision dismissing their claims. 

Additionally, Muldrow confirms that the remaining claims also satisfy the adverse 

employment action requirement, and the Court should grant Plaintiffs’ certification motion. United 

2 As Muldrow confirms, these harms cannot be trivialized as merely the ordinary travails of the 

workplace. 144 S. Ct. at 976. Rather, the focus should be on whether the plaintiff has shown that 

the changes in the terms or conditions of employment were the result of discriminatory actions, 

where the employer took the actions “because of” sex, race, religion, or other protected trait. Id. 

That is precisely what Plaintiffs have alleged—and shown—here. United’s actions were done 

intentionally to punish the dissenting voices who dared to claim an exemption from the mandate. 

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made the decision to put every Plaintiff on unpaid leave, and even though it later changed course 

because of this litigation, that universal decision altered the terms and conditions of each class 

member’s employment—they were each singled out for harassment in the workplace and forced 

to plan for a transition to extended leave without pay. Doc. 242 at 17–18; Doc. 239 at 15–18. As 

explained above, even for those United subjected to the masking-and-testing protocols, those 

protocols altered Plaintiffs’ employment in numerous and intentionally discriminatory ways. See 

Doc. 239 at 19–21. Thus, Plaintiffs who went on unpaid leave, those who suffered discrimination

under the masking-and-testing regime, and those who retired under duress or who were terminated

certainly meet the low bar set out in Muldrow—that the injury (of any sort or degree) “concern the 

terms or conditions of” employment.3

 144 S. Ct. at 976. 

* * *

The central point of Muldrow is that Title VII only requires a plaintiff to show some

disadvantageous change in their employment situation. Plaintiffs have alleged, and class discovery 

has confirmed, that United intentionally altered Plaintiffs’ working conditions (via unpaid leave, 

onerous masking and testing, and transfers) to coerce and punish their inability to receive a 

COVID-19 vaccine. Plaintiffs maintain that even under previous standards they would prevail, 

but now, in light of the Supreme Court’s lowering the standard for Title VII plaintiffs to 

demonstrate that they suffered harm from an employer’s discrimination, the Court should grant 

Plaintiffs’ motion for reconsideration and certify Plaintiffs’ proposed class.

3 The same is true for the other Plaintiffs who allege different harm. Employees such as Plaintiff 

Jonas, like the plaintiff in Muldrow, were transferred to less prestigious positions due to their 

beliefs or health. See Doc. 169 at 12 (explaining that Plaintiff Jonas’s transfer to an Agent on 

Demand position caused her to lose union protection and the ability to work additional or overtime 

shifts). And, of course, subjecting all employees to a vaccine mandate and then stripping certain 

employees of their income undoubtedly impacted the terms and conditions of their employment. 

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May 2, 2024 Respectfully submitted,

/s/ Mark R. Paoletta

Mark R. Paoletta*

D.C. Bar No. 422746

Gene C. Schaerr*

D.C. Bar No. 416368

Brian J. Field*

D.C. Bar No. 985577

Cristina Martinez Squiers

Texas Bar No. 24093764

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

Facsimile: (202) 776-0136

mpaoletta@schaerr-jaffe.com

* Admitted pro hac vice 

/s/ John C. Sullivan

John C. Sullivan

Texas Bar No. 24083920

David Austin R. Nimocks

Texas Bar No. 24002695

S|L LAW PLLC

610 Uptown Boulevard, Suite 2000

Cedar Hill, TX 75104

Telephone: (469) 523-1351

Facsimile: (469) 613-0891

john.sullivan@the-sl-lawfirm.com

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CERTIFICATE OF SERVICE

On May 2, 2024, I filed the foregoing document with the clerk of court for the United States 

District Court, Northern District of Texas. I hereby certify that I have served the document on all 

counsel and/or pro se parties of record by a manner authorized by Federal Rule of Civil Procedure 

5(b)(2) (ECF System).

/s/ Brian J. Field 

Brian J. Field 

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